Resolution relating to Article 1

The United Nations Conference on the Law of Treaties,

Recalling that the General Assembly of the United Nations, by its resolution 2166 (XXI) of 5 December 1966, referred to the Conference the draft articles contained in chapter II of the report of the International Law Commission on the work of its eighteenth session,

Taking note that the Commission’s draft articles deal only with treaties concluded between States,

Recognising the importance of the question of treaties concluded between States and international organisations or between two or more international organisations,

Cognisant of the varied practices of international organisations in this respect, and

Desirous of ensuring that the extensive experience of international organisations in this field to be utilised to the best advantage,

Recommends to the General Assembly of the United Nations that it refer to the International Law Commission the study, in consultation with the principal international organisations, of the question of treaties concluded between States and international organisations or between two or more international organisations.

Materials: see the materials mentioned in Article 1.

Vienna Conference Vote: 85:0:13

Selected literature: see the literature mentioned in Article 1.

resolution	63
CONTENTS
	Paras.
A. History ................................................................................................	1
B. Interpretation of Resolution ............................................................	2
C. Appreciation .........................................................................................	4
A. HISTORY
In 1969 the Conference adopted, together with Article 1 (q.v., N. 1–2), the		1
Resolution relating to Article 1, as proposed by the Swedish delegation.1
B. INTERPRETATION OF RESOLUTION
The Resolution confirms that the Convention itself deals exclusively with		2
treaties between States (Article 1, N. 8). It recognises the importance of the
question of treaties concluded between States and international organisa-
tions or between two or more organisations, with an appreciation of the
delicate nature of the problem in view of the varied practises of international
organisations. Given the extensive experience of international organisations
in this field, the Vienna Conference was desirous of utilising their expertise
to the best advantage.
On 12 November 1969 the General Assembly of the United Nations		3
unanimously adopted Res. 2501 (XXIV), recommending the ILC to study
the matter at issue. The resulting Vienna Convention on the Law of Treaties

Between States and International Organisations or Between International Organisations was adopted on 21 March 1986.2

The first 72 Articles of the 1986 Vienna Convention deal with the same subjects as the first 72 articles of the 1969 Convention. Suitably adapted, the provisions of the

1See Blix of the Swedish delegation, OR 1968 CoW 15, para. 5. The proposal received wide support; see the statements, e.g., by the delegations of Uruguay ( Jiménez de Aréchaga), ibid. para. 12; Israel, ibid. 16, para. 19; Brazil, ibid. 18, para. 36; Finland (Castren), ibid. para. 39; Switzerland (Bindschedler), ibid. para. 44. The Resolution was adopted at OR 1969 Plenary 179, and annexed to the Final Act of the Conference (q.v.; see also Article 85,

N. 1). See also Rosenne, Law of Treaties 105 f. 2 ILM 25 (1986) 543 .

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former follow closely those of the latter. The 1986 Convention is not yet in force, but its provisions are generally accepted as applicable law.3

C. APPRECIATION

4The Resolution eased the adoption of Article 1 (q.v., N. 2) which limits the scope of the 1969 Convention to States alone. It gave the necessary impetus to the UN General Assembly to recommend the matter to the ILC which, in turn, resulted in the adoption of the 1986 Convention. On the whole, the Resolution confirmed the importance which States attached to the need to regulate a burgeoning area of international law (Article 1, N. 12).

3 Aust, Modern Treaty Law 8.

Article 2

Use of terms

1.For the purposes of the present Convention:

(a)“treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

(b)“ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;

(c)“full powers” means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty;

(d)“reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal e ect of certain provisions of the treaty in their application to that State;

(e)“negotiating State” means a State which took part in the drawing up and adoption of the text of the treaty;

(f ) “contracting State” means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force;

(g)“party” means a State which has consented to be bound by the treaty and for which the treaty is in force;

(h)“third State” means a State not a party to the treaty;

(i)“international organisation” means an intergovernmental organisation.

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2.The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State.

Article 2 Expressions employées

1.Aux fins de la présente Convention:

a)l’expression “traité” s’entend d’un accord international conclu par écrit entre Etats et régi par le droit international, qu’il soit consigné dans un instrument unique ou dans deux ou plusieurs instruments connexes, et quelle que soit sa dénomination particulière;

b)les expressions “ratifi cation”, “acceptation”, “approbation” et “adhesion” s’entendent, selon le cas, de l’acte international ainsi dénommé par lequel un Etat établit sur le plan international son consentement à être lié par un traité;

c)l’expression “pleins pouvoirs” s’entend d’un document émanant de l’autorité compétente d’un Etat et désignant une ou plusieurs personnes pour représenter l’Etat pour la négociation, l’adoption ou l’authentification du texte d’un traité, pour exprimer le consentement de l’Etat à être lié par un traité ou pour accomplir tout autre acte à l’égard du traité;

d)l’expression “reserve” s’entend d’une déclaration unilatérale, quel que soit son libellé ou sa désignation, faite par un Etat quand il signe, ratifie, accepte ou approuve un traité ou y adhère, par laquelle il vise à exclure ou à modifier l’e et juridique de certaines dispositions du traité dans leur application à cet Etat;

e)l’expression “Etat ayant participé à la négociation” s’entend d’un Etat ayant participé à l’élaboration et à l’adoption du texte du traité;

f)l’expression “Etat contractant” s’entend d’un Etat qui a consenti à être lié par le traité, que le traité soit entré en vigueur ou non;

g)l’expression “partie” s’entend d’un Etat qui a consenti à être lié par le traité et à l’égard duquel le traité est en vigueur;

h)l’expression “Etat tiers” s’entend d’un Etat qui n’est pas partie au traité;

i)l’expression “organisation internationale” s’entend d’une organisation intergouvernementale.

2.Les dispositions du paragraphe 1 concernant les expressions employées dans la présente Convention ne préjudicient pas à l’emploi de ces expressions ni au sens qui peut leur être donné dans le droit interne d’un Etat.

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Artikel 2 Begri sbestimmungen

1.Im Sinne dieses Übereinkommens

a)bedeutet “Vertrag” eine in Schriftform geschlossene und vom Völkerrecht bestimmte internationale Übereinkunft zwischen Staaten, gleichviel ob sie in einer oder in mehreren zusammengehörigen Urkunden enthalten ist und welche besondere Bezeichnung sie hat;

b)bedeutet“Ratifikation”,“Annahme”,“Genehmigung”und“Beitritt”jeweilsdie sobezeichnetevölkerrechtlicheHandlung,durchdieeinStaatiminternationalen Bereich seine Zustimmung bekundet, durch einen Vertrag gebunden zu sein;

c)bedeutet “Vollmacht” eine vom zuständigen Organ eines Staates errichtete Urkunde, durch die einzelne oder mehrere Personen benannt werden, um in Vertretung des Staates den Text eines Vertrags auszuhandeln oder als authentisch festzulegen, die Zustimmung des Staates auszudrücken, durch einen Vertrag gebunden zu sein, oder sonstige Handlungen in bezug auf einen Vertrag vorzunehmen;

d)bedeutet “Vorbehalt” eine wie auch immer formulierte oder bezeichnete, von einem Staat bei der Unterzeichnung, Ratifikation, Annahme oder Genehmigung eines Vertrags oder bei dem Beitritt zu einem Vertrag abgegebene einseitige Erklärung, durch die der Staat bezweckt, die Rechtswirkung einzelner Vertragsbestimmungen in der Anwendung auf diesen Staat auszuschliessen oder zu ändern;

e)bedeutet “Verhandlungsstaat” einen Staat, der am Abfassen und Annehmen des Vertragstextes teilgenommen hat;

f ) bedeutet “Vertragsstaat” einen Staat, der zugestimmt hat, durch den Vertrag gebunden zu sein, gleichviel ob der Vertrag in Kraft getreten ist oder nicht;

g)bedeutet “Vertragspartei” einen Staat, der zugestimmt hat, durch den Vertrag gebunden zu sein, und für den der Vertrag in Kraft ist;

h)bedeutet “Drittstaat” einen Staat, der nicht Vertragspartei ist;

i)bedeutet “internationale Organisation” eine zwischenstaatliche Organisation.

2.Die Bestimmungen des Absatzes l über die in diesem Übereinkommen verwendeten Begri e beeinträchtigen weder die Verwendung dieser Begri e noch die Bedeutung, die ihnen im innerstaatlichen Recht gegebenenfalls zukommt.

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ILC Draft 1966

Article 2—Use of Terms

1.For the purposes of the present articles:

(a)“Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

(b)“Ratification”, “Acceptance”, “Approval” and “Accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty.

(c)“Full powers” means a document emanating from the competent authority of a State designating a person to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty.

(d)“Reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, acceding to, accepting or approving a treaty, whereby it purports to exclude or to vary the legal e ect of certain provisions of the treaty in their application to that State.

(e)“Negotiating State” means a State which took part in the drawing up and adoption of the text of the treaty.

(f)“Contracting State” means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force.

(g)“Party” means a State which has consented to be bound by the treaty and for which the treaty is in force.

(h)“Third State” means a State not a party to the treaty.

(i)“International organisation” means an intergovernmental organisation.

2.The provisions of paragraph 1 regarding the use of terms in the present articles are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State.

Materials:

WALDOCK Report 1: Article 1.

Minutes: YBILC 1962 I 46 , 168 , 214 f, 239 f, 262 f.

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ILC Report 1962: Article 1.

WALDOCK Report IV: Article 1.

Minutes: YBILC 1965 1 7 , 244, 256, 307 f.

ILC Report 1965: Article 1.

Minutes: YBILC 1966 1/2 287 f, 324 f, 348.

ILC Report 1966: Article 2.

Minutes: OR 1968 CoW 21 ; OR Plenary 3 f, 157.

Vienna Conference Vote: 94:0:3

Subpara. 1(a) “treaty”

Selected Literature:

B-J

J.A. Barberis, Le concept de traité international et ses limites, AFDI 30 (1984) 239 ; R. Bernhardt, Treaties, EPIL 4 (2000) 926 ; A. Bolintineanu, Expression of Consent to be Bound by a Treaty in the Light of the 1969 Vienna Convention, AJIL 68 (1974) 672; C. Brölmann, Law-Making Treaties: Form and Function in International Law, Nordic JIL 74 (2005) 383 ; C. Chinkin, A Mirage in the Sand? Distinguishing Binding and NonBinding Relations Between States, Leiden JIL 10 (1997) 223 ; R.E. Dalton, International Documents of a Non-Legally Binding Character, reproduced in: AJIL 88 (1994) 515 ; D.C. Dicke, The Heleanna Case and International LawmakingTreaties: A New Form of Concluding aTreaty? AJIL 69 (1975) 624 ; M. Fitzmaurice, The Identification and Character ofTreaties and Treaty Obligations Between States in International Law, BYBIL 73 (2002) 141 ; J.K. Gamble, Multilateral Treaties: The Significance of the Name of the Instrument, Californian WILJ 10 (1980) 1 ; Ph. Gautier, Article 2, in: Corten/Klein (eds.) 48 ; F.S. Hamzeh, Agreements in Simplified Form—A Modern Perspective, BYBIL 43 (1968–9) 179 ; D.N. Hutchinson, The Significance of the Registration or Non-Registration of an International Agreement in Determining Whether or Not It Is a Treaty, Current LP 46 (1993) 257 ; K.I. Igweike, The Definition and Scope of “Treaty” under International Law, IJIL 28 (1988) 249; R.Y. Jennings, Treaties as “Legislation”, in: G.M. Wilner (ed.), Jus et societas. Essays in Tribute to W. Friedman ( ) .

K-Q

J. Klabbers, Qatar v. Bahrain: The Concept of “Treaty” in International Law, AVR 33 (1995) 361 ; Id., The Concept of Treaty in International Law (1996); U. Knapp/E. Martens, Article 102, in: B. Simma (ed.), The Charter of the United Nations. A Commentary (1995) 1103 ; P. McDade, The E ect of Article 4 of the Vienna Convention on the Law of Treaties 1969, ICLQ 35 (1986) 499 ; J.H. McNeill, International Agreements: Recent US—UK Practice Concerning the Memorandum of Understanding, AJIL 88 (1994) 821 ; P.K. Menon, The Law of Treaties with Special Reference to the Vienna Convention of 1969, Revue DISCDP 56 (1978) 133 ; F. Münch, Comments on the 1968 Draft Convention on the Law of Treaties. Non-Binding Agreements, ZaöRV 29 (1969) 1 ; D.P. Myers, The Names and Scope of Treaties, AJIL 51 (1957) 574 ; C. Osakwe, The Concept and Forms of Treaties Concluded by International Organizations in: K. Zemanek (ed.), Agreements of International Organizations and the Vienna Convention on the Law of Treaties (1971) 165 ; J. Quigley, The Israel-PLO Interim Agreements: Are They Treaties? Cornell ILJ 30 (1997) 717 .

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R-Z

K. Raustiala, Form and Substance of International Agreements, AJIL 99 (2005) 581 ; S. Rosenne, Developments in the Law of Treaties 1945–1986 (1989); Id., The Perplexities of Modern International Law (2004); Id., The Qatar/Bahrain Case. What is a Treaty? A Framework Agreement and the Seising of the Court, Leiden JIL 8 (1995) 161 ; M. Rotter, Die Abgrenzung zwischen völkerrechtlichem Vertrag und ausserrechtlicher zwischenstaatlicher Abmachung. Zu Art. 2(1)(a) der Vienna Convention on the Law of Treaties 1969, in: R. Marcic et al. (eds.), Internationale Festschrift für A. Verdross zum 80. Geburtstag (1971) 413 ; Id., The Austrian State Treaty—or What is Left of it, in: W. Benedek, Development and Developing International and European Law (1999) 725 ; A.P. Rubin, The International Legal E ects of Unilateral Declarations, AJIL 71 (1977) 1 ; G. Sacerdoti, Bilateral Treaties and Multilateral Instruments on Investment Protection, RC 269 (1997) 255 ; E. Šar evi , Völkerrechtlicher Vertrag als “Gestaltungsintrument” der Verfassungsgebung: Das Daytoner Verfassungexperiment mit Präzedenzwirkung? AVR 39 (2001) 297 ; O. Schachter, The Twilight Existence of Non-Binding Agreements, AJIL 71 (1977) 296 ; E.W. Vierdag, The Law Governing Treaty Relations between Parties to the Vienna Convention on the Law of Treaties and States not Party to the Convention, AJIL 76 (1982) 779 ; W. Wengler, Rechtsvertrag, Konsensus und Absichtserklärung im Völkerrecht, Juristenzeitung 31 (1976) 193 ; K. Widdows, What is an Agreement in International Law? BYBIL 50 (1979) 117; L. Wildhaber, Treaties, Multilateral, EPIL 4 (2000) 949 ; K. Zemanek, International Organizations—Treaty-Making Power, EPIL 2 (1995) 1343 ; Id., Unilateral Legal Acts Revisited, in: K. Wellens (ed.), International Law: Theory and Practice Essays in Honour of E. Suy (1998) 209 .

The basis of the commentary on Article 2, subpara. 1(a) was prepared by Alison Wiebalck.

Subpara. 1(b) “Ratification”, “Acceptance”, “Approval” and “Accession”

Selected Literature (in addition to the literature mentioned in Articles 11, 14 and 15, q.v.):

Ph. Gautier, Article 2, in: Corten/Klein (eds.) 63 .

Subpara. 1(c) “Full Powers”

Selected Literature (in addition to the literature mentioned in Article 7, q.v.):

Ph. Gautier, Article 2, in: Corten/Klein (eds.) 67 f.

Subpara. 1(d) “Reservation”

Selected Literature (in addition to the literature mentioned in Articles 19–23, q.v.):

Ph. Gautier, Article 2, in: Corten/Klein (eds.) 68 .

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Subpara. 1(e) “Negotiating State”

Selected Literature (in addition to the literature mentioned in Article 9, q.v.):

Ph. Gautier, Article 2, in: Corten/Klein (eds.) 72 f; A.I. Sow, La négociation des traités du Conseil de l’Europe au sens de l’article 2(e) (sic) de la Convention de Vienne sur le droit des traités, Revue DISDP 78 (2000) 279 .

Subpara. 1(f) “Contracting State”

Selected Literature:

Ph. Gautier, Article 2, in: Corten/Klein (eds.) 74.

Subpara. 1(g) “Party”

Selected Literature:

Ph. Gautier, Article 2, in: Corten/Klein (eds.) 74 f.

Subpara. 1(h) “Third State”

Selected Literature (in addition to the literature mentioned in Articles 34–38, q.v.):

Ph. Gautier, Article 2, in: Corten/Klein (eds.) 75.

Subpara. 1(i) “International Organisation”

Selected Literature (in addition to the literature mentioned in Article 5, q.v.):

Ph. Gautier, Article 2, in: Corten/Klein (eds.) 75 f.

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			CONTENTS
				Paras.
A. Scope of Article 2 ..............................................................................				1
B. “Treaty” (Subpara. 1[a]) ......................................................................				2
	1.	Background .....................................................................................		2
		a)	Introduction ...............................................................................	2
		b) History .......................................................................................		3
	2.	Interpretation of Subpara. 1(a) .........................................................		4
		a)	Scope ..........................................................................................	4
		b) International Agreement .............................................................		6
		c)	Concluded Between States ..........................................................	9
		d) Form of Agreement .....................................................................		15
		e)	Governed by International Law ...................................................	18
		f )	Agreements Not Falling Under Subpara. 1(a) ..............................	20
	3.	Context ...........................................................................................		21
		a)	Relationship to Other Provisions ................................................	21
		b) Matters Not Dealt With .............................................................		22
		c)	Customary Basis of Subpara. 1(a) ................................................	23
	4.	Appreciation of Supara. 1(a) ............................................................		24
C. “Ratification”, “Acceptance”, “Approval” and
	“Accession” (Subpara. 1[b]) ................................................................			25
	1.	History ............................................................................................		25
	2.	Interpretation of Subpara. 1(b) ........................................................		26
	3.	Relationship to Other Provisions .....................................................		27
D. “Full Powers” (Subpara. 1[c]) ............................................................				28
	1.	History ............................................................................................		28
	2.	Interpretation of Subpara. 1(c) .........................................................		29
	3.	Relationship to Other Provisions .....................................................		31
E. “Reservation” (Subpara. 1[d]) ............................................................				32
	1.	History ............................................................................................		32
	2.	Interpretation of Subpara. 1(d) ........................................................		33
	3.	Relationship to Other Provisions .....................................................		38
F.	“Negotiating State” (Subpara. 1[e]) ..................................................			39
	1.	History ............................................................................................		39
	2.	Interpretation of Subpara. 1(e) .........................................................		40
	3.	Relationship to Other Provisions .....................................................		43
G. “Contracting State” (Subpara. 1[f]) ................................................				44
	1.	History ............................................................................................		44
	2.	Interpretation of Subpara. 1(f ) .........................................................		45
	3.	Relationship to Other Provisions .....................................................		46

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H. “Party” (Subpara. 1[g]) .......................................................................			47
	1.	History ............................................................................................	47
	2.	Interpretation of Subpara. 1(g) ........................................................	48
	3.	Relationship to Other Provisions .....................................................	49
I.	“Third State” (Subpara. 1[h]) ............................................................		50
	1.	History ............................................................................................	50
	2.	Interpretation of Subpara. 1(h) ........................................................	51
	3.	Relationship to Other Provisions .....................................................	52
J.	“International Organisation” (Subpara. 1[i]) .................................		53
	1.	History ............................................................................................	53
	2.	Interpretation of Subpara. 1(i) .........................................................	54
	3.	Relationship to Other Provisions .....................................................	55
K. Proviso in Para. 2 ...............................................................................			56
L. Appreciation of Article 2 ..................................................................			57
A. SCOPE OF ARTICLE 2
Article 2 deals with the use of terms. It assigns particular meanings to cer-				1
tain expressions frequently referred to in the Convention, and safeguards
their use when employed in other treaties with a di erent meaning.1 Thus,
as the opening sentence explains, the meanings mentioned are purely for
the purposes of the present Convention. The aim of Article 2 is to assist

the reader of the Convention when interpreting its terms and, not least, to ensure that the Convention articles are read as a combined whole.2 While in fact the meanings serve as definitions in a broader sense, the Convention refrains from employing this word in view of the limited reach of the terms.3 Still, while the meanings are “special” as in Article 31, para. 4 (q.v., N. 24),

1See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 34, para. 30.

2Statements in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1969 Plenary 4, para. 16; Ago, President of the Vienna Conference, ibid. para. 17 (“[i]f those who later interpreted the text noted di erences between the [Convention] and other conventions, they would ask themselves what had been the reasons for these di erences, and that might lead

to di culties of interpretation”); and Waldock in the ILC YBILC 1965 I 14, para. 56 (“it would be a mistake to place any reliance on the assumption that a long series of . . . articles would be read as a whole”).

3 See the statements in the ILC by Briggs, YBILC 1962 I 172, para. 69 (“[the ILC] did not propose to lay down theoretical definitions, but merely . . . the manner in which certain terms were used in the [Convention]”, and at YBILC 1965 I 10, para. 8 (“open the floodgates to doctrinal disputes by implying that the [ILC] was attempting a logical scientific definition”); and by Waldock, ibid. 15 f, para. 71 (“there was a tendency to regard definitions as something absolute”).

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it can be assumed that the terms have developed into general international law (see, e.g., N. 23).4 The UN Law of the Sea Convention of 1982 contains a list of meanings with a similar opening sentence.5

The list in para. 1 is not exhaustive.6 Interestingly, certain terms originally listed in the travaux préparatoires are no longer mentioned in Article 2, e.g., “signature” (N. 26) and “bilateral and multilateral treaties”.7 The use of the term “depositary” has been transferred to Articles 76 and 77 where the various functions are listed (q.v.).8

B.“TREATY” (SUBPARA. 1[A])

1.Background

a) Introduction

2States have developed various means to establish rights and obligations among themselves. The most important method has been the use of the international instrument variously labelled agreement, declaration, protocol, charter and treaty—to mention but a few (N. 17).9 Traditionally, the nomenclature was not precise, nor was there any generally accepted meaning of the word “treaty”.10 The 1935 Harvard Draft defined a “treaty” as a “formal instrument of agreement by which two or more States establish or seek to establish a

4 Gautier, Article 2, N. 1.

5 See its Article 1, para. 1 (“[f]or the purposes of this Convention”).

6See the statements by Bindschedler of the Swiss delegation in Vienna, OR 1968 CoW 27, para. 49 (“[t]he list of terms in Article 2 clearly could not be exhaustive and must contain only the absolutely necessary definitions”); and by the Expert Consultant, Sir Humphrey Waldock, ibid. 34, para. 26 “([the ILC] had not intended to list all the necessary condi-

tions for the validity of treaties”).

7 Employed in Article 1 of Waldock Report I, YBILC 1962 I 31. See also Gautier, Article 2, N. 52–55.

8 Originally defined in Waldock, Report I, ibid. 32.

9Myers, AJIL 51 (1957) 576, identifies nearly 40 di erent names. The fi rst paragraph of the Preamble (q.v., N. 8) refers to the “fundamental role of treaties in the history of international relations”. On the topic, see generally McNair, Law of Treaties 22 ; Id., The Functions and Di ering Legal Characteristics of Treaties, BYBIL 11 (1930) 100 ; M. Brandon, Analysis of the Terms “Treaty” and “International Agreement” for Purposes of Registration Under Article 102 of the United Nations Charter, AJIL 47 (1953) 49 ; Sh. Rosenne, United Nations Treaty Practice, RC 86 (1954 II) 281 ; K.-H. Ziegler, Conclusion and Publication of International Treaties in Antiquity, Israel LR 29 (1995)

233 .

10Lauterpacht, YBILC 1953 II 105 (“in most cases, there is no apparent reason for the variation in the term used . . . dependent upon a factor no more decisive than the mood of the draftsman”); McNeill, AJIL 88 (1994) 823 at n. 8 (terminology a matter of “diplomatic nuance”). Article 36, subpara. 2(a) of the ICJ Statute refers to a “treaty”, and Article 38, subpara. 1(a) to “international conventions”.

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relation under international law between themselves”.11 Delegates at the San
Francisco Conference in 1945 expressed the need for a careful definition of
a treaty.12 However, as there was still uncertainty whether or not less formal
international agreements could properly be called treaties, Article 102 of the
UN Charter on the registration of such instruments remained ambiguous,
referring to “every treaty and every international agreement” (italics added).13
More than anything else, it was perhaps the increase in the number and
influence of international organisations after 1945 which made it necessary
to examine more closely the nature of agreements between States.
b) History
The ILC examined the meaning of the term “treaty” for over 16 years.14 In		3
1962 Waldock Report I attempted separate definitions of the terms “inter-

national agreement” and “treaty”, placing the general term first.15 The ILC Report 1962 combined the two definitions.16 The article was re-examined in Waldock Report IV17 and subjected to further debate in the ILC in 1965.18 Following further debate in 1966, the ILC adopted in its final Report Article 2, subpara. 1(a) which was to survive the Conference unchanged.19 In 1968 the Conference set out to discuss various amendments. The US amendment to re-introduce “other subjects of international law” was withdrawn while other amendments were referred to the Drafting Committee without decision. Final consideration, however, was deferred pending examination of the

11AJIL 29 (1935) Supplement 686.

12UNCIO XIII, 586, referred to by Knapp/Martens, Article 102, in: Simma (ed.), Charter of the United Nations, 1105.

13Italics added. See Knapp/Martens, ibid. 1105; Aust, Modern Treaty Law 17; Waldock in the ILC, YBILC 1962 I 168, para. 5.

14Brierly Report I, YBILC 1950 II 226; Lauterpacht Report I, YBILC 1953 II 90; Fitzmaurice Report I, YBILC 1956 II 95 . On the history, see also Fitzmaurice, BYBIL 73 (2002) 146 ; Widdows, BYBIL 50 (1979) 126 .

15See Article 1, paras. (a) and (b), YBILC 1962 II 31 (“[an] ‘international agreement’ means an agreement intended to be governed by international law and concluded between two or more States or other subjects of international law possessing international personality and having capacity to enter into treaties . . .; [b] ‘Treaty’ means any international agreement in any written form, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”, original italics); also the statement by Waldock in the ILC, YBILC 1962 I 47 f, para. 33.

16YBILC 1962 II 161 f. In the ILC, see the statements by Amado, YBILC 1962 I 49, para. 53; Waldock, ibid. 51, paras. 2 f, and 168, paras. 4 f; and Tsuruoka, ibid. 168, para. 6, and 214, para. 29.

17YBILC 1965 II 10 .

18For the debates, see YBILC 1965 I 5 .

19ILC Draft 1966, YBILC 1966 II 187 ; for the debate, see YBILC 1966 I/2 324, para. 56, and 348, para. 185, respectively.

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substantive articles.20 In 1969, the Plenary again did not vote immediately on Article 2.21 The Drafting Committee’s Report was postponed to allow for discussions on the relevant substantive articles before Article 2 was finally adopted by 94 votes to none, with three abstentions.22

2. Interpretation of Subpara. 1(a)

a) Scope

4Article 2 subpara. 1(a) defi nes a “treaty” as meaning an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. Thus, it sets out the various criteria which have to be met for an international agreement to qualify as a treaty for the purposes of the present Convention (N. 6–19).23 The provision serves as a tool for interpretation and does not set out a scientific definition nor stipulate the necessary conditions for the validity of treaties.24

5The notion of a treaty is employed throughout the Convention as a generic term covering all forms of written international agreements between States.25 The sub-paragraph is not independent and must be read together with the opening line of Article 2, para. 1 (N. 1) and Article 3 (q.v.), and in conjunction with all the articles to which it relates.26 Conversely, each succeeding

20OR 1968 CoW 38, para. 44. The debate is at OR 1968 CoW 21 ; see in particular the statements by the delegations of Canada, ibid. 23, para. 28; Switzerland (Bindschedler), ibid. 27, para. 49; and Argentina (Ruda), ibid. 28, para. 66 (“current debate should be a provisional discussion of Article 2, pending the approval of all the other articles”). The amendments are reproduced at OR Documents 111, para. 35.

21T he debate is reproduced at OR 1969 Plenary 3 f, 157.

22Ibid. 157, para. 48. The di erent terms in Article 2 were discussed partly independently and partly in connection with the substantive articles to which they related, Rosenne, Law of Treaties 110.

23ILC Report 1966, YBILC 1966 II 188, para. 1. See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 34, para. 30, and in the ILC, YBILC 1965 I 15 f, para. 74 (“merely to indicate that it was a statement of the meaning to be attached to particular phrases in the draft articles”); Waldock Report IV, YBILC 1965 II 11, para. 1.

24See statements in Vienna by the Chairman of the Drafting Committee, Yasseen, OR 1969 Plenary 4, para. 16; and the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 34, para. 26; Briggs, YBILC 1965 I 10, para. 8.

25ILC Report 1962, YBILC 1962 II 161, para. 2; ILC Report 1966, YBILC 1966 II 188, para. 2. See Brölmann, Nordic JIL 74 (2005) 392 (“[t]he conventional law of treaties is thus geared to form and procedure”).

26See the United Arab Republic delegation (el-Erian) in Vienna, OR 1968 CoW 26, para. 35: Waldock in the ILC, YBILC 1962 I 46, para. 13.

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article (as well as Article 1, q.v.) must be read together with the use of the term. This broad use of the term “treaty” sweeps into the law of treaties many forms of international agreements between States—whether in writing, bior multilateral,27 contractual or law-making,28 formal or informal.29

The Convention refers to multilateral treaties in Articles 40, 41, 55, 68, 60, para. 1, 69, para. 4, and 70, para. 2 (q.v.). Bilateral treaties are referred to only in Article 60, para. 1 (q.v., N. 17).

b) International Agreement
Article 2, subpara. 1(a) defines a treaty for purposes of the Convention as	6
being an international agreement. However, the latter is not a synonym of
the former. For instance, Article 102 of the UN Charter refers to “every treaty
and every international agreement”.30 As Article 3 (q.v.) confirms, the notion
of “agreement” is wide, and in particular wider than that of “treaty”. Thus,
all treaties are international agreements but not all international agreements
are treaties.31
The term “agreement” can refer to: (i) the concrete, i.e., a particular text in	7
written form; or (ii) the abstract, i.e., the “meeting of minds” consisting of an

o er and its acceptance between the parties (the synallagma). “Agreement” in Article 2, subpara. 1(a) in itself contains no particular requirements and refers to the latter. The purpose of the agreement, reflecting the parties’ intention, is to create binding legal relations between the parties (rather than merely political, programmatic or personal relations, N. 15),32 in particular, rights

27See Jennings/Watts, N. 583. In 1962 the ILC defined a “general multilateral treaty” as “a multilateral treaty which concerns general norms of international law or deals with matters of general interest to States as a whole”, see Article 1, subpara. 1(c), ILC Report 1962 II 161, para. 23, though the provision was later dropped (N. 3), ILC Report 1966, YBILC 1966 II 189, para. 8. On multilateral treaties, see Wildhaber, EPIL 4 (2000) 949 .

28On treaties as “legislation”, see generally Jennings, in: Essays Friedmann 159 ; also Dicke, AJIL 69 (1975) 625.

29Kearney/Dalton, AJIL 64 (1970) 503. See also Aust, Modern Treaty Law 19 ; Klabbers, AVR 33 (1995) 365.

30Waldock Report IV, YBILC 1965 II 11, para. 1.

31T hus, Article 2, subpara. 1(a) refers to an (rather than “any”) international agreement; on this, see Briggs, YBILC 1965 I 10, para. 10.

32Schachter, AJIL 71 (1977) 302; Menon, Revue DISCDP 56 (1978) 135. On the relevance of intention, see the Frontier Dispute (Burkina Faso/Mali) Case, ICJ Reports 1986 573 f; the observation by Mali, ibid. 573, para. 38, according to which “the comment by Mali’s head of State was merely ‘a witticism of the kind regularly uttered at press confer-

ences’ ”). See also the Note of 20 October 2003 of the Swiss Foreign Ministry, RSDIE 5 (2004) 662 f (“un process-verbal rédigé à l’issue d’une recontre internationale n’est en principe pas considéré comme un traité international”).

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and obligations which may, for instance, be declared or enforced in a court of law.33

8To be a treaty for the purposes of the Convention, the agreement has to be international. It creates internationally binding legal obligations (N. 14) and does not encompass, in particular, agreements falling within a State’s domestic sphere or under domestic law, i.e., agreements between individuals and other private entities among themselves or with the State (N. 20).34 Thus, the term “international” corresponds to some extent with the definition in Article 1 (q.v.), according to which the Convention applies to treaties “between States”.35

c) Concluded Between States

9The “treaty” in subpara. 1(a) is an international agreement concluded between States. An agreement cannot be a “treaty” unless and until it has been concluded.

10In international law there is no fixed meaning of the term “concluded”.36 In the Convention, neither “conclude” nor “conclusion” are defined as such. Analysis of Section I of Part II suggests that to conclude an agreement is to express consent to be bound by it as provided for in Articles 11–17 (q.v.). It is from that time on that the agreement has legal e ect (Article 18, q.v.), although it is only legally binding once the treaty has entered into force for that State (N. 48).37

11“Conclusion” refers to the whole set of procedures—whether simple or complex—which makes a treaty binding.38 “Concluded” implies a distinct act.

33Osakwe, Concept 176.

34Statements by the then USSR delegation in Vienna, OR 1968 CoW 30, para. 91; and by Gros in the ILC, YBILC 1962 I 215, para. 42. See also Waldock Report I, YBILC 1962 II 32, para. 2; Schachter, AJIL 71 (1997) 296 f.

35Waldock in the ILC, YBILC 1962 I 170, para. 32 (“[t]hough there was a certain tautology in the language, the emphasis on the international character of the treaty was necessary to keep the definition on the proper plane”).

36See Vierdag, BYBIL 59 (1988) 81, who proposes, ibid. 83, that the meaning should be sought in the content and context of each individual article in which it appears; also McDade, ICLQ 35 (1986) 507 .

37Aust, Modern Treaty Law 105.

38Blix of the Swedish delegation in Vienna, OR 1968 CoW 11, para. 2, McDade, ICLQ 35 (1986) 508; Vierdag, BYBIL 59 (1988) 84: Waldock Report I, YBILC 1962 II 30, paras. 9 f.

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States which have “concluded” are bound by a treaty without taking any further formal steps.39 A “concluded” treaty requires no further formalities.40

Subpara. 1(a) refers not to “conclusion”, but to an agreement which is con- 12 cluded. This means that from that point in time there is a definite engagement

that the parties are bound by the instrument under international law.41

Section I of Part II on the conclusion of treaties provides that a treaty is concluded when a person duly authorised to represent a State for the purpose of expressing the consent of the State to be bound by the treaty (Article 7, q.v.) expresses that consent by signature; exchange of instruments constituting a treaty; ratification, acceptance, approval or accession; or by any other means if so agreed, as provided for by Article 11. The various articles themselves as well as the structure of the Convention (Part II concerns the “Conclusion and Entry into Force”) indicate that “conclusion” and “entry into force” are two distinct stages, and in particular that signature and ratification come within the sphere of conclusion (Articles 2, 3, 6, 46, and 48, q.v.) but not of entry into force (N. 45, 48).42

In order to ascertain whether a contested agreement has been concluded, 13 regard must be had to the actual terms of the agreement and to the particular circumstances in which it was drawn up.43

In the Maritime Delimitation and Territorial Questions (Qatar/Bahrain) Case, the Foreign Ministers of the two countries had signed a text recording commitments, thereby, according to the Court, concluding a binding international agreement. The Court held in particular:

“[a]ccordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple record of a meeting similar to those drawn up with the Tripartite Committee; they do not merely give an account of discussions and summarise points of agreement and disagreement. They enumerate the commitments to which Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement creating rights and obligations for the Parties”.44

39Blix of the Swedish delegation in Vienna, OR 1968 CoW 11, para. 2 (relating to Article 1, not 2). Vierdag, BYBIL 59 (1988) 84 f, links Articles 2, subpara. 1(c), 7 and 11 to demonstrate that an instrument is “concluded” or becomes a treaty in the sense of Article 2, subpara. 1(a), once the State has expressed its consent to be bound. See also Id., AJIL 76 (1982) 784. Article 2, subparas. ( f ) and (g) (q.v., N. 45, 48) provide a certain distinction between concluded treaties which have entered into force and those which have not.

40McDade, ICLQ 35 (1986) 508.

41Detter, Essays 13.

42See Maresca of the Italian delegation in Vienna, for whom “concluded” described “the process by which an agreement was formed, was perfected and entered into force”, OR 1968 CoW 13, para. 25. Note that entry into force is beyond conclusion (Articles 18 and

24, q.v.).

43Klabbers, AVR 33 (1995) 367.

44ICJ Reports 1994 120, para. 25. See Fitzmaurice, BYBIL 73 (2002) 153; Rosenne, Leiden JIL 8 (1995) 168 f.

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14Finally, the agreement will be concluded between States. This term is discussed in Article 1 (q.v., N. 8). Article 2, subpara. 1(a) thus confirms that agreements between other subjects of international law are excluded.

d)Form of Agreement

15For the purposes of the Convention, the term “treaty” is confined to agreements in written form. This is so in the interests of clarity and simplicity.45 The restriction is not intended to deny the legal force of unwritten agreements under international law or to imply that the principles in the Convention do not apply to unwritten agreements (Article 3, q.v.).46 An agreement in written form encompasses a hand written, typed or printed document, telex, fax, or e-mail which can be printed out. The instrument does not have to be signed to be a treaty, provided the documents amount to an exchange of communications.47

16Typically, a treaty is a single instrument.48 In modern practice, however, international agreements are often concluded less formally and by means of two or more instruments which are frequently exchanged. The phrase whether embodied in a single instrument or in two or more related instruments brings all these forms within the meaning of “treaty”.49

The Aegean Sea Continental Shelf (Greece v. Turkey) Case confirms that a plurality of instruments, in that case a joint communiqué, may constitute a treaty, though the instruments must be related.50

17There is no systematic use of the wide range of titles given to international agreements for particular types of instruments (N. 2), nor does subpara. 1(a) distinguish between the various titles given to international agreements.51 In itself, the title of an international instrument has no particular legal significance (e.g., accord, act, agreement, charter, covenant, convention, declaration, exchange of notes, pact, protocol, statute). If the other conditions are met

45Fitzmaurice, ibid. 149. See also McNair, Law of Treaties 7, for whom to include an oral agreement within the scope of the word treaty would be “highly inconvenient”.

46ILC Report 1966, YBILC 1966 II 189, para. 7.

47Aust, Modern Treaty Law 19 f, 24.

48T he Convention employs the term “instrument” also in Articles 13, 16, 31, subpara. 2(b), 77 para. 2, and 79, subpara. 1(b) (q.v.).

49ILC Report 1966, YBILC 1966 II 189, paras. 7 f; ILC Report 1965, YBILC 1965 II 160 (Article 1, para. [b]); Fitzmaurice, BYBIL 73 (2002) 153 , with reference to the Eastern Greenland (Denmark/Norway) Case, PCIJ (1933) Series A/B no. 53.

50ICJ Reports 1978 39, para. 96 (“[the Court] knows of no rule of international law which might preclude a joint communiqué from constituting an international agreement to submit a dispute to arbitration or judicial settlement [cf. Arts. 2, 3 and 11 of the Vienna Convention on the Law of Treaties])”; Dicke, AJIL 69 (1975) 628; Rosenne, Leiden JIL 8 (1995) 169.

51ILC Report 1966, YBILC 1966 II 188, para. 3.

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(N. 4–19), all these instruments fall under subpara. 1(a),52 whatever their
particular designation.
e) Governed by International Law
To qualify as a treaty, the agreement must be governed by international law.		18
This requirement serves primarily to distinguish between agreements regulated
by public international law and agreements regulated by national law.53 The
element of subjection to international law is essential to an international
agreement.54 There is a certain tautology in Article 2, subpara. 1(a) between
this requirement and that of an international agreement (N. 6) which serves
to emphasise the international character of the treaty.55
Whilst not immediately apparent from the text,56 the requirement that an		19
agreement is governed by international law embraces the intention of the
parties to create international legal obligations rather than non-legally bind-
ing statements of policy (N. 7).57 However, the phrase does not restrict the
freedom of the parties to enter into a non-binding agreement or to submit
the agreement to another legal system.58
f ) Agreements Not Falling Under Subpara. 1(a)
Article 3 (q.v.) refers to international agreements not within the scope of the		20
present Convention. As such, it mentions international agreements concluded
between States and other subjects of international law or between such other

52See Myers, AJIL 51 (1957) 574; Blix/Emerson, 270–329 on the “types of treaties and instruments resembling treaties”. In the South West Africa (Preliminary Objections) Cases, ICJ Reports 1962 331, the Court expressed the view that “there are many di erent types of acts to which the character of treaty stipulations has been attached.” In the Customs Régime Between Austria and Germany Advisory Opinion, PCIJ (1931), Series A/B no 41, 47, the Court stated that “from the standpoint of the obligatory character of international engagements, it is well known that such engagements may be taken in the form of treaties, conventions, declarations, agreements, protocols or exchange of notes”.

53“[I]nternational law” means public international law, Bartos, YBILC 1962 I 172, para. 62; see also the ILC Report 1966, YBILC 1966 II 189, para. 6.

54Waldock Report I, YBILC 1962 II 32, para. 2.

55Statement by Waldock in the ILC, YBILC 1962 I 170, para. 32.

56See Amado, YBILC 1962 I 170 f, para. 43 f; Münch, ZaöRV 29 (1969) 1 ; Widdows, BYBIL 50 (1979) 136 at n. 5.

57Waldock Report IV, YBILC 1965 II 12, para. 6; ILC Report 1966, YBILC 1966 II 189, para. 6; statement in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1969 Plenary 346, para. 21 (“covered the element of the intention to create obligations and rights in international law”); Münch, ibid. 2 (“the legal element necessary to any treaty is now alluded to by the words ‘governed by international law’ ”); Fitzmaurice, BYBIL 73 (2002) 160 f; Dalton, AJIL 88 (1994) 515 f, according to whom the requirement “governed by international law” excludes non-binding documents from the definition of “treaty”.

58Widdows, BYBIL 59 (1979) 136.

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subjects of international law, and international agreements not in written form. The following examples may be mentioned (see also the list of “other subjects” in international law in Article 3, N. 3):59

Agreements between States and international organisations or between international organisations themselves; agreements between member states of a federation;60 oral agreements; agreements between States and non-subjects of international law such as concession contracts61 or codes of conduct between States and multinational enterprises;62 agreements which are not governed by international law such as private law contracts,63 intergovernmental loans of money or leases of land or buildings and inter-State interdepartmental agreements;64 and declarations of policy such as the Helsinki Final Act65 which may be binding politically but do not create legal obligations.

Unilateral acts as well as declarations and decisions of international organisations are not treaties unless the context shows the essential element of consensus, e.g., unilateral declarations amounting to an exchange of notes (N. 16).66

3. Context

a) Relationship to Other Provisions

21Article 2, subpara. 1(a) lays down the sphere of application of the whole Convention (N. 4).

Only the first paragraph of the Preamble (q.v., N. 8), recalling the “role of treaties in the history of international relations”, appears to employ the term “treaty” in a broader sense which predates the use of the term in Article 2, subpara. 1(a). Article 1 (q.v.) echoes the limitation in Article 2, subpara. 1(a) of the application of the Convention to treaties between States only. Similarly, the use of the term “treaty” in Article 2, subpara. 1(a) is closely related to Article 6 (q.v.) and the capacity to conclude treaties.67 Article 3, para.

(a) (q.v., N. 4–5) stipulates that Articles 1 and 2, subpara. 1(a) do not derogate from the legal force of international agreements that are not covered by the use of the term “treaty” in Article 2, subpara. 1(a). As provided for by Article 5 (q.v.), treaties adopted

59See also Rotter, Abgrenzung 413 .

60Verdross/Simma N. 541.

61See the Anglo-Iranian Oil Company (UK/Iran) (Preliminary Objection) Case ICJ Reports 1952 111 f; Fitzmaurice, BYBIL 73 (2002) 158 .

62See, e.g., A. Wiebalck, The EEC Code of Conduct for Companies with Interests in South Africa (1992).

63Verdross/Simma N. 540.

64McNair, Law of Treaties 5, 20 f.

65Final Act of the Conference on Security and Co-operation in Europe, signed on 1 August 1975, reproduced in ILM 14 (1975) 1292.

66See the Nuclear Tests (Australia/France) Cases, ICJ Reports 1974 267, para. 43 (“[i]t is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the e ect of creating legal obligations”); Myers, AJIL 51 (1957) 587, 598 f; Zemanek, Unilateral Legal Acts 209 . Unilateral acts can be binding according to other rules of international law, Bernhardt, EPIL 4 (2000) 927.

67Waldock in the ILC, YBILC 1965 I 8, para. 61.

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within an international organisation are covered by Article 2, subpara. 1(a), albeit without prejudice to any relevant rules of the organisation.

b) Matters Not Dealt With

Article 2, subpara. 1(a) merely describes the term “treaty” within the frame- 22 work of the Convention, but does not define it for purposes of international

law or attempt to list the necessary conditions for the validity of treaties (N. 4–5).68

c) Customary Basis of Subpara. 1(a)

While Article 2, subpara. 1(a) circumscribes the term “treaty” solely for the 23 purposes of the Convention (N. 4), it has obtained a broader relevance in view of the general importance of the Convention for the international community and a fortiori as the term drew upon both customary and emerging state practice.69 Today, the term “treaty” in Article 2, subpara. 1(a) can be

said to represent international customary law70 even though, as Klabbers has pointed out, in the Qatar/Bahrain Case (cited in N. 13)

“the definition of the Vienna Convention was treated as coming close to a definition with the force of customary law, which is somewhat surprising given the fact that it is, after all, but a definition, and, moreover, a definition for the purposes of the Vienna Convention only”.71

4. Appreciation of Subpara. 1(a)

In an area of international law notoriously complex,72 the meaning ascribed to 24 the term “treaty” in Article 2, subpara. 1(a) is well explained and clear (maybe even deceptively so). In practice, driven by the need for States to co-operate while simultaneously accommodating constitutional restraints,73 creative treaty-making will continue to stretch the bounds of what is understood by

68See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 34, para. 26.

69See generally Waldock Report I, YBILC 1962 II 31 ; G.E. do Nascimento e Silva, The 1986 Vienna Convention and the Treaty-Making Power of International Organizations, GYBIL 29 (1986) 68, 74 f; Igweike, IJIL 28 (1988) 249; Sinclair, Vienna Convention 5 .

70Aust, Modern Treaty Law 16.

71AVR 33 (1995) 366. Fitzmaurice, BYBIL 73 (2002) 142, also sets out to test “whether the formal definition of a treaty in the [Convention] is adequate”.

72See Fitzmaurice, ibid. 141 (“the concept of the treaty ... is one of the most intractable problems in the law of treaties”).

73Hamzeh, BYBIL 43 (1968–9) 189 (“[the provisions of the Convention] give ample scope for States to contract international legal obligations, as an act of sovereignty, in the way and manner they deem most fit and suitable under the circumstances”).

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the term “treaty”.74 The problem lies less in the use of the term itself than in whether a specific instrument falls within the scope of Article 2, subpara. 1(a) and, therefore, whether the Convention is applicable to that instrument.75 This applies in particular to the element of intent (N. 7).

C. “RATIFICATION”, “ACCEPTANCE”, “APPROVAL” AND “ACCESSION”

(SUBPARA. 1[B])

1. History

25Waldock Report I introduced separate definitions for “ratification”, “acceptance” and “accession” (though not at the outset for “approval”). The definitions included matters which were later dealt with in the articles on “ratification”, etc.76 This prompted the Drafting Committee in 1962 to simplify considerably the provisions—and to introduce the definition as it still appears in subpara. 1(b) today.77 Interestingly, the ILC Draft 1962 at first also included the term “signature” (N. 26),78 though this was dropped in 1965.79 The ILC Draft 1966 remained unchanged in Vienna.80

74See Fitzmaurice, BYBIL 73 (2002) 164 (“the definition of a treaty, as enshrined in the [Convention] does not reflect all the varied forms under which a treaty may appear”).

75H.W.A. Thirlway, The Law and Procedure of the International Court of Justice, BYBIL 62 (1991) 4 f.

76Article 1, paras. (i)–(k), YBILC 1962 II 31. For instance, “accession” was defined, ibid. as “the international act whereby a State which is not a signatory to a treaty, under a power conferred upon it by the terms of the treaty or of another instrument, expresses its will to ‘accede’ or ‘adhere’ to the treaty and thereby definitively gives its consent to be bound by the treaty”, ibid.

77Article 1, subpara. 1(e), ibid. 214 f, paras. 27–28 and 33 (though the order of the terms di ered: “ratification”, “accession”, “acceptance” and “approval”).

78Article 1, subpara. 1(d), ibid. 161 (a signature meaning “an act whereby a State authenticates the text of a treaty without establishing its consent to be bound”).

79See Waldock in the ILC, YBILC 1965 I 308, paras. 17–18 (Article 1, subpara. 1[d]). Article 1, subpara. 1(d) of the ILC Draft 1965 is at YBILC 1965 II 159 f. See the observations to the ILC by the Governments of Austria, Luxembourg and Panama, Waldock Report IV, YBILC 1965 II 14 f.

80T he ILC Draft 1966 is reproduced at YBILC 1966 II 189. At the Conference, the US unsuccessfully proposed to substitute “the international act” with “an international act” (italics added) and to delete the words “acceptance” and “approval”; OR Documents 112, subpara. 1(iii). See also the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 34, para. 27.

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The term “signature” was not included in view of its double function. Thus, it could refer to the e ect of merely authenticating the text of the treaty, on the one hand, or of definitively committing the State, on the other (see Article 12, N. 6).81

2. Interpretation of Subpara. 1(b)
Subpara. 1(b) states that “ratification”, “acceptance”, “approval” and	26
“accession” means in each case the international act so named whereby
a State establishes on the international plane its consent to be bound by
a treaty. In fact, this is not so much a definition as a description of certain
legal e ects.82 The various means are all mentioned on a par. The main pur-
pose of this provision is to emphasise that the acts mentioned are e ective on
the international plane only—the word “international” is indeed employed
twice—and do not concern any corresponding internal (and in particular
constitutional) procedures.83 Subpara. 1(b) thus complements the proviso
in para. 2 (N. 56).
3. Relationship to Other Provisions
The meaning and functions of “ratification”, “acceptance” “approval” and	27
“accession” are further explained in Articles 14 and 15 (q.v.).

81Statement by Waldock in the ILC, YBILC 1962 I 215, para. 45. He continued, ibid.: “[s]ub-paragraph [b] [is] meant to refer to the communication of the instrument of ratification by means of its deposit or its exchange for the corresponding instrument; it [is] that deposit or exchange which constituted the international act of ratification”.

82Ago, YBILC 1965 I 14, para. 49; Aust, Modern Treaty Law 108.

83See the statements in the ILC by Waldock, YBILC 1962 I 210, para. 33; and Gros, ibid. 215, para. 44. See the ILC Draft 1966, YBILC 1966 II 189 (“[t]he constitutions of many States contain specific requirements of internal law regarding the submission of treaties to the ‘ratification’ or the ‘approval’ of the particular organ . . . of the State. These procedures of ‘ratification’ and ‘approval’ have their e ects in internal law as requirements to be fulfilled before the competent organs of the State may proceed to the international act which will establish the State’s consent to be bound. The international act establishing that consent . . . is the exchange, deposit or notification internationally of the instrument specified in the treaty as the means by which States may become parties to it. . . . Since it is clear that there is some tendency for the international and internal procedures to be confused and since it is only the international procedures which are relevant in the international law of treaties, the Commission thought it desirable in the definition to lay heavy emphasis on the fact that it is purely the international act to which the terms ratification, acceptance, approval and accession relate in the present articles”). Also Aust, ibid. 103 (“[t]he most common misconception about ratification is that it is a constitutional process. It is not”).

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D. “FULL POWERS” (SUBPARA. 1[C])

1. History

28Waldock Report I of 1962 introduced a definition on “full powers” containing the core of today’s subpara. 1(c).84 The draft was modified several times in 1962 and 1965.85 Despite a proposal for amendment, the final ILC Draft 1966 remained virtually unchanged in Vienna.86

2.Interpretation of Subpara. 1(c)

29Subpara. 1(c) deals with “full powers”. This term means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty. The various functions are mentioned alternatively (“or”), thus indicating that full powers may include the whole process of concluding a treaty, or only particular stages, such as negotiation or signature.87 The persons concerned will be designated with these functions, though Article 7, para. 2 (q.v., N. 12–19) mentions in addition various persons who are automatically regarded as representing their State in respect of particular functions. By employing the term “document”, rather than, for instance, “instrument”, the definition covers also simplified forms of full powers.88

84Article 1, para. (e), YBILC 1962 II 31, stated “ ‘[f]ull powers’ means a formal instrument

issued by the competent authority of a State authorizing a given person to represent the State either for the purpose of negotiating or signing a treaty or of executing an instrument relating to a treaty” (original italics).

85Modified in 1962 at YBILC 1962 I 214, para. 27, and 239, para. 1. Article 1, subpara. 1(e) of the ILC Draft 1962 is at YBILC 1962 II 161. Modified in 1965 at YBILC 1965 I 10, para. 1, and 308, para. 17. The ILC Draft 1965 is reproduced at YBILC 1965 II 160.

86T he ILC Draft 1966 is at YBILC 1966 II 189, para. 10. At the Conference the word “person” was changed to “person or persons”. In Vienna, the Austrian and Spanish delegations unsuccessfully proposed to replace the words “a document” by the words “an instrument”, OR Documents 112, subpara. 1(v). The proposal found support from the delegations of Syria, OR 1968 CoW 24 f, para. 3; Lebanon, ibid. 27, para. 43; though not from the delegations of New Zealand, ibid. 28, para. 64 (which delegation assumed that “the [ILC] had used the word ‘document’ deliberately . . . to cover the widely-used practice of having full powers conveyed by telegraph”), and Israel, ibid. 32, para. 13, nor indeed from the Expert Consultant, Sir Humphrey Waldock, ibid. 34, para. 28.

87See Waldock in the ILC, YBILC 1962 I 216, para. 60; Aust, Modern Treaty Law 76 f.

88See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1969 CoW 34, para. 28 (“[s]ince full powers could take the form of a telegram or

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The functions mentioned in subpara. 1(c) coincide to some extent with those		30
mentioned in Article 7, subpara. 1(a) (q.v., N. 8–9), i.e., relating as a rule
to the conclusion of a treaty as in Articles 12. subpara. 1(c) (q.v., N. 11) and
14, subpara. 1(d) (q.v., N. 11–13).89 However, subpara. 1(c) goes further
in various respects. On the one hand, it mentions the negotiation of the
text of the treaty, on the other the accomplishment of any other act with
respect to a treaty, e.g., Article 67, para. 2 (q.v., N. 5) in respect of acts of
the termination, etc. of a treaty.90
3. Relationship to Other Provisions
As pointed out above (N. 29–31), subpara. 1(c) has direct implications for		31
Articles 7, 12, 14 and 67. Furthermore, Article 77, subpara. 1(a) (q.v., N. 5)
mentions as one of the functions of depositaries “keeping custody . . . of any
full powers delivered to the depositary”.
E. “RESERVATION” (SUBPARA. 1[D])
1. History
Article 1, para (l) of Waldock Report I provided the basis for today’s sub-		32
para. 1(d).91 It included a reference to unilateral interpretative declarations
(N. 37) which in 1962 the ILC decided to drop.92 The definition itself was

accepted and included in the ILC Draft 1962 which attracted comments by two States.93 The ILC Draft 1966 underwent a textual change in Vienna in

letter, the [ILC] had considered it advisable to take into account a ‘simplified form’ of full powers. . . . [I]t could be acceptably used in a very general sense”).

89ILC Report 1966, YBILC 1966 II 189, para. 10.

90Ibid.

91YBILC 1962 II 31 f. See the definition of a reservation in Article 13 of the Harvard Draft, AJIL 29 (1935) Supplement 843 (“a formal declaration by which a State, when signing, ratifying or acceding to a treaty, specifies as a condition of its willingness to become a party to the treaty certain terms which will limit the e ect of the treaty insofar as it may apply in the relations of that State with the other State or States which may be parties to the treaty”).

92Ibid. 34, para. 14; YBILC 1962 I 214, para. 27. In the debate, members who in respect of Article 19–23 did not favour the principle of unanimity (see Article 19, N. 4), expressed their views accordingly when discussing the definition of a reservation; see, inter alia, Yasseen, ibid. 47, paras. 20 f.

93Raising mainly textual issues; see the observations by Israel and Japan, Waldock Report IV, YBILC 1965 II 15. See Article 1, subpara. 1(f) of the ILC Draft 1962, YBILC 1962 II 161; also YBILC 1962 I 238, paras. 70–71.

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that the term “vary” was changed to “modify”.94 Other proposals for amendment were unsuccessful.95

2. Interpretation of Subpara. 1(d)

33According to subpara. 1(d), a “reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal e ect of certain provisions of the treaty in their application to that State. The definition thus lists three main elements of a reservation: (i) it must be a unilateral statement (N. 34), (ii) its name plays no role (N. 35); and (iii) it purports to exclude or to modify the legal e ect of certain provisions of the treaty (N. 36).96 However, the main purpose of the definition in subpara 1(d) is to distinguish reservations from unilateral interpretative statements (N. 37).97

34A reservation constitutes a unilateral statement. As such, it is not part of the treaty, as for instance a treaty clause, or an annex to the treaty would be. Rather the statement is made by a State outside the treaty.98 Whether the reservation eventually comes about, will depend on the acceptance by other States (Article 21, q.v.). The statement at issue will be made by the State when signing, ratifying, accepting, approving or acceding to a treaty. These are the means whereby a State may express consent to be bound by a treaty as in Articles 11–15 (q.v.); they are also mentioned in the opening sentence of

Article 19 (q.v., N. 9).

35Subpara. 1(d) o ers a definition of substance rather than of form: the statement can amount to a reservation however phrased or named. If the condi-

94Article 1, subpara. (d) of the ILC Draft 1966 is at YBILC 1966 II 187.

95T he Hungarian delegation aimed to extend the definition to include interpretative declarations, OR 1968 CoW 23, paras. 24 f; see the reply by the Australian delegation, ibid. 29, para. 81 (“the Commission’s view had been sound and [interpretative statements] should be treated as reservations only if they excluded, limited or otherwise varied the legal e ects of certain provisions in a treaty”); also Blix of the Swedish delegation, ibid. 30, para. 102 (“an interpretative statement which did not purport to vary obligations under a treaty was not a reservation”). The Argentinean delegation unsuccessfully suggested limiting the definition to reservations to multilateral treaties, ibid. 29, para. 69 (see Article 19, N. 6).

96Hilpold, AVR 43 (1996) 380 ; also Tomuschat, ZaöRV 27 (1967) 464.

97ILC Report 1966, YBILC 1966 II 189 f, para. 11.

98See Sinclair , Vienna Convention 51 (“the Convention definition would exclude special stipulations contained in a treaty and agreed upon by the negotiating States which qualify, limit or vary the legal e ect of other provisions of the treaty either as between all the parties or as between a particular party and all or some of the remaining parties”).

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tions are met, even a “declaration” may qualify as a reservation;99 conversely, a statement entitled “reservation” may fail to fulfil the conditions.

A reservation must purport to exclude or to modify the legal e ect of 36 certain provisions of the treaty in their application to that State.100 This exclusion or modification depends on acceptance by the other treaty parties

and thus confirms the consensual nature of reservations.101 An enlargement of the legal e ects of treaty provisions is not covered by this definition; in fact, a State would thereby be unilaterally extending its obligations without receiving anything in exchange.102

Subpara. 1(d) thus clarifies the interpretation of Article 21, para. 1(a) which in its text only refers to the modification of the “the provisions of the treaty” (and not of their e ects, q.v., N. 4).103

The main purpose of subpara. 1(d) is to distinguish reservations from unilat- 37 eral interpretative declarations. The latter occur frequently in practice, and

the distinction is not always simple. The distinguishing element is not the statement’s name (N. 35), but whether the declaration does, or does not, modify or exclude the application of the terms of the treaty.104 The distinction is further complicated by the fact that other States may accept even tacitly an interpretative declaration qua reservation (see Article 20, para. 5,

99Edwards, Michigan JIL 10 (1989) 367; Hilpold, AVR 43 (1996) 381.

100See Article 18, para. 1 of Waldock Report I, YBILC 1962 II 61 (“[a] reservation, since it purports to modify the terms of the treaty as adopted . . .”).

101See Villiger, Customary International Law 260 f.

102Sinclair, Vienna Convention 54.

103See the Continental Shelf (UK/France) Arbitration (First Award), ILR 54 (1979) 52 50, para. 55 (“[t]his definition does not limit reservations to statements purporting to exclude or modify the actual terms of the treaty; it also covers statements purporting to exclude or modify the legal e ect of certain provisions in their application to the reserving State”).

104ILC Report 1966, YBILC 1966 II 189 f, para. 11. See Article 1, para. l of Waldock Report I, YBILC 1962 II 31 f (“[a]n explanatory statement or statement of intention or of understanding as to the meaning of a treaty, which does not amount to a variation in the legal e ect of the treaty, does not constitute a reservation”); Waldock Report IV, YBILC 1965 II 49, para. 2 (“statements of interpretation . . . are not reservations and appear to concern the interpretation rather than the conclusion of treaties”); the statement by Waldock as Expert Consultant in Vienna, OR 1968 CoW 34, para. 29 (“[s]ome such declarations were of a general nature and represented an objective interpretation of what was understood to be the meaning of a treaty. The purpose of others was to clarify the meaning of doubtful clauses or of clauses which were controversial for particular States. Others, again, dealt with the application of a treaty in certain circumstances peculiar to a State”); the ILC Guideline 1.2 on the Definition of Interpretative Declarations, YBILC 2007 II/2 48 (“ ‘[i]nterpretative declaration’ means a unilateral statement, however phrased or named, made by a State . . . whereby that State . . . purports to specify or clarify the meaning or scope attributed by the declarant to a treaty or to certain of its provisions”). See also Tomuschat, ZaöRV 27 (1967) 465 f; Bowett, BYBIL 48 (1976–77) 68; McRae, BYBIL 49 (1978) 155 ; Sinclair, Vienna Convention 53.

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N. 17). Whether the declaration amounts to one or the other, in particular whether there is a consensual element (N. 36), will depend on the rules of interpretation in Article 31.105 Simple interpretative declarations may play a role under Article 32 (q.v., N. 5).

3. Relationship to Other Provisions

38Article 2, subpara. 1(d) is of relevance to Articles 19–23 on reservations (q.v.).

F. “NEGOTIATING STATE” (SUBPARA. 1[E])

1. History

39It is di cult to track down the travaux préparatoires of the term “negotiating State”. There is no mention thereof in the records of the ILC debates from 1962–1964.106 It appears that the definition was introduced during the ILC’s debate in 1966.107 The definition is mentioned in the ILC Draft 1966 and remained unchanged at the Vienna Conference, despite two proposals to amend the text.108

2.Interpretation of Subpara. 1(e)

40According to subpara. 1(e), a “negotiating State” means a State which took part in the drawing up and adoption of the text of the treaty.109 This has to be read in the light of Article 9, para. 1 (q.v., N. 3–9) which envisages the

105Aust, Modern Treaty Law 127.

106See, e.g., Waldock Report I, YBILC 1962 II 31 f; Waldock in the ILC, YBILC 1965 I

308, para. 17.

107YBILC 1966 I/2 324, para. 69, though it is not certain when this occurred.

108YBILC 1966 II 187 f. At the Conference the French delegation proposed to delete the words “drawing up and”; the Indian delegation proposed deleting subpara. 1(e) on the ground that “between the time when a State was regarded as a ‘negotiating State’ and the time when it became a ‘contracting State’ there was an interval which had not been allowed for, either in the definitions, or in the body of the . . . Convention”; neither proposal was taken up by the Drafting Committee. However, the Indian proposal led to a change in Article 24 (q.v., N. 2): in its subpara. 1(a) “contracting States” was changed to “negotiating States”. See also the observation by the delegations of Switzerland, ibid. 28, para. 57, and Hungary, ibid. 29, para. 82 (“[t]he distinctions made were useful”).

109See the Observer for the IBRD in Vienna, OR 1968 CoW, 33, para. 24 (“[i]n using the term ‘negotiating States’ it was assumed that the text of a treaty would invariably be formulated by States, whether in direct negotiations, or at an international conference, or in a plenary organ of an international organization”), with reference to the practice within the IBRD.

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adoption of the text of a treaty by all the States participating in its drawing
up. In this definition the word “and” must be emphasised: “there [are] no
‘negotiating States’ until the text [has] been adopted”.110 Of course, the term
“negotiating States” within this meaning includes also States which have voted
against adoption of a treaty at a conference.
Subpara. 1(e) thus constitutes the beginning of the three successive stages		41
mentioned in para. 1 of Article 2, i.e., (i) the negotiations and adoption of
the treaty in subpara. 1(e); (ii) the consent to be bound by the treaty within
the meaning of subpara. 1(f) (N. 45); and (iii) its entry into force as in sub-
para. 1(g) (N. 48).111
The ILC Report 1966 explained that when a provision spoke of “negotiating States” they
“require to be distinguished from both ‘contracting States’ and ‘parties’ . . . notably when
an article speaks of the intention underlying the treaty”.112 This holds true for Articles
12, 14, 15, 20, 24, 25 and 78, but most likely not for Articles 47, 49 and 50 (q.v.).113
The Convention envisages a further stage of “States entitled to become parties		42
to the treaty”. This category goes beyond the notion of “negotiating States”.
It covers States aiming to consent to be bound by the treaty.114
3. Relationship to Other Provisions
The relationship to other provisions in the Convention has been explained		43
above (N. 40–41).
G. “CONTRACTING STATE” (SUBPARA. 1[F ])
1. History
The Waldock Report I of 1962 referred to a “presumptive party” as meaning		44
a State which “[h]ad qualified itself to be a ‘party’ to a treaty which [h]ad not

yet entered into force”.115 However, the ILC almost immediately dropped this definition together with the term “party” (N. 47).116 In 1965 the ILC again

110Waldock in the ILC, YBILC 1966 I/2 294, para. 86.

111In this respect, the Expert Consultant in Vienna, Sir Humphrey Waldock, pointed out that “[the ILC] had . . . introduced sub-paragraphs (e), (f) and (g) merely in order to provide convenient labels for referring to the various relationships which a State might have to the text of a treaty”, OR 1968 CoW 34 f, para. 32.

112YBILC 1966 II 190, para. 12.

113But see Gautier, Article 2, N. 45.

114YBILC 1966 II 190, para. 12. The provisions concerned are Articles 23, 40, 77 and 79 (q.v.).

115Article 1, para. 1 (c) in YBILC 1962 II 31.

116YBILC 1962 I 214, para. 28.

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decided to include a definition while leaving open the precise meaning until it was considered whether “party” implied a right of States to be consulted or notified in respect of the treaty (which is not the case today).117 In 1966, and without further discussion, the definition proposed by the Drafting Committee was adopted by the ILC.118 It remained unchanged in Vienna.

A proposal at the Conference by the Indian delegation to delete subpara. (f) on the grounds, inter alia, that subparas. (f) and (g) overlapped, was referred to the Drafting Committee which did not, however, propose any changes.119

2. Interpretation of Subpara. 1(f )

45Subpara. 1(f) defines a “contracting State” as meaning a State which has consented to be bound by the treaty, whether or not the treaty has entered into force.Two elements transpire in this definition: (i) the State has consented to be bound by the treaty. Here, the definition refers back to the means by which a State establishes its consent to be bound in subpara. 1(b) (N. 26) and in Articles 11–16 (q.v.); and (ii) it is irrelevant whether or not the treaty has entered into force according to Article 24.120 This is the moment from when on States are obliged to apply the treaty (q.v., N. 4). If the treaty has entered into force, the definition in subpara. 1(f) coincides with that of the “party” in subpara. 1(g ) (N. 48) which assumes a treaty which is in force.

The emphasis in subpara. 1(f) is, therefore, on the State’s consent to be bound by the treaty, whereas for subpara. 1(g) it is the fact that the treaty has entered into force and is applicable between the parties (N. 48).

3. Relationship to Other Provisions

46The term “contracting State” is mentioned in various provisions of the Convention.121

117Article 1, para. (f)(ter) in YBILC 1965 II 160.

118Adopted at YBILC 1966 I 324, para. 69. Article 2, subpara. 1(f) of the ILC Draft 1966 is at YBILC 1966 II 187 f.

119OR Documents 112, para. 35, subpara. 1(viii)(b); statement by the Indian delegation, OR 1968 CoW 22, paras. 9–10.

120ILC Report 1966, YBILC 1966 II 190, para. 12.

121In ten provisions, i.e., Articles 16, 17, 20, 22, 23, 39, 54, 57, 77, and 79 (q.v.); Gautier, Article , N. 46 at n. 119.

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H. “PARTY” (SUBPARA. 1[G])
1. History
Waldock Report I of 1962 introduced a first definition of the term “party”,		47
containing elements of Articles 1 and 6 (q.v.).122 However, shortly thereafter
Waldock proposed to delete the definition.123 It was re-introduced in the ILC
Draft 1965.124 The ILC Draft 1966 remained unchanged in Vienna.125
2. Interpretation of Subpara. 1(g)
According to subpara. 1(g), a “party” means a State which has consented to		48
be bound by the treaty and for which the treaty is in force. As the Indian
delegation in Vienna correctly pointed out, there is an overlapping here with
the definition of a “contracting State” in subpara. 1(f) (N. 44). For a party,
the treaty is in force, which is not the case for a contracting State.

The ILC Report 1966 emphasised that the term “party” is employed in the Convention also in respect of treaties which cease to be in force, in particular in Section 5 of Part V of the Convention.126

3. Relationship to Other Provisions

The term “party” is referred to in many articles of the Convention (q.v.).127 49 In Article 66, paras. (a) and (b) (q.v., N. 3) the term has the special meaning

of “parties to a dispute”.128

122YBILC 1962 II 31. Article 1, para. (c) provided as follows: “ ‘[p]arty’ means a State or other subject of international law, possessing international personality and having capacity to enter into treaties under the rules set out in Article 3 below, which has executed acts by which it has definitively given its consent to be bound by a treaty in force”.

123YBILC 1962 I 214, para. 28.

124Article 1, subpara. f(bis), YBILC 1965 II 160: “ ‘[p]arty’ means a State which has consented to be bound by a treaty and for which the treaty has come into force”. The definite text was adopted in 1966, YBILC 1966 I 324, para. 69.

125T he ILC Draft 1966 is at YBILC 1966 II 187.

126Ibid. 190, para. 12. Section 5 contains Article 69 (Consequences of the Invalidity of a Treaty); Article 70 (Consequences of the Termination of a Treaty); Article 71 (Consequences of the Invalidity of a Treaty Which Conflicts with a Peremptory Norm of General International Law); and Article 72 (Consequences of the Suspension of the Operation of a Treaty).

127In altogether 35 provisions, i.e., Articles 21, 23, 25–31, 33, 35–37, 39–41, 43, 44, 54–63, 65–67, and 69–72 (q.v.), Gautier, Article 2, N. 48, n. 121.

128Gautier, ibid.

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I. “THIRD STATE” (SUBPARA. 1[H])

1. History

50Waldock’s first report in 1962 did not define “third States”.129 A definition was introduced in the ILC in 1966 in the version as it stands today, and immediately approved.130 No amendments were submitted in Vienna at the Conference and there was no debate on the matter.

2. Interpretation of Subpara. 1(h)

51Subpara. 1(h) defines a “third State” as a State not a party to the treaty, whether bior multilateral.131 As such, the definition must be read together with, or actually in contradistinction to, subpara. 1(g) which defines a “party” as a State which has consented to be bound by the treaty and for which the treaty is in force (N. 48).132 Thus, it is irrelevant here whether or not a State participated in the treaty negotiations or was entitled to become a party.133 Hence, third States include, inter alia, “negotiating States” and “contracting States” as in subparas. 1(e) and ( f ) (N. 39–46).134 Individuals and entities other than States (e.g., international organisations) are not addressed by subpara. 1(h).135

Despite this apparent dichotomy between “parties” and “third States” in Article 2, Articles 34–37 indeed envisage contractual relationships between the two categories of States in the form of so-called collateral agreements.136

129YBILC 1962 II 31 f.

130Proposed by Briggs, YBILC 1966 I/2 170, para. 14; approved ibid. para. 19; adopted ibid. 324, para. 69. The ILC Draft 1966 is at YBILC 1966 II 188 .

131T he term “third State” presupposes two or more treaty parties; but see Neuhold, Berichte DGVR 28 (1988) 54, who links the term “third States” to bilateral treaties (“der Ausdruck ‘Drittstaat’ [perpetuiert] die traditionalle Ausrichtung auf bilaterale Verträge in der WVK”). On the whole, the term “non-party” might have been preferable; see ibid.

132See de Luna, YBILC 1966 I/2 170, para. 167 (“the definition of ‘third State’ entailed a reference to another notion, that of ‘party’ ”).

133Fitzmaurice Report V, YBILC 1960 II 75, paras. 1 ; Ballreich, EPIL 2 (2000) 945; also Vierdag, AJIL 76 (1982) 792.

134Gautier, Article 2, N. 49, refers here to “categories intermediaries”. See also Aust, Modern Treaty Law 256 f.

135See Waldock in the ILC, YBILC 1966 I/2 59, para. 48; Briggs, ibid. 257, para. 16; Neuhold, Berichte DGVR 28 (1988) 65 , 74 .

136See Article 34, N. 6; Article 35, N. 2; Article 36, N. 5; and Article 37, N. 2.

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3. Relationship to Other Provisions
The term “third State” is defined here mainly for convenience, i.e., to clarify	52
the use of the terms in Articles 34–38 (q.v.).137
J. “INTERNATIONAL ORGANISATION” (SUBPARA. 1[I])
1. History
The ILC introduced Article 2, subpara. 1(i) in 1965 following a discussion	53
on the position of “other subjects” of international law (Article 3, N. 1).138 In
Vienna, the one amendment proposed by China was referred to the Drafting
Committee.139 Otherwise, the definition attracted no attention.140
2. Interpretation of Subpara. 1(i)
According to subpara. 1(i), “international organisation” means an inter-	54
governmental organisation, i.e., an association between States. The main

purpose of the definition is to exclude non-governmental organisations from the application of the Convention, since the Convention applies solely to treaties between States (Article 1, q.v.).141

Bindschedler has defined an international organisation as “an association of States established by and based upon a treaty, which pursues common aims and which has its own special organs to fulfil particular functions within the organization”.142 Aust concisely circumscribes an international organisation as “an international legal entity

137ILC Report 1966, YBILC 1966 II 190, para. 13 (“[t]his term is in common use to denote a State which is not a party to the treaty and the Commission, for drafting reasons, considered it convenient to use the term in that sense in Section 4 of Part III”); Briggs in the ILC, YBILC 1966 I/2 170, para. 15 (“the examination of other provisions dealing with the rights and obligations of non-parties had revealed that [a definition] was needed”); Gautier, Article 2, N. 49.

138YBILC 1965 I 7 , 307 f. See Article 2, subpara. 1(a) of the ILC Report 1966, YBILC 1966 II 187 .

139To amend subpara. 1(i) to read: “[i]nternational organisations include intergovernmental organisations but not non-governmental organisations”; OR Documents 113, subpara.(x).

140Article 2 was adopted as a whole by 94 votes to none with 3 abstentions, OR Plenary 1969, 157, para. 48. For the debate on Article 2, see OR 1968 CoW 21 ; OR 1969 CoW 3 f.

141ILC Report 1966, YBILC 1966 II 190, para. 14; Waldock in the ILC, YBILC 1965 I 308, para. 22.

142R. Bindschedler, International Organizations. General Aspects, EPIL 2 (1995) 1289.

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created by a multilateral treaty, with international personality, and principally with states as members”.143

3. Relationship to Other Provisions

55Various provisions in the Convention refer to “international organisations”.144

K. PROVISO IN PARA. 2

56Para. 2 serves as a proviso or disclaimer.145 It provides that the provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State. Para. 2 deals with the e ects (which it intends to limit) of the Convention on internal law.146 Di culties may arise, inter alia, if in certain States the Convention acquires the force of internal law under the provisions of their constitutions.147 Here, para. 2 safeguards the position of States; it ensures that the definitions given in para. 1 do not a ect the existing domestic rules or usages governing international treaties and their procedures under national law.148 On the whole, it can be said that paras. 1 and 2 of Article 2 deal with two sides of the same coin and complement each other.149

It transpires from the travaux préparatoires that the main purpose of para. 2 is to preserve the position of States in respect of their internal law and usages especially in connexion with the ratification of treaties.150 That the terms employed in para. 1 operate on the international level, is emphasised in subpara. 1(a) on the use of the term “treaty” (N. 6–9, 18–19).

143Modern Treaty Law 392.

144Altogether five provisions, i.e., Article 5, Article 7, subpara. 2(c), Article 20, para. 3, Article 76, para. 1, and Article 77, para. 2 (q.v.).

145See the observation by the US Government to the ILC, Waldock Report IV, YBILC 1965 II 15.

146Statement by Reuter in the ILC, YBILC 1965 I 19, para. 34.

147Waldock Report IV, YBILC 1965 II 16, para. 2.

148ILC Report 1962, YBILC 1966 II 190, para. 15.

149But see the criticism in the ILC by Rosenne, YBILC 1965 I 13, para. 40 (“the provisions of [para. 2] had no place in a definitions article, since they dealt with a completely di erent subject”).

150T hus, Article 1, para. 2 of the ILC Draft 1962, YBILC 1962 II 161, was limited to “the characterisation and classification of international agreements under the internal law of any State”, and its Commentary, ibid. 163, para. 15, provided the concomitant explanation. The final ILC Draft 1962 extended the scope of para. 2 (as in today’s Article 2, para. 2) to all the terms employed in para. 1, YBILC 1966 II 188, though its Commentary reiterated virtually verbatim, ibid. 190, para. 15, the more limited text of 1962.

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L. APPRECIATION OF ARTICLE 2
Para. 1 provides for a rather mixed group of terms. Clearly, the notion of		57
“treaty” (N. 2–24) occupies pride of place, not least because, together with
Articles 1 and 6 (q.v.), the term defines the scope of application of the entire
Convention.151 Other terms, such as “third States”, concern only a few articles
of the Convention (N. 50–52).
As with all definitions, it is di cult to cover every relevant aspect; for further		58
guidance, one has to look at the substantive articles (e.g., Articles 19–23 in
respect of reservations). The more general the definition, the less it will cover
exceptions; the more it covers exceptions, the less it reflects the general thrust.
On the whole, Article 2, together with the Preamble (q.v.), plays a central
role by providing a uniform approach to the interpretation and application
of the Convention.

The notion of a “treaty” in subpara. 1(a) appears well explained, if only for purposes of the present Convention. Conversely, the definitions of “ratification”, “acceptance”, “approval” and “accession” in subpara. 1(b) (N. 5–27) appear somewhat sparse. The definition of “reservation” in subpara. 1(d) (N. 32–38), although aimed at distinguishing the notion of reservations from unilateral declarations, in fact blurs the distinction (since unilateral declarations may be accepted tacitly qua reservations, N. 37). The terms “contracting State” and “Party” in subparas. 1(f) and (g) partly overlap (N. 44–49).

151 See Tunkin in the ILC, YBILC 1965 I 11, para. 14.

ZACHARIAS

Article 3

International agreements not within the scope of the present Convention

The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not a ect:

(a)the legal force of such agreements;

(b)the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention;

(c)the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties.

Article 3 Accords internationaux n’entrant pas dans le cadre de la présente Convention

Le fait que la présente Convention ne s’applique ni aux accords internationaux conclus entre des Etats et d’autres sujets du droit international ou entre ces autres sujets du droit international, ni aux accords internationaux qui n’ont pas été conclus par écrit, ne porte pas atteinte:

a)à la valeur juridique de tels accords;

b)à l’application à ces accords de toutes règles énoncées dans la présente Convention auxquelles ils seraient soumis en vertu du droit international indépendamment de ladite Convention;

c)à l’application de la Convention aux relations entre Etats régies par des accords internationaux auxquels sont également parties d’autres sujets du droit international.

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Artikel 3 Nicht in den Geltungsbereich dieses Übereinkommens fallende internationale Übereinkünfte

Der Umstand, dass dieses Übereinkommen weder auf die zwischen Staaten und anderen Völkerrechtssubjekten oder zwischen solchen anderen Völkerrechtssubjekten geschlossenen internationalen Übereinkünfte noch auf nicht schriftliche internationale Übereinkünfte Anwendung findet, berührt nicht

a)die rechtliche Gültigkeit solcher Übereinkünfte;

b)die Anwendung einer der in diesem Übereinkommen niedergelegten Regeln auf sie, denen sie auch unabhängig von diesem Übereinkommen auf Grund des Völkerrechts unterworfen wären;

c)die Anwendung des Übereinkommens auf die Beziehungen zwischen Staaten auf Grund internationaler Übereinkünfte, denen auch andere Völkerrechtssubjekte als Vertragsparteien angehören.

ILC Draft 1966

Article 3—International agreements not within the scope of the present articles

The fact that the present articles do not relate:

(a)to international agreements concluded between States and other subjects of international law or between such other subjects of international law; or

(b)to international agreements not in written form,

shall not a ect the legal force of such agreements or the application to them of any of the rules set forth in the present articles to which they would be subject independently of these articles.

Materials:

WALDOCK Report I: Article 2, para. 2.

Minutes: YBILC 1962 I 47 , 54 , 192 f, 240, 266.

ILC Draft 1962: Article 2, para. 2.

WALDOCK Report IV: Article 2, para. 2.

Minutes: YBILC 1965 I 10 , 244 f, 280.

ILC Draft 1965: Article 2.

Minutes: YBILC 1966 I/2 325, 339.

ILC Draft 1966: Article 3.

Minutes: OR 1968 CoW 35 , 146 f; OR 1969 Plenary 7.

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Vienna Conference Vote: 102:0:0

Selected Literature:

C.M. Brölmann, The Institutional Veil in Public International Law: International Organizations and the Law of Treaties (2005); Y. le Bouthillier/J.-F. Bonin, Article 3, in: Corten/Klein (eds.) 97 ; R. Sonnenfeld, International Organizations as Parties to Treaties, Polish YBIL 11 (1981–1982) 177 ; E.W. Vierdag, Some Problems Regarding the Scope of International Instruments on the Law of Treaties, AVR 23 (1985) 429 .

	international agreements not within the scope	101
	CONTENTS
		Paras.
A. History ................................................................................................		1
B. Interpretation of Article 3 ...............................................................		2
1.	Scope ...............................................................................................	2
2.	International Agreements Not Falling Under the Convention
	(Opening Sentence) ..........................................................................	3
3.	Consequences of Non-Applicability (Paras. [a] and [b]) ...................	4
4.	Partial Applicability of the Convention (Para. [c]) .............................	7
C. Context ...............................................................................................		9
1.	Relationship to Other Provisions ......................................................	9
2.	Matters Not Dealt With ...................................................................	10
3.	Customary Basis of Article 3 ............................................................	11
D. Appreciation ........................................................................................		12
A. HISTORY
The Waldock Report I of 1962 proposed a reservation solely in respect of			1
agreements not in written form, as in the last part of the opening sentence
of Article 3.1 The discussion in the ILC in 1962, less fruitful for once,

concentrated on the question whether such a provision would include “unilateral declarations”.2 The Waldock Report IV of 1965 suggested adding “international agreements concluded by subjects of international law other than States”.3 A broader discussion took place in 1965.4 The final ILC Draft 1966 contained today’s paras. (a) and (b) while reversing the structure of the article.5 A surprisingly large number of (unsuccessful) amendments was

1Article 2, para. 2, YBILC 1962 II 35. On the history of Article 3, see also Villiger, Customary International Law N. 416 ; Vierdag, AVR 23 (1985) 424 .

2See, e.g., the observation in the ILC by Verdross, YBILC 1962 I 48, para. 38; the discussion ibid. 48–50, and 54–57. Article 2, para. 2 of the ILC Draft 1962 is reproduced at

YBILC 1962 II 163 f. 3 YBILC 1965 II 16.

4T he minutes are reproduced at YBILC 1965 I 10 , 244 f, and 280. Article 2 of the ILC Draft 1965 was adopted by 14 votes to none, ibid. 280, para. 2. The ILC Draft 1965 is

reproduced at YBILC 1965 II 160. 5 YBILC 1966 II 190 f.

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introduced at the Conference.6 After a particularly useful discussion from which it transpired that States overwhelmingly accepted the dual contractual and customary nature of the Convention rules, Article 3 was adopted by 102 votes to none.7

Exceptionally (and not to everybody’s satisfaction), it was the Drafting Committee which introduced para. (c) without warning at the Conference. No such amendment had previously been tabled, nor had a delegation touched on the subject in the debate.8

B. INTERPRETATION OF ARTICLE 3

1. Scope

2In its opening sentence Article 3 mentions certain international agreements as not falling within the scope of the Convention (N. 3). It then gives some indications in paras. (a)-(c) as to the law governing these agreements (N. 3–8). On the whole, Article 3 confirms the validity of international agreements not covered by the Convention (N. 5).9

The title of Article 3 appears imprecise: it refers to “international agreements not within the scope of the present Convention” whereas, para. (c) concerns at least the partial applicability of the Convention to these agreements.

2. International Agreements Not Falling Under the Convention (Opening

Sentence)

3Articles 1 and 2, subpara. 1(a) state positively that the Convention applies to written international agreements between States (q.v.). Article 3 complements these provisions by listing negatively at the outset certain categories of

6T he amendments are reproduced at OR Documents 113 f, para. 43. For instance, China proposed deleting Article 3 (not pressed to a vote); the US suggested adding: “nothing in the present articles shall a ect the legal force of international agreements not in written form or the application to them of any of the rules of international law” (amendment withdrawn); Switzerland suggested deleting: “to which they would be subject independently of these articles” (referred to the Drafting Committee); Spain suggested substituting “to which they would be subject” with “to which they might be subject” (referred to the Drafting Committee); Mexico suggested substituting “independently of these articles” with “in

accordance with international law”.

7OR 1969 Plenary 4, para. 21. The materials are reproduced at OR 1968 CoW 35 , 146 f; OR 1969 Plenary 7. See Villiger, Customary International Law N. 417.

8OR 1968 CoW 146, para. 4. The Indian delegate complained, ibid. 147, para. 8 that “he could not remember the Drafting Committee having received any precise instructions concerning the insertion of sub-paragraph [c]”; see also Vierdag, AVR 23 (1985) 430

(“most unusual manner”).

9 Bindschedler of the Swiss delegation in Vienna, OR 1968 CoW 35, para. 47.

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international agreements to which the present Convention does not apply,10 namely:

–international agreements concluded between States and other subjects of international law;

–international agreements concluded between such other subjects of international law;

–international agreements not in written form.

As examples of such other subjects of international law may be mentioned, under certain circumstances: non-sovereign States and territories; member States of (Con-)Federa- tions; unions of States; international organisations (see Articles 2, subpara. 1(i) and 5); multinational enterprises; the Holy See; the International Committee of the Red Cross; the Order of Malta; individuals; “peoples” (minorities), etc.11 Agreements not in written form may include oral or tacit agreements and unilateral declarations accepted by other States.12 A list of agreements not falling under the Convention—and hence under Article 3—can be found in Article 2, supbara. 1(a) (q.v., N. 20).

International agreements between or with international organisations are the subject of the Vienna Convention on the Law of Treaties Between States and International Organisations or Between International Organisations of 1986, which in fact applies the provisions of the Convention—suitably adapted—to such agreements.13

3. Consequences of Non-Applicability (Paras. [a] and [b])

The inapplicability of the Convention to the international agreements men-	4
tioned (N. 3) shall not otherwise a ect their position under international
law, in particular as explained in paras. (a) and (b) (N. 5–6).
Here, Article 3 reiterates (obviously for stylistic reasons) what is already stated in its
opening sentence, namely that the Convention “does not apply” to these international
agreements.14
Thus, according to para. (a), the Convention shall not a ect the legal force	5
of such agreements. In particular, the Convention leaves open whether such
other agreements possess legal force under international (or national) law,

10ILC Report 1966, YBILC 1966 II 190, para. 2; ILC Report 1962, YBILC 1962 II 164, para. 2 (“in order to remove any possibility of misunderstanding”); Waldock in the ILC, YBILC 1965 I 15, para. 69 (“negative form of reservation”); the statement by the Chinese delegation in Vienna, OR 1968 CoW 35, para. 45.

11H. Mosler, Subjects of International Law, EPIL 4 (2000) 710 .

12ILC Report 1966, YBILC 1966 II 190, para. 2; Waldock Report I, YBILC 1962 II 35. See also the list in le Bouthillier/Bonin, Article 3, N. 16.

13Aust, Modern Treaty Law 8. See on the topic G. Gaja, A “New” Vienna Convention on Treaties Between States and International Organizations or Between International Organizations: A Critical Commentary, BYBIL 58 (1987) 253 .

14Statement in Vienna by the delegation of the Ivory Coast, OR 1968 CoW 41, para. 72.

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and indeed does not concern the validity, operation, interpretation or e ects of such agreements.15

6According to para. (b), the Convention shall not a ect the application to such agreements of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention. States may come to consider the Convention rules, in addition to the contractual binding nature of the agreement, also as binding qua customary international law or qua general principles of international law (Issues of Customary International Law, N. 52–63).16

Interestingly, Article 3 refers to customary rules und general principles of international law underlying the Convention binding not on States inter se, but on other subjects of international law in their relations inter se or with States. Strictly speaking, the two sets of customary rules di er in that they depend on di erent types of practice. Thus, in order to apply the customary rules and general principles envisaged in Article 5, it would have to be demonstrated that they had developed (not in the practice of States inter se, but:) in the practice between the other subjects among themselves, or with States.

4. Partial Applicability of the Convention (Para. [c])

7Para. (c) highlights one particular aspect of the law governing “mixed” international agreements which one State concludes with other States as well as with other subjects of international law. It complements para. (b) where it is stated that the Convention in principle does not apply to such agreements (N. 6).17 Here, para. (c) exceptionally envisages the application of the

Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties. In other words, the relations among the States themselves always remain governed by the Convention. States may not escape the applicability of the Convention vis-à-vis other States by including a non-Statal actor among

15Clearly it cannot be derived from the formulation in Article 3 that these other agreements have no legal force, as was feared by the Turkish delegation in Vienna, ibid. 39, para. 40.

16Yasseen, Chairman of the Drafting Committee, in Vienna, ibid. 146, para. 5 (“the rules stated in the Convention could apply, not as articles of the Convention, but on other grounds, because they had another source, for example, custom”); ibid. 38, para. 34; Villiger, Customary International Law N. 419.

17But see the statement in Vienna by the Indian delegation, OR 1968 CoW 147, para. 8 (“[i]n the absence of details, it seemed that subparagraph [c] was incompatible with subparagraph [b] and that the subject-matter of subparagraph [c] was already dealt with in subparagraph [b] . . . Moreover, when subparagraph [c] was read in conjunction with the opening sentence, a contradiction appeared, for after agreements concluded between States and other subjects of international law had been excluded from the scope of the Convention, subparagraph [c] stated that the Convention could apply to these agreements”).

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the parties.18 Of course, the States concerned are at any moment free to agree inter se to choose other legal provisions to apply to the treaty at issue.

Para. (c) touches on a delicate matter, since relations of States as between themselves qualify as res inter alios acta for the other non-Statal parties to the treaty and do not concern them. Here, the Convention allows for a further fragmentation of treaty relations (see, e.g., Article 4, N. 9; Article 19, N. 7). These problems are avoided if the Convention provisions at issue apply qua customary international law both between the States inter se and between States and other subjects of international law (but see the qualifications in N. 6 i.f.).

Thus, the following situations can summarily be identified in para. (c)::19

8

–the international agreement governs the relations between the States and the nonStatal parties qua contractual obligation;

–the Convention governs the relations under the agreement between the States parties to it (and, of course, parties to the Convention) inter se qua contractual obligation;

–customary law underlying the Convention governs the relations under the agreement between the States parties to it, which are not parties to the Convention, inter se;

–customary law underlying the Convention also governs the relations under the agreement between States and non-Statal parties;

–customary law underlying the Convention also governs the relations under the agreement between the other non-Statal parties inter se;

–customary law other than that underlying the Convention governs the relations under the agreement between all the parties insofar as “questions not regulated by the provisions of the . . . Convention” are concerned (eighth preambular para., see

Preamble N. 16).

C.CONTEXT

1. Relationship to Other Provisions
The relationship between Article 3 and Articles 1 and 2, subpara. 1(a) has	9
been explained above (N. 3). Article 3 corresponds with Article 4 (q.v.) in

18Yasseen, Chairman of the Drafting Committee in Vienna, ibid. 147, para. 10, for whom para (c) was a “complement to the general rule set forth in the introduction. It explained that even in the case of mixed international agreements, relations between States, but only relations between States, were subject to the Convention. Relations between States and international organizations or other subjects of international law, especially the complex and indivisible relations involving both States and other subjects of international law, could not be subject to the Convention”.

19Vierdag, AVR 23 (1985) 435; see also ibid. 432, that para. (c) “disrupts the unity of the system of law governing the treaties to which it applies”. See the statement in Vienna by the Indian delegation, OR 1968 CoW 147, para. 8 (“[i]n the case of a mixed agreement, it might not be easy to determine the rights and obligations between States on the one hand, and between States and organizations on the other”).

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that both provisions envisage the potential binding force of the Convention qua customary law.20

2. Matters Not Dealt With

10 Article 3 does not distinguish which Convention articles apply qua customary international law in the situations mentioned in paras. (b) (N. 6) and

(c) (N. 7–8).21

3. Customary Basis of Article 3

11Paras. (a) and (b) possess no normative quality. Rather, they constitute a “general reservation” in respect of general international law also to be found, for instance, in Articles 4 and 38 (q.v. N. 10, and N. 12, respectively). Para.

(c) di ers in that it circumscribes the applicable law solely for the purposes of the present Convention. As such, it does not contain a general and abstract rule and cannot, therefore, harden into customary international law.

D. APPRECIATION

12In the ILC (N. 1) it was suggested that Article 3 (with its paras. [a] and [b]) “should be relegated to the commentary”.22 The provision, containing some repetition (N. 4), nevertheless appears valuable in that it highlights and confirms the possibility of the dual contractual and customary nature of the Convention’s rules.23 Indeed, an analysis of the provision reveals that there is more to it than meets the eye. Furthermore, Article 3 serves as a useful reminder to States that, for them, paras. (b) and (c) in fact envisage the same rules and that the unified application of the Convention both qua contractual obligation and qua customary law to all international agreements appears the most practicable.

20Villiger, Customary International Law N. 419.

21Ibid.

22Statements in the ILC by de Luna YBILC 1965 I 11, para. 21; and in Vienna by the Ceylonese delegation, OR 1968 CoW 39, para. 41 (“total e ect of Article 3 was minimal”).

23Waldock Report IV, YBILC 1965 II 16; Villiger, Customary International Law N. 419. See also the then USSR delegation in Vienna, according to which Article 3 “played an important part in the entire system of the . . . Convention”, OR 1968 CoW 41, para. 68.

Article 4

Non-retroactivity of the Convention

Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.

Article 4 Non-rétroactivité de la présente Convention

Sans préjudice de l’application de toutes règles énoncés dans la présente Convention auxquelles les traités seraient soumis en vertu du droit international indépendamment de ladite Convention, celle-ci s’applique uniquement aux traités conclus par des Etats après son entrée en viguer à l’égard de ces Etats.

Artikel 4 Nichtrückwirkung dieses Übereinkommens

Unbeschadet der Anwendung der in diesem Übereinkommen niedergelegten Regeln, denen Verträge unabhängig von dem Übereinkommen auf Grund des Völkerrechts unterworfen wären, findet das Übereinkommen nur auf Verträge Anwendung, die von Staaten geschlossen werden, nachdem das Übereinkommen für sie in Kraft getreten ist.

Materials:

Minutes: OR 1968 CoW 310 , 323 , 343; OR 1969 Plenary 165 .

Vienna Conference Vote: 81:5:17

Selected Literature:

P. Dopagne, Article 4, in: Corten/Klein (eds.) 119 ; A. Haratsch/St. Schmahl, Die Anwendung ratione temporis der Wiener Konvention über das Recht der Verträge, ZöR 58 (2003) 105 ; P. McDade, The E ect of Article 4 of the Vienna Convention on the Law of Treaties 1969, ICLQ 35 (1986) 499 ; E. Orihuela Calatayud, Los tratados internacio-

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nales y su aplicación en el tiempo. Consideraciones sobre el efecto inicial de las disposiciones convencionales (2004); Sh. Rosenne, The Temporal Application of the Vienna Convention on the Law of Treaties, Cornell ILJ 4 (1970) 1 ; E.W. Vierdag, The Law Governing Treaty Relations Between Parties to the Vienna Convention on the Law of Treaties and States not Party to the Convention, AJIL 76 (1982) 779 .

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	CONTENTS
		Paras.
A. History ................................................................................................		1
B. Interpretation of Article 4 .............................................................		2
1.	Scope ...............................................................................................	2
2.	Function of Other Sources, in Particular
	Customary International Law ..........................................................	3
3.	Non-Retroactivity of the Convention ..............................................	6
4.	General Participation Clause? ..........................................................	7
C. Reservation ........................................................................................		9
D. Context .............................................................................................		10
1.	Relationship to Other Provisions ....................................................	10
2.	Customary Basis of Article 4 ............................................................	11
E. Appreciation .......................................................................................		12

A. HISTORY

1 The ILC Draft of 1966 contained a provision on the non-retroactivity of trea- ties—the present Article 28 (q.v., N. 2)—though the text was silent as to the temporal e ects of the later Convention itself. In 1968 in Vienna, Kearney of the US delegation postulated that the Convention should only apply to future treaties.1 This observation gave rise to two proposed amendments, one by Venezuela envisaging the Convention’s application pro futuro, as well as a five-State-proposal which, in addition, expressed itself on customary law (N. 3).2 The former was eventually rejected in 1969,3 the latter attracted much support, though it was criticised as failing to consider the general principles of law.4 A further proposal consolidated the text,5 which was eventually adopted by 81 votes to none, with 17 abstentions.6

1 OR 1968 CoW 392, para. 60; on the travaux préparatoires, see Rosenne, Cornell ILJ 4 (1970) 5 ; Vierdag, AJIL 76 (1982) 779 .

2 OR Documents 252, para. 137 (Brazil, Chile, Kenya, Sweden and Tunisia).

3 OR 1969 CoW 333, para. 41.

4See the comments in Vienna by the delegations of Uruguay, Iraq and Switzerland, ibid. 323; the unsuccessful amendment by Iran wishing to add “provisions as generally declaratory

of established principles of international law”, OR Documents 252, subpara. 136 (d). 5 OR Documents 252, subpara. 136 (e).

6 Ibid. 166, para. 19.

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B. INTERPRETATION OF ARTICLE 4

1. Scope

2Article 4 contains two separate and distinct parts. The first part deals with the Convention qua customary law or as regards any underlying general principles of law. In this respect, it is stated that the application of the Convention is without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention (N. 3–5). The second part of Article 4 concerns the Convention qua contractual obligation and provides that the

Convention applies only to treaties which are concluded after the entry into force of the present Convention with regard to such States (N. 6).

2. Functions of Other Sources, in Particular Customary

International Law

3The first part of Article 4 relates to existing rules of international law (i.e., sources other than treaties) underlying the Convention. At the Vienna Conference, the five-State-proposal leading to the later Article 4 (N. 1) referred solely to “rules of customary law”, thus bearing the danger of excluding any pertinent general principles of international law.7 As in Article 31, subpara. 3(c) (q.v., N. 25), the present formulation is broader, and the rules under international law extend to all sources of international law within the meaning of Article 38, subparas. 1(a)–(c) of the ICJ-Statute. In practice, however, the “rules” in Article 4 will concern mainly customary law.

4The rules at issue are on the law of treaties. They are set forth in the present Convention and, therefore, in writing. However, they are also binding on the parties qua customary law or as general principles of law (N. 3). As such, the rules underlie and exist parallel to, though independently of, the Convention. Their validity will not depend on the entry into force and application of the Convention (Issues of Customary International Law, N. 35). In view of the nature of these rules, treaties would be subject to them under international law independently of the Convention. In other words, they concern Convention rules which are declaratory of customary international law. Whether such customary rules underlying the Convention exist, is decided according to the usual conditions for the formation of customary law. Article 4 thus confirms the independent existence of customary law underlying the

7Sinclair, Vienna Convention 8; but see P. Tresselt, Correspondence, AJIL 96 (2002) 647.

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Convention.8 It is irrelevant here whether the customary rules existed before, upon, or after the treaty’s conclusion.9

The principle has frequently been confirmed by the Court. In the Kasikili/Sedudu Island (Botswana/Namibia) Case the Court held: “neither Botswana nor Namibia are parties to the [Convention], but . . . both of them consider that Article 31 . . . is applicable inasmuch as it reflects customary international law . . . Article 4 . . . does not, therefore, prevent the Court from interpreting the 1890 Treaty in accordance with the rules reflected in Article 31”.10

The existence and binding force of customary law depends on conditions to be ascertained elsewhere in the practice of States. The existence of a customary rule will not be directly a ected if it has been codified in a treaty rule which is not in force or has not been ratified by certain States (Issues of Customary International Law, N. 35). It is also possible that a treaty rule generates new customary law, as envisaged in Article 38 (q.v.). Convention rules declaratory of customary law are binding upon all States, whether or not they have ratified the Convention. Non-declaratory rules, on the other hand, have no such binding e ects.11

Article 4 cannot as such prevent customary rules underlying the Convention 5 from enjoying “retroactive” e ect, nor can it attribute any such e ect. These rules apply independently qua customary law, if and when their binding force

has been established, whether before or after the Convention’s entry into force. Moreover, the principle formulated in the first part of Article 4 has a wider significance applying, mutatis mutandis, to all treaties. An exception can only be seen where a State has persistently objected to the formation of a customary rule (see Issues of Customary International Law, N. 8–10).12

This conclusion solves the logical problem of how Article 4 itself may operate before the Convention has entered into force vis-à-vis a particular State.13 The principle to which reference is made in Article 4 (i.e., a customary rule applies once it has come about) is “correct” at any stage, hence also before the Convention becomes operative, as long as an independent underlying rule of customary international law can be ascertained.

8 But see Aust Modern Treaty Law 14 (“it has been argued that even when custom has been codified, it retains its separate existence. This is a controversial theory”).

9 But see the discussion in Dopagne, Article 4, N. 21.

10ICJ Reports 1999 1059 § 18. See the situation with regard to Indonesia which had not ratified the Convention, in the Sovereignty over Pulau Ligitan and Pulau Spadan (Indonesia/Malaysia) Case, ICJ Reports 2002 645, para. 37; the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) Case, ICJ Reports 2006 44, para. 125; also the Gabcikovo-Nagymaros (Hungary/Slovakia) Case, ICJ Reports 1997 62, para. 99.

11See Villiger, Manual N. 397; the statement in Vienna by the Swedish delegation, OR 1969 CoW 321, para. 43.

12Villiger, ibid. N. 87 f, 328.

13See, e.g., Rosenne, Cornell ILJ 4 (1970) 21; di erently Karl, Vertrag 360 f.

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3. Non-Retroactivity of the Convention

6The second part of Article 4 concerns the application of Convention rules qua contractual obligation and provides for their non-retroactivity. This wellestablished principle is enshrined in Article 28 (q.v.), namely that a legal rule can only provide for the future; past facts and situations are governed by the law previously in force. The Vienna Conference nevertheless considered it “safer”14 to reiterate the principle also in respect of the Convention itself. As a result, the Convention rules apply only to treaties which are concluded by a party to the Convention after the entry into force of the present Convention for that particular State. (For the first 35 States, the Convention entered into force on 27 January 1980; Article 84, N. 1.) The “treaties” referred to are those envisaged in Article 1 (q.v.). The date of entry into force of the treaty in question is determined according to Articles 11–17 (q.v.);15 that date lies after the entry into force of the Convention for that State. The Convention is therefore not applicable qua contractual obligation to a treaty concluded between Convention parties before the Convention entered into force for these States (see also N. 8). It may be noted that Article 4 lists no exceptions to this principle. Still, retroactivity can be agreed upon between States inter se, as in Article 28 (q.v., N. 8).16

For instance, the UN Law of the Sea Convention was concluded on 10 December 1982. For all States bound by the 1969 Vienna Convention (which entered into force on 27 January 1980) on the former date, the Convention rules will apply qua contractual obligation as between these States in respect of the UN Law of the Sea Convention.17

Conversely, in the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) Case, the Court considered that the Convention had entered into force between the two States at a date after various UN Conventions had been concluded for which reason “the rules contained in the Vienna Convention are not applicable”.18

4. General Participation Clause?

7Authors have suggested that the words “with regard to such States” amount to a General Participation Clause in the sense of Article 2 of the Hague Convention (IV) Respecting the Laws and Customs of War on Land of 1907.19 Accordingly, the Convention would only apply (qua contractual

14T he observation by Blix of the Swedish delegation, OR 1969 CoW 334.

15Haratsch/Schmahl, ZöR 58 (2003) 110 , for whom the entire procedure leading to the conclusion of the treaty falls under Article 4.

16Contra the observation in Vienna by the Cuban delegation, OR 1969 Plenary 54, para. 24 (“absolute non-retroactivity”).

17Aust, Modern Treaty Law 9 f.

18ICJ Reports 2006 44, para. 125.

19See Thirlway, International Customary Law 108 (“it will be a long time before anything like the majority of existing treaties in e ective operation will be treaties concluded between

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obligation, N. 6) to a subsequent treaty if all parties to that instrument were
also parties to the Convention.20 While this poses no problem in respect of
bilateral treaties, it might be feared that the Convention could not under
such circumstances be applied to multilateral conventions with widespread
membership, since it is unlikely that all member States will become parties
to the Convention.21
It is doubtful whether the terms referred to (N. 7) can be construed as mean-		8
ing “with regard to all such States”, and the preparatory materials lend no
support to this proposition.22 Rather, it is suggested that Article 4 is to be
interpreted as meaning that the Convention is applicable in respect of the
subsequent treaty “with regard to all those treaty parties which are also parties
to the Convention”.
Thus, the Convention accepts here, as elsewhere, a fragmentation of treaty relations
between the parties to a particular treaty. The application of the Convention and its
interpretation between two Convention parties, will depend, inter alia, on reservations,
suspensions and denunciations, as well as other bilateral, multilateral or general rules
applicable among them. Besides, certain parties to a treaty may at any time modify
(and interpret) the treaty inter se with e ect for themselves, as provided for in Article
40, para. 4 and Article 41 (q.v.).
C. RESERVATION
Ecuador has made a declaration generally confirming the principles in Article 4		9
(see Reservations and Declarations to the Convention and Objections Thereto).
D. CONTEXT
1. Relationship to Other Provisions
The second part of Article 4 (N. 6) reiterates the contractual principle of		10
non-retroactivity enshrined in Article 28 (q.v.). The first part of Article 4

States both or all of which are parties to the . . . Convention”); also O’Connell, International Law I 205. Article 2 of the Hague Convention states: “the provisions contained . . .

in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention”.

20Vierdag, AJIL 76 (1982) 779, 785; Frankoswka, PASIL 78 (1984) 282. This issue does not arise in respect of declaratory Convention rules (N. 11).

21Sinclair, Vienna Convention 8 .

22Dopagne, Article 4, N. 15. See also the further arguments in Sinclair, ibid.; Vierdag, AJIL 76 (1982) 780 ; J. Schmidt, Vorbehalte zu multilateralen Verträgen unter dem Aspekt des intertemporalen Völkerrechts (1992) 80 ; Haratsch/Schmahl, ZöR 58

(2003) 116 f.

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cannot be regarded as a true exception to Article 28 and indeed transgresses issues of non-retroactivity (N. 6).

2. Customary Basis of Article 4

11The second part of Article 4 (N. 4) shares the customary basis of Article 28 (q.v., N. 13). The first part (N. 2) possesses no normative quality. Rather, it constitutes a “general reservation” in respect of general international law also to be found, for instance, in Article 38 (q.v. N. 12).

E. APPRECIATION

12The contractual principle of non-retroactivity enounced in Article 4 (N. 7) appears to serve little purpose: it is stated in more detail in Article 28 and has in any event largely lost its functions given the broad customary basis of the Convention as a whole (Issues of Customary International Law, N. 52–63).23

The fi rst part of Article 4 (N. 2), on the other hand, has the important function of unequivocally “reserving” customary law and any general principles of law underlying the Convention. In this context Sir Humphrey Waldock emphasised at the Vienna Conference:

“in connexion with the proposals before the Conference on the question of non-retroac- tivity, that nothing should be done to damage the very important impact which all great conventions had as instruments for consolidating and settling international law”.24

23See Capotorti, RC 134 (1971 III) 442, that the many declaratory rules of the Convention “échappent évidemment à la limitation d’ordre temporel établie par l’article 4”.

24OR 1969 CoW 337, para. 80.

ZACHARIAS

Article 5

Treaties constituting international organisations and treaties adopted within international organisations

The present Convention applies to any treaty which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation without prejudice to any relevant rules of the organisation.

Article 5 Traités constitutifs d’organisations internationales et traités adoptés au sein d’une organisation internationale

La présente Convention s’applique à tout traité qui est l’acte constitutif d’une organisation internationale et à tout traité adopté au sein d’une organisation internationale, sous réserve de toute règle pertinente de l’organisation.

Artikel 5 Gründungsverträge internationaler Organisationen und im Rahmen einer internationalen Organisation angenommene Verträge

Dieses Übereinkommen findet auf jeden Vertrag Anwendung, der die Gründungsurkunde einer internationalen Organisation bildet, sowie auf jeden im Rahmen einer internationalen Organisation angenommenen Vertrag, unbeschadet aller einschlägigen Vorschriften der Organisation.

ILC Draft 1966

Article 4—Treaties which are constituent instruments of international organisations or which are adopted within international organisations

The application of the present articles to treaties which are constituent instruments of an international organisation or are adopted within an international organisation shall be subject to any relevant rules of the organisation.

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Materials:

Minutes: YBILC 1963 I 122, 132, 307 f, 318, 321.

ILC Draft 1963: Article 48.

WALDOCK Report IV: Article 3bis.

Minutes: YBILC 1965 I 31 f, 308.

ILC Draft 1965: Article 3bis.

Minutes: YBILC 1966 I/1 109; I/2 294, 325, 339.

ILC Draft 1966: Article 4.

Minutes: OR 1968 CoW 42 , 147 f; OR 1969 Plenary 4 , 158 f.

Vienna Conference Vote: 102:0:1

Selected Literature:

D. Amaducci, La nature juridique des traités constitutifs des organisations internationales (1971); P. Daillier, Article 5, in: Corten/Klein (eds.) 137 ; J. Gonzales Cámpos, La aplicación del futuro Convenio sobre Derecho de los Tratados a los acuerdos vinculados con Organizaciones Internacionales (Articulo 4 del Proyecto de la C.D.I. de 1966), in: Essays in Honour of D.A. de Luna (1968) 212 ; Sh. Rosenne, Developments in the Law of Treaties 1945–1986 (1989) 181 ; Id., Is the Constitution of an International Organization an International Treaty? Comunicazioni e Studi 12 (1966) 211 .

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	treaties constituting international organisations	117
	CONTENTS
		Paras.
A. History ................................................................................................		1
B. Interpretation of Article 5 ..............................................................		3
1.	Principle: Applicability of the Convention .......................................	3
2.	Exception: Relevant Rules of the International Organisation ............	7
C. Context ..............................................................................................		9
1.	Relationship to Other Provisions .....................................................	9
2.	Customary Basis of Article 5 ............................................................	10
D. Appreciation .......................................................................................		11
A. HISTORY
In respect of the termination and suspension of treaties the ILC introduced			1
n 1963 a special clause on “treaties which [were] constituent instruments of

international organisations or which [had] been drawn up within international organisations”.1 The Waldock Report IV of 1965 proposed a general formulation valid for the entire Convention.2 The ILC Draft 1966 made the application of the Convention with respect to treaties drawn up within international organisations “subject to any relevant rules of the organisation”.3

For once, much of the debate in the ILC on Article 5 took place in its Drafting Committee behind closed doors, e.g., as regards the term “adopted” (N. 6).4 The ILC Draft 1966 di ers only in form rather than in substance from today’s Article 5 (see N. 7).

In Vienna, States proposed a large number of amendments, and a surprisingly	2
long and substantial debate ensued.5 Various representatives of international

1T he debate is at YBILC 1963 I 122, 132, 307 f, 318, and 321; see Article 48 of the ILC Draft 1963, YBILC 1963 II 213; on the history, see Gonzales Cámpos, Essays de Luna

passim; Rosenne, Developments 200 .

2 YBILC 1965 II 31, para. 18; see the debate at YBILC 1965 I 31 f, 308; YBILC 1966 I/1 109; and YBILC 1966 I/2 294, 325, and 339.

3 Article 4 of the ILC Draft 1966, YBILC 1966 II 191. 4 YBILC 1966 I/2 294, paras. 79 f.

5T he debate is at OR 1968 CoW 42 , 147 f; and OR 1969 Plenary 4 , and 158 f. The amendments are reproduced at OR Documents 114 para. 51. For instance, the then Ukrainian SSR suggested substituting “shall be subject to any relevant rules” with “shall take into account the relevant rules” (rejected at OR 1968 CoW 58, para. 54): the US, the Philippines and Sweden proposed deleting the article (rejected by 84 votes to ten, with two abstentions at ibid. 57, para. 41); the UK suggested adding after the words “relevant

rules” the words “and established practices” (referred to the Drafting Committee; see N. 8);

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organisations took the floor.6 One aim of the Conference was not to impair the rights enjoyed by international organisations by virtue of their statutes.7 The Peruvian amendment led to the final version which divides Article 5 into two parts, one on the Convention’s applicability (N. 3–6) and one reserving the position of international organisations (N. 7–8).8 Article 5 was adopted by 102 votes to none, with one abstention.9

At the Conference, the US delegate McDougal feared that Article 5 “conferred upon States a comprehensive, automatic and unquestionable exemption from the fundamental principles of the Convention, if they chose to create an international organization or conclude agreements within the structure of such an organization . . . [S]tates desiring to evade the Convention’s basic provisions would only need to establish an international organization to meet their requirements”.10 However, it appears unlikely in practice that States would found such an organisation for the sole purpose of avoiding application of the Convention. It would also seem unnecessary to do so, since States are at any time free to agree inter se to amend or abrogate any provisions of the Convention (see, e.g., Articles 39–41).11

B. INTERPRETATION OF ARTICLE 5

1. Principle: Applicability of the Convention

3Article 5 falls within the context of international organisations. These are defined in Article 2, subpara. 1(i) as “intergovernmental organisations” (q.v., N. 54).

4The principle rule provided for in Article 5 is that the present Convention applies generally to the following two categories of treaties:

–any treaty which is the constituent instrument of an international organisation; and to

–any treaty adopted within an international organisation without prejudice to any relevant rules of the organisation.12

Jamaica and Trinidad and Tobago wished the article only to cover constitutions of international organisations, not treaties adopted therein (withdrawn).

6Ibid. 42, paras. 1 ; e.g., FAO, Council of Europe, League of Arab States, United International Bureaux for the Protection of Intellectual Industrial Property, IBRD, UPU, UN

	and WHO.
7	See the Philippines delegation, ibid. 54, para. 6.
8	Reproduced at OR Documents 115, subpara. 50(i); see the statement in Vienna by the
	Expert Consultant Sir Humphrey Waldock, OR 1968 CoW 57, para. 34.
9	OR 1969 Plenary 6, para. 33; after a “display of strength by the international organiza-
	tions”, Kearney/Dalton, AJIL 64 (1970) 506.
10	OR 1968 CoW 43, paras. 15 and 17; see also Kearney/Dalton ibid. 505.
11	Blix of the Swedish delegation, OR 1968 CoW 45, para. 36.
12	See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, ibid. 57,
	para. 34 (“the provisions of the Convention would be generally applicable to all treaties”).

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The treaties referred to in Article 5 are those concluded between States.13		5
Article 5 thus corresponds with Articles 1 and 2, subpara. 1(a) according to
which the Convention applies to treaties between States (q.v.).
Article 5 concerns treaties between States which were adopted within an		6
international organisation. It does not encompass treaties merely concluded

under the auspices of an international organisation or brought about through use of its facilities or deposited with it.14 To these last mentioned treaties, the exception in Article 5 does not apply (N. 7–8) and the Convention is applicable in full (Article 9, N. 3).

International agreements between States and international organisations or between international organisations fall completely outside the scope of the Convention. They are the subject of the 1986 Vienna Convention on the Law of Treaties Between States and International Organisations or Between International Organisations.15

2. Exception: Relevant Rules of the International Organisation
Article 5 provides for an exception to the rule (N. 3–6), namely that the appli-	7
cation of the Convention to the treaties concerned (N. 4) shall be without
prejudice to any relevant rules of the organisation. Where the international
organisation contains separate and di erent rules on a particular subject of
the law of treaties, these have priority over the Convention. Article 5 thus
provides for a balance between the lex generalis of the Convention and the
lex specialis of the rules of the various international organisations.16
Article 4 of the ILC Draft 1966 stipulated that the application of the Convention was
to “be subject to any relevant rules of the organisation”, thus seemingly stating that
the rules of the international organisation regularly had priority. In fact, there is no
substantial di erence between the present Article 4 and the ILC Draft 1966, and there
has always been a balance between the rule and the exception. However, as Kearney/
Dalton have pointed out, “[in] its present form [the] character [of Article 5] as lex
specialis is less pronounced”.17
The relevant rules will di er from one international organisation to another	8
and may concern the procedure by which treaties are adopted within the
organisation, reservations thereto, their interpretation and amendment, etc.18

13See the delegation of Congo-Brazzaville, ibid. 47, para. 9; Aust Modern Treaty Law 8 f.

14See the delegation of then Czechoslovakia in Vienna, OR 1968 CoW 51, para. 65; ILC Report 1966, YBILC 1966 II 191, para. 3.

15See on the topic G. Gaja, A “New” Vienna Convention on Treaties Between States and International Organizations or Between International Organizations: A Critical Commentary, BYBIL 58 (1987) 253 .

16Statement by the Spanish delegation in Vienna, OR 1968 CoW 44, para. 23.

17AJIL 64 (1970) 506; Rosenne, Developments 256 (“more balanced”).

18Aust, Modern Treaty Law 8 f, with reference at n. 9, for instance, to the rule in the ILO

Constitution according to which reservations to ILO Conventions are prohibited, ibid.

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The “rules” may be written, they may also be unwritten customary law and comprise “practices” to the extent that these are mandatory.19 In practice a majority of the various issues of the law of treaties will most likely not be covered by the organisation’s “relevant rules”, so in many cases the Convention will apply in any event.

The constitution of an international organisation may well contain rules (or practices) on interpretation of all acts within that organisation (which as leges speciales have priority over, for instance, Articles 31 and 32 [q.v.]). There is no logical di culty in applying these constitutional rules to the constitution itself (Issues of Customary International law, N. 27).20

C. CONTEXT

1. Relationship to Other Provisions

9Article 5 is of practical relevance as regards Article 9, para. 2 (q.v., N. 10–14). This provision, on the adoption of the text of a treaty at an international conference will, according to Article 5, be subject to any special rules of the international organisation concerned (to the extent that the treaty was “adopted” within the organisation, N. 6).21 Article 20, para. 3 (q.v., N. 6–7) provides for a specific application of Article 5.

2. Customary Basis of Article 5

10The rule that constitutions of international organisations as well as treaties adopted therein fall under general treaty law appeared well established in international law when it was brought before the Conference in 1968.22 By

p.109 (see also Article 19, N. 10). See also the examples in Sinclair, Vienna Convention

36, 95, and 108.

19See the statements in Vienna by the Chairman of the Drafting Committee, Yasseen, OR 1968 CoW 147, para. 15; the UK delegation (Sir Francis Vallat), OR 1969 Plenary 4, para. 22; the Greek delegation, OR 1968 CoW 52, para. 71 (“[Article 5] did not distinguish between written and unwritten rules, and established practices, provided that the relevant longus usus was accompanied by the necessary opinio juris, seemed to be covered by the term ‘any relevant rules’ ”); Verdross/Simma N. 674 (“anerkannte Praktiken”).

20See the statement by the then USSR delegation in Vienna, OR 1969 Plenary 5, paras. 27, 29.

21Kohen, RGDIP 104 (2000) 593 at n. 47 (“le seul intérêt pratique de cette disposition [article 5] est de ne pas rendre applicable à ces traités l’article 9”).

22Statement in Vienna by Ruda of the Argentine delegation, OR 1968 CoW 52, para. 74: “the debate [in Vienna] had shown that the rule laid down in [Article 5] was one of lex lata, codifying existing rules of customary law”; Kohen, ibid. (“l’article 5 . . . ne [fait] que rendre explicite une règle que de toute manière se dégage du reste du système juridique régissant les traités”).

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121

introducing the particular balance between the lex generalis and the lex specialis (N. 7), Article 5 at the Conference most likely introduced an element of progressive development which in the meantime has doubtlessly developed into customary law.

D. APPRECIATION

Occupying at first sight a rather modest niche in the Convention,23 Article 11 5 contains a general statement which appears as a model of flexibility and clarity:24 It ensures that the Convention remains as widely applicable as possible, whilst reserving the position of the rules of the various international organisations.25

23But see Sir Francis Vallat of the UK delegation in Vienna, OR 1968 CoW 44, para. 31 (“in substance, [Article 5] was one of the most important before the Committee”).

24At the Conference, the US amendment advocated a more complex text referring to eight Convention articles as exceptions; the Council of Europe even mentioned 27 exceptions and the IBRD more than 30, see Ruda of the Argentine delegation, ibid. 52, para. 75.

25See the Spanish delegation in Vienna, ibid. 44, paras. 26 and 28.

ZACHARIAS

PART II

CONCLUSION AND ENTRY INTO

FORCE OF TREATIES

Section . Conclusion of Treaties

ZACHARIAS

Article 6

Capacity of States to conclude treaties

Every State possesses capacity to conclude treaties.

Article 6 Capacité des Etats de conclure des traités

Tout Etat a la capacité de conclure des traités.

Artikel 6 Vertragsfähigkeit der Staaten

Jeder Staat besitzt die Fähigkeit, Verträge zu schliessen.

ILC Draft 1966

Article 6—Capacity of States to conclude treaties

1.Every State possesses capacity to conclude treaties.

2.States members of a federal union may possess a capacity to conclude treaties if such capacity is admitted by the federal constitution and within the limits there laid down.

Materials:

WALDOCK Report I: Article 3.

Minutes: YBILC 1962 I 57 , 193 , 240 , 267 f.

ILC Draft 1962: Article 3.

WALDOCK Report IV: Article 3.

Minutes: YBILC 1965 I 23 , 245 , 280 f.

ILC Draft 1965: Article 3.

Minutes: YBILC 1966 I/2 325, 339.

ILC Draft 1966: Article 5.

Minutes: OR 1968 CoW 59 , 148 ; OR 1969 Plenary 6 .

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Vienna Conference Vote: 88:5:10

Selected Literature (in addition to the literature mentioned in Articles 1 and 2, subpara. 1[a], q.v.):

B-J

J.A. Barberis, Nouvelles questions concernant la personnalité juridique internationale, RC 179 (1983 I) 145 ; H. Booysen, The South African Homelands and Their Capacity to Conclude Treaties, South African YBIL 8 (1982) 58 ; J.M. Castro-Rial, States, Sovereign Equality, EPIL 4 (2000) 682; K. Doehring, State, EPIL 4 (2000) 600 ; G.E. do Nascimento e Silva, The 1969 and the 1986 Conventions on the Law of Treaties: A Comparison, in: Y. Dinstein (ed.), International Law at aTime of Perplexity (1989) 461 ; K. Ginther, Article 4, in: B. Simma (ed.), The Charter of the United Nations. A Commentary (1995) 158 ; C. Greenwood, State Contracts in International Law—The Libyan Oil Arbitrations, BYBIL 53 (1982) 27 ; G. Hartmann, The Capacity of International Organizations to Conclude Treaties, in: K. Zemanek (ed.), Agreements of International Organizations and the Vienna Convention on the Law of Treaties (1971); G. Jaenicke, States, Equal Treatment and NonDiscrimination, EPIL 4 (2000) 660.

K-W

J. Klabbers, The Concept of Treaty in International Law (1996); H. Mosler, Subjects of International Law, EPIL 4 (2000) 710 ; R. Krishna, Capacity and Authority to Make International Agreements, in: S.K. Agrawala (ed.), Essays on the Law of Treaties (1972) 1; O.J. Lissitzyn, Territorial Entities Other than Independent States in the Law of Treaties, RC 125 (1968 III) 1 ; A. Patry, La capacité internationale des États: l’exercice du jus tractatuum (1983); S. Rosenne, The Perplexities of Modern International Law (2004); H Th. Schweisfurth, International Law and Third States, ZaöRV 45 (1985) 653 ; Steinberger, Constitutional Subdivisions of States or Unions and Their Capacity to Conclude Treaties, ZaöRV 27 (1967) 411 ; Id., Sovereignty, EPIL 4 (2000) 500 ; D. Turp/F. Roch, Article 6, in: Corten/Klein (eds.) 165 ; L. Wildhaber, Sovereignty and International Law, in: R.St.J. Macdonald/D.M. Johnston (eds.), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (1983) 425 ; Id., Treaty-Making Power and Constitution (1971).

The basis of this commentary was prepared by Alison Wiebalck.

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	CONTENTS
		Paras.
A. Background ........................................................................................		1
1.	Introduction .....................................................................................	1
2.	History .............................................................................................	2
B. Interpretation of Article ...............................................................		3
C. Context ...............................................................................................		9
1.	Relationship to Other Provisions ......................................................	9
2.	Matters Not Dealt With ...................................................................	10
3.	Customary Basis of Article 6 .............................................................	12
D. Appreciation ........................................................................................		13

A. BACKGROUND
1. Introduction
In the wake of decolonisation, pre-20th century distinctions between	1
“civilised” and “non-civilised” States which had previously dictated a State’s
capacity to conclude valid treaties, gave way to sovereign equality according
to which all States have the capacity to conclude treaties. In modern inter-
national law jus tractatuum (the capacity to make treaties) is inherent in the
very concept of State. All sovereign States by virtue of their sovereignty enjoy
that capacity (Article 6, q.v.).1
2. History
Today’s Article 6 was introduced in 1962 in Waldock Report I which recog-	2
nised the capacity of States to conclude treaties as well the potential capacity of
federal member states, dependent States and international organisations.2 In
1962 the ILC deleted any reference in the article to the capacity of dependent

1See the S.S. “Wimbledon” Case, PCIJ (1923) Series A no. 1, 25 (“the right of entering into international engagements is an attribute of State sovereignty”); McNair, Law of Treaties 35 (“[t]he making of treaties is one of the oldest and most characteristic exercises of independence or sovereignty on the part of States”). See also on pre-ILC literature: Id., Treaties and Sovereignty, in: Symbolae Verzijl (1958) 222 ; E. van Kleffens, Sovereignty in International Law, RC 82 (1953 I) 5 ; M. Korowicz, Some Present Aspects of Sovereignty

in International Law, RC 102 (1961 I) 1 .

2 Article 3 of Waldock Report I, YBILC 1962 II 35 .

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States as political sensitivities were involved,3 and rapid decolonisation would in any case soon make it redundant.4 Some members expressed doubts about the need for an article on capacity at all, while others felt that the Convention needed a general clause on the matter.5 The ILC Report 1962 listed three entities with the capacity to conclude treaties: (i) States and other subjects of international law; (ii) member states of a federal union; and (iii) international organisations.6 In the ILC in 1965, the remaining paragraph 2 on the treatymaking capacity of member States of a federal union generated the most discussion (N. 11).7 The two paragraphs were put to the vote separately and adopted, as was Article 5 of the ILC Draft 1966 as a whole.8 In 1968 at the Vienna Conference, amendments to delete paragraphs 1 and 2 were rejected,9 (thereby disposing of amendments to delete the entire Article).10 In 1969, upon a request by the Canadian delegation,11 paragraph 2 of the ILC Draft 1966 was finally rejected by 66 votes to 28 with 13 abstentions; paragraph 1 (today’s Article 6) was adopted by 88 votes to five, with ten abstentions.12

B. INTERPRETATION OF ARTICLE 6

3At the heart of Article 6 lies the capacity which States possess to conclude treaties. Capacity refers to two elements of treaty-making: (i) it is an essential requirement for the validity of a treaty since validity depends on the capacity of the contracting parties (e.g., Articles 7, 8, 27, 46, and 51, q.v.);13 and (ii) in the absence of possessing an inherent capacity to conclude treaties,

3 Tabibi in the ILC, YBILC 1962 I 61, para. 54.

4 Statements in the ILC by Yasseen, ibid. para. 51 f; el-Erian, ibid. 70 f, para. 90. 5 E.g., Jiménez de Aréchaga, ibid. 58, para. 13, contra Bartos, ibid. 60, para. 43.

6ILC Report 1962, YBILC 1962 II 164, paras. 1 f. See also Waldock Report I, YBILC 1962 II 36 f, paras. 2 .

7See YBILC 1965 I 245 . To discuss the international status of a member state of a federal union would come close to dealing with the question of what constituted a State which the Commission did not intend to do, Pal, ibid. 249, para. 4. Problems arose here largely from the double meaning of the word “State”, which designated both a State which was a subject of international law and a federal member state which had personality for internal

purposes only, Ago, ibid. 28, para. 76; also Jiménez de Aréchaga, ibid. 245, para. 32. 8 By seven votes to three, with four abstentions; see YBILC 1965 I 280, para. 5.

9 OR 1968 CoW 68 f, paras. 46 f.

10Ibid. 69, para. 48.

11T he Canadian delegation took the view that a federal constitution was an internal law to be interpreted within the exclusive jurisdiction of the federal State itself, OR 1968 CoW 62, para. 48; also Kearney/Dalton, AJIL 64 (1970) 506 .

12OR 1969 Plenary 15, para. 51.

13Statements in the ILC by Amado, YBILC 1965 I 27, para. 61; and Jiménez de Aréchaga, YBILC 1962 I 59, para. 19; see also Steinberger, ZaöRV 27 (1967) 427.

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an international entity cannot be a State.14 Article 6 is concerned with the
latter only.
Capacity implies the ability to claim or confer rights and obligations on other		4
subjects of international law.15 Every State possesses equal legal capacity, an
attribute which depends not on the power of each State, but on its existence
as an international legal person. The capacity to conclude treaties implies,
hence, the competence to do so.
Article 6 does not intend to resolve the matter of capacity, the elements of which
are defined in terms of itself. In particular, the ILC did not wish to be drawn into a
secondary codification of the question of international personality.16 A State possesses
capacity because it is a State: an entity is determined to be a State, inter alia, because it
has capacity. Hence, concomitant to the notion of treaty-making as an attribute of the
sovereignty of States is the definition of State itself (see Article 1, N. 8).17
To possess capacity does not imply the right to be a party to a particular		5
treaty.18 There is no rule of international law permitting every State to become
a party to every treaty. This complies with the fundamental principle of the
freedom of the parties to choose with which States they will enter into a
treaty relationship,19 and at any time to agree to terminate the treaty (Article
54, q.v.). In other words, the capacity to conclude treaties also includes the
capacity not to do so.20
Article 6 is not exclusive, it does not imply that other subjects of international		6
law have no capacity to conclude treaties.21 But only States possess capacity.
Other entities have it conferred upon them by States. The capacity a State

possesses is inherent and unlimited. Entities such as international organisations enjoy limited capacity only.22

14Amado in the ILC, YBILC 1962 I 61, para. 48.

15Doehring, EPIL 4 (2000) 601.

16Statements in the ILC by Rosenne, YBILC 1965 I 25, para. 31; el-Erian, ibid. 27, para. 57; and Briggs, YBILC 1962 I 59, para. 25; see also Waldock Report IV, YBILC 1965 II 18, para. 2.

17Waldock in the ILC, YBILC 1965 I 252, para. 44 (“the real question was what constituted a State for the purposes of the rule that all States had the capacity to enter into treaties”).

18Th. Schweisfurth, International Treaties and Third States, ZaöRV 45 (1985) 658.

19Ago in the ILC, YBILC 1962 I 249, para. 17.

20See here Turp/Roch, Article 6, N. 20.

21Tunkin, YBILC 1965 I 25, para. 38.

22Depending on the functions they fulfil, Mosler, EPIL 4 (2000) 711 f. See Bartos in the ILC, YBILC 1962 I 70, para. 74; Amado, YBILC 1965 I 29, para. 79 (“[t]he term ‘State’ implied the qualification ‘independent’, and ‘independent’ implied ‘treaty-making capacity’ ”).

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7In stating that every State possesses capacity to conclude treaties, Article 6 confirms the sovereign equality of all States (see the sixth preambular para.,

Preamble N. 13).23

8The States to which Article 6 refers are discussed in Article 1 (q.v., N. 8), treaties and the capacity to conclude them in Article 2, subpara. 1(a) (q.v., N. 9–14).

C. CONTEXT

1. Relationship to Other Provisions

9At first glance, Article 6 seems merely to repeat what is already stated in Articles 1 and 2, subpara. 1(a) (q.v.).24 However, distinctions transpire. Article 1 confines the scope of the Convention to treaties between States, while Article 2, subpara. 1(a) outlines the use of the term “treaty”. Article 6, on the other hand, proclaims the right of every State, without exception, to conclude treaties.25 Article 6 is explicit and states what is implicit in Articles 1 and 2, subpara. 1(a). Furthermore, the capacity of “other subjects” of international law, international organisations in particular, is referred to in Article 3 (q.v.). Finally, as a rule, the treaty-making capacity of States is exercised by Heads of State, their Governments or through their representatives as provided for in Article 7 (q.v.).26

2. Matters Not Dealt With

10Article 6 does not define the notion of capacity, the elements of which are explained in terms of itself (N. 4).

11Conspicuous by its absence in Article 6 is also the question of the capacity of federal member states to conclude treaties.27 This does not mean that such states are denied treaty-making capacity, but that any such treaties are not governed by the Convention. If a member state of a federal State is a State

23See the Cypriot delegation in Vienna, OR 1968 CoW 68, para. 36. The UN Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960, GA Res 1514 (XV), provides in Article 1: “the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights [and] is contrary to the [UN] Charter”. See the statement by Tunkin in the ILC, YBILC 1965 I 25, paras. 37 f.

24See, e.g., the statements in Vienna by the delegations of Italy, OR 1968 CoW 65, para. 3, and the US, ibid. para. 6, and at OR 1969 Plenary 7, para. 52.

25Statement in Vienna by the Thai delegation, OR 1968 CoW 67, para. 26.

26Jennings/Watts N. 597.

27On the federal debate in the ILC, see, inter alia, YBILC 1965 I 245 .

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within the meaning of international law, its treaty-making capacity will in any case be governed by Article 6.

Article 5, para. 2 of the ILC Draft 1966 on the Capacity of a Federal State to Conclude Treaties was deleted in 1969 (N. 2) as it might have been interpreted as an acknowledgement by the Convention that, under international law, member states of a federal union had in principle the capacity to conclude treaties (which, in turn, would imply that they were fully-fledged members of the international community).28

3. Customary Basis of Article 6
Article 6, based on the principle of the sovereign equality of States (N. 7),	12
represents a general rule of international law and is declaratory of customary
international law.29
D. APPRECIATION
Article 6 is a one-line, seven-worded provision and the shortest in the Con-	13

vention. It gave rise to considerable di culty in the ILC which was divided on the issues which the article raised.30 Aptly called by Reuter the “anticolonialist paragraph”,31 all doctrinal vestiges of discrimination between States have been eliminated.32 The article sets out a descriptive and deliberately general statement proclaiming one of the essential attributes of statehood, namely, the capacity to conclude treaties.33 In harmony with Articles 1 and 2, subpara. 1(a) (q.v.), Article 6 confines the scope of the Convention to treaties concluded between States.

28Waldock in the ILC, ibid. 248, para. 75.

29Statements in Vienna by the Cambodian delegation, OR 1968 CoW 61, para. 43; and in the ILC by Lachs, YBILC 1965 I 24, para. 25, and at 251, para. 24; and Yasseen, ibid. 251, para. 27. See also Sinclair, Vienna Convention 21.

30Waldock in the ILC, YBILC 1965 I 23, para. 3.

31YBILC 1965 I 252, para. 40. See the statement by the Mongolian delegation, OR 1968 CoW 64, para. 65 (“special significance for newly independent States”).

32Statements in Vienna by the delegations of Poland, OR 1968 CoW 63, para. 60, and the then USSR, ibid. 64, para. 63.

33Statement in Vienna by the Cambodian delegation, ibid. 61 f, para. 43.

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Article 7

Full Powers

1.A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:

(a)he produces appropriate full powers; or

(b)it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.

2.In virtue of their functions and without having to produce full powers, the following are considered as representing their State:

(a)Heads of State, Heads of Government and Ministers for Foreign A airs, for the purpose of performing all acts relating to the conclusion of a treaty;

(b)heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;

(c)representatives accredited by States to an international conference or to an international organisation or one of its organs, for the purpose of adopting the text of a treaty in that conference, organisation or organ.

Article 7 Pleins pouvoirs

1.Une personne est considérée comme représentant un Etat pour l’adoption ou l’authentification du texte d’un traité ou pour exprimer le consentement de l’Etat à être lié par un traité:

a)si elle produit des pleins pouvoirs appropriés; ou

b)s’il ressort de la pratique des Etats intéressés ou d’autres circonstances qu’ils avaient l’intention de considérer cette personne comme représentant l’Etat à ces fins et de ne pas requérir la présentation de pleins pouvoirs.

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2.En vertu de leurs fonctions et sans avoir à produire de pleins pouvoirs, sont considérés comme représentant leur Etat:

a)les chefs d’Etat, les chefs de gouvernement et les ministres des a aires étrangères, pour tous les actes relatifs à la conclusion d’un traité;

b)les chefs de mission diplomatique, pour l’adoption du texte d’un traité entre l’Etat accréditant et l’Etat accréditaire;

c)les représentants accrédités des Etats à une conférence internationale ou auprès d’une organisation internationale ou d’un de ses organes, pour l’adoption du texte d’un traité dans cette conférence, cette organisation ou cet organe.

Artikel 7 Vollmacht

1.Eine Person gilt hinsichtlich des Annehmens des Textes eines Vertrags oder der Festlegung seines authentischen Textes oder der Abgabe der Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, als Vertreter eines Staates,

a)wenn sie eine gehörige Vollmacht vorlegt oder

b)wenn aus der Übung der beteiligten Staaten oder aus anderen Umständen hervorgeht, dass sie die Absicht hatten, diese Person als Vertreter des Staates für die genannten Zwecke anzusehen und auch keine Vollmacht zu verlangen.

2.Kraft ihres Amtes werden, ohne eine Vollmacht vorlegen zu müssen, als Vertreter ihres Staates angesehen

a)Staatsoberhäupter, Regierungschefs und Aussenminister zur Vornahme aller sich auf den Abschluss eines Vertrags beziehenden Handlungen;

b)Chefs diplomatischer Missionen zum Annehmen des Textes eines Vertrags zwischen Entsendeund Empfangsstaat;

c)die von Staaten bei einer internationalen Konferenz oder bei einer internationalen Organisation oder einem ihrer Organe beglaubigten Vertreter zum Annehmen desTextes eines Vertrags im Rahmen der Konferenz, der Organisation oder des Organs.

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article

ILC Draft 1966

Article 7—Full powers to represent the State in the conclusion of treaties

1.Except as provided for in paragraph 2, a person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty only if:

(a)He produces appropriate full powers; or

(b)It appears from the circumstances that the intention of the States concerned was to dispense with full powers.

2.In virtue of their functions and without having to produce full powers, the following are considered as representing their State:

(a)Heads of State, Heads of Government and Ministers for Foreign A airs, for the purpose of performing all acts relating to the conclusion of a treaty;

(b)Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;

(c)Representatives accredited by States to an international conference or to an organ of an international organisation, for the purpose of the adoption of the text of a treaty in that conference or organ.

Materials:

WALDOCK Report I: Article 4.

Minutes: YBILC 1962 I 71 , 195 , 243 , 268 f.

ILC Draft 1962: Article 4.

WALDOCK Report IV: Article 4.

Minutes: YBILC 1965 I 32 , 253 , 281.

ILC Draft 1965: Article 4.

Minutes: YBILC 1966 I/2 325, 339.

ILC Draft 1966: Article 6.

Minutes: OR 1968 CoW 69 , 185 ; OR 1969 Plenary 16.

Vienna Conference Vote: 101:0:3

Selected Literature:

D. Hutchinson, The Juridical Nature of Article 7 of the Vienna Convention on the Law of Treaties, Australian YBIL 17 (1996) 187 ; G.E. do Nascimento e Silva, Full Powers, EPIL 2 (1995) 494 ; P. Kovacs, Article 7, in: Corten/Klein (eds.) 195 ; Sir Arthur Watts, Heads of States, Heads of Governments, Foreign Ministers, RC 247 (1994 III) 19 .

The basis of this commentary was prepared by Alison Wiebalck.

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	CONTENTS
		Paras.
A. Background ........................................................................................		1
1.	Introduction ....................................................................................	1
2.	History ............................................................................................	2
B. Interpretation of Article 7 ..............................................................		3
1.	Scope ...............................................................................................	3
2.	General Rule (Subpara. 1[a]) ............................................................	8
3.	Dispensation (Subpara. 1[b]) ...........................................................	10
4.	Full Powers in Virtue of a Person’s Functions (Para. 2) ......................	12
	a) Heads of State and Government; Ministers for Foreign A airs
	(Subpara. 2[a]) ...........................................................................	15
	b) Heads of Diplomatic Missions (Subpara. 2[b]) ............................	17
	c) Representatives at International Conferences or Organisations
	(Subpara. 2[c]) ............................................................................	18
C. Reservation ........................................................................................		20
D. Context ..............................................................................................		21
1.	Relationship to Other Provisions ......................................................	21
2.	Matters Not Dealt With ...................................................................	22
3.	Customary Basis of Article 7 ............................................................	23
E. Appreciation .......................................................................................		24
A. BACKGROUND
1. Introduction
When negotiators were regarded as the agents of their Sovereigns, full pow-			1
ers authorised them to conclude an agreement complete with an assurance

by the principal to ratify the agreement.1 Those full powers took the form of comprehensive documents defining the agent’s authority.2 The form and language were of fundamental importance since a Sovereign could only refuse

1Murty, International Law 206. The original purpose of a full power was to bind the sovereign granting it, McNair, Law of Treaties 121. See generally J.M. Jones, Full Powers

and Ratification (1946).

2 O’Connell, International Law I 211 f.

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4

5

6

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article

to ratify a treaty concluded by his agent if the latter exceeded his authority.3 In time, agreements became commitments on behalf of the State, not the principal. Treaties could be concluded only with the approval of the legislature.4 Expanding world trade spawned other quicker and more e cient means of concluding treaties including inter-governmental and inter-departmental agreements (Article 11, N. 7–8). Simplified treaty-making procedures no longer required personal representation by the Head of State, now often replaced by the Head of Government, the Minister for Foreign A airs or their representatives.5 In turn, the importance of full powers declined.6 Even the practice of issuing full powers when an instrument of ratification was deposited fell away, mere possession of the document being considered sufficient evidence of the authority of the representative to express the consent of the State.7

2. History

2In 1962 Waldock Report I introduced Article 4 on the authority to negotiate, sign, ratify, accede to or accept a treaty.8 The resulting Article 4 of the ILC Draft 1962 sought to specify those cases where no evidence of authority was required and those in which a representative had either to produce evidence of his authority or be required to do so if requested.9 Waldock Report IV proposed distinguishing between when authority may be presumed from the o ce of the representative and when authority may be presumed on production of full powers only.10 The ILC Draft 1965, now considerably shortened and resembling the present Article 7, eventually became Article 6 of the ILC Draft 1966.11 Various amendments were introduced at the Vienna Conference, though none were successful.12 Debate in 1968 centred largely on the

Sinclair, Vienna Convention 30.

Murty, International Law 207.

Reuter, Introduction N. 19.

ILC Report 1966, YBILC 1966 II 193, para. 3; Sinclair, Vienna Convention 30; O’Connell, International Law 211 f.

7 O’Connell, ibid. 212; J.M. Jones, Full Powers and Ratification (1946) 33.

8YBILC 1962 II 38 ; see Articles 6 and 15 of the 1959 Fitzmaurice Report IV, YBILC 1959 II 98 , 105 f. The ILC debate in 1962 is at YBILC 1962 I 71 , 195 , 243 , and

268 f.

9 ILC Report 1962, YBILC 1962 II 165 , in particular 165, para. 1.

10YBILC 1965 II, 18 at 20, para. 3. The ILC debate in 1965 is at YBILC 1965 I 32 , 253 , and 281; that of 1966 at YBILC 1966 I/2 325, and 339.

11Article 4 of the ILC Draft 1965 is at YBILC 1965 II 160, and Article 6 of the ILC Draft 1966 at YBILC 1966 II 192 . For an account of the legislative evolution of Article 7, see Hutchinson, Australian YBIL 17 (1996) 190 .

12See OR Documents 119 , paras. 71 . The proposal of the Federal Republic of Germany to include a reference to internal law was withdrawn, OR 1968 CoW 75, para. 69. The

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advisability of retaining subpara. 1(b) (N. 10–11); however, a proposal by Sweden and Venezuela to delete this provision was defeated and subpara. 1(b) approved.13 In 1969, after incorporating an amendment by Ghana on subpara. 1(b), the Conference adopted Article 6 by 101 votes to none, with three abstentions.14

B. INTERPRETATION OF ARTICLE 7
1. Scope
The matter of a representative producing full powers arises in Article 7 for the	3
purpose of adopting or authenticating the text of a treaty or expressing
the consent of a State to be bound by a treaty (Articles 9–11, q.v.). Article
7 relates, not to the initial stages of treaty making, but to the steps taken in
connection with the conclusion of a treaty, which is consistent with its posi-
tion in Section 1 of Part II on the Conclusion of Treaties.15
According to Article 2, subpara. 1(c) (q.v., N. 29–30), “ ‘full powers’ means a document
emanating from the competent authority of a State designating a person or persons to
represent the State for negotiating, adopting or authenticating the text of a treaty, for
expressing the consent of the State to be bound by a treaty, or for accomplishing any
other act with respect to a treaty”.
While Article 7 must be read together with this definition of full powers in Article 2,
subpara. 1(c), the scope of the latter is wider, including also “negotiations” as well as
“any other act with respect to a treaty”.
A person is considered as representing his State for the purpose of perform-	4
ing certain acts in relation to a treaty when designated by the competent State
authority to have the relevant authority to accomplish such acts.16 Article 7

amendments by Hungary, Poland, Italy, Spain, the US, Iran and Mali were referred to the Drafting Committee.

13T he proposal to delete subpara. 1(b) was rejected by 51 votes to 13, with 23 abstentions, OR 1968 CoW 76, para. 71. Subpara. 1(b) was then adopted by 83 votes to three, with five abstentions, OR 1968 CoW 188, para. 30. The debate in 1968 is at OR 1968 CoW 69 , and 185 .

14OR 1969 Plenary 16, para. 57.

15But see the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 75, para. 65 (“negotiation [was] not really a specific stage of the process of concluding a treaty [and] seemed to be covered by the reference to adoption and authentication”); Bindschedler of the Swiss delegation, ibid. 72 f, para. 41 (“the greater power to adopt the text of a treaty included the lesser power to negotiate”).

16Jennings/Watts N. 597. The formulation “representing” is to be distinguished from “represents”. Thus, Article 7 was drafted not from the point of view of the o cials performing the acts, but from the point of view of their counterparts; see Waldock, in the ILC, YBILC 1965 I 33, para. 38 , para. 42.

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lists the various persons in respect of full powers. It states the general rule (subpara. 1[a], N. 8–9) before enumerating the exceptions (subparas. 1[b] and 2[a]–[c], N. 15–19). Thus, States may be represented:

–formally, by persons holding full powers (subpara. 1[a], N. 8–9);

–informally, when the participating States decide that full powers are not required because other factors provide an adequate basis for mutual confidence (subparas. 1 [b], N. 10–11); and,

–by the persons listed in virtue of their special functions and legal status under international law (para. 2, N. 12–19).17

Article 7 is concerned with the evidence of authority, not the authority itself. The actual authority of State organs is a matter for the internal law of each State only. Article 7 operates on the international plane.18

5Article 7 states who is required to produce an instrument of full powers and who is presumed to possess authority without the production of full powers, i.e., whether or not it is safe for a State to conclude an agreement without having to call for full powers.19 The crucial point here is whether a representative is competent to bind the authority he purports to represent.20

6A representative’s authorisation is of practical significance mainly in the case of agreements entering into force on signature, exchange of instruments or other simplified means (Articles 11–13, q.v.).21 For when a treaty is subject to ratification, a representative acting within his authority does not finally commit his State to be bound by the treaty (Article 14, N. 12).

7Article 7 draws attention to the risk when the production of full powers is dispensed with, e.g., as in subpara. 1(b) (N. 10–11).22 A State accepting a representative’s signature without calling for production of full powers may find that the person lacked authority or exceeded the authority granted to

17See the observation by the Romanian delegation, OR 1968 CoW 74, para. 56.

18T hese distinctions generated much comment during the preparation of Article 7; see, e.g., the observations to the ILC by the Governments of Austria, Waldock Report IV, YBILC 1965 II 18; and Luxembourg, ibid. 19; also the statement in Vienna by Blix of the Swedish delegation, OR 1968 CoW 70, para. 17; the ILC Report 1966, YBILC 1966 II 192, para. 1; the statements in the ILC by Waldock, YBILC 1965 I 33, para. 38; and Briggs, ibid. 34, para. 49, and 74, para. 52. For a vigorous discussion on the competence of a domestic organ to conclude international agreements, see Article 21 of the Harvard Draft on the Law of Treaties, AJIL 29 (1935) Supplement 992 .

19ILC Report 1966, YBILC 1966 II 192, para. 1; Ago in the ILC, YBILC 1965 I 34 f, paras. 60 and 62.

20See the observation by the Swedish Government to the ILC, Waldock Report IV, YBILC 1965 II 19; Yasseen in the ILC, YBILC 1965 I 34, para. 53.

21Jennings/Watts N. 597; Aust, Modern Treaty Law 78 f.

22See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 75, para. 63.

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him (Articles 8 and 47, q.v.). Article 7 places the risk squarely on the State omitting to request full powers rather than on the State whose agent exceeds his authority.23 Those concerned with drawing up the texts are responsible for satisfying themselves, before the texts are presented for signature, that those wishing to sign are authorised to do so.24

2. General Rule (Subpara. 1[a])
According to subpara. 1(a), a person is considered as representing a State if	8
he produces appropriate full powers. Full powers applies to the instrument
or document, not to the legal act itself.25 Appropriate full powers enables
accommodation of any (international) State practice in the matter.26 Con-
versely (and subject to the other exceptions in Article 7, N. 10–19), if no
full powers are produced, the person is not considered to possess authority
to commit his State to be bound by the treaty.
The production of appropriate full powers is the fundamental safeguard	9
for the representatives of the States concerned with respect to each other’s
qualifi cations to represent their State for the purpose of performing the
particular act in question.27 Until the instrument is withdrawn, full powers
remain valid indefinitely as long as there is an act covered by them yet to be
performed.28
3. Dispensation (Subpara. 1[b])
Subpara. 1(b) o ers States the option to dispense with full powers.29 Thus,	10
authorisation to represent the State in the treaty-making procedure can be

established without full powers, if it appears from the practice of the States concerned or from other circumstances that States intended to consider that person as representing the State for such purposes, i.e., the purposes set out in the opening sentence of para. 1 (N. 3).

23Observation by the Swedish Government to the ILC, Waldock Report IV, YBILC 1965 II 19; also ibid. 21, para. 7, See also Kovacs, Article 7, N. 69–71.

24See the statements in the ILC by Waldock, YBILC 1965 I 39, para. 40, and Rosenne, YBILC 1962 I 72, para. 22.

25Statement in the ILC by its Chairman Yasseen, YBILC 1966 I/2 325, para. 77.

26Statement in Vienna by the Indian delegation, OR 1968 CoW 73, para. 43.

27ILC Report 1966, YBILC 1966 II 193, para. 3. See the Supreme Court of Israel in the 1968 Attorney-General of Israel v. Kamiar Case, ILR 44 (1966–68) 262 (“[a] State whose competent Minister for Foreign A airs authorized an Ambassador in a formal document of full powers to sign a given treaty with another State cannot deny the signature of that authorized person on the treaty, and the signature binds the State according to the rules of international law”).

28Aust, Modern Treaty Law 77.

29ILC Report 1966, YBILC 1966 II 193, para. 3.

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Insofar as dispensation transpires from the practice of States concerned, this requires active or implied conduct indicating a common intention that the States parties concerned regard the particular category of o cials as authorised and not requiring full powers.30 Other circumstances (the term is broader than that of the “practice of States”)31 can be seen, e.g., in written or oral statements of a Government according to which a particular o cial is authorised to conclude an agreement with another State. 32

The text proposed in Vienna in 1969 read: “it appears from the practice of the States concerned . . . that their intention was to dispense with full powers”.33 The text finally adopted in subpara. 1(b) (“it appears from the practice of the States concerned . . . that their intention was to consider that person as representing the State for such purposes and to dispense with full powers”) emphasises the limit on that particular representative’s authority to the specific purposes stipulated in the opening sentence of para. 1 (N. 3).34

11States may agree to dispense with full powers in bilateral negotiations or if it is apparent that the result of the negotiations could be incorporated in an agreement in simplified form, usually by an exchange of notes in negotiations between Ministers for Foreign A airs.35 In such cases, the onus is on the negotiators to see that they are qualified to bind their respective States.36

4.Full Powers in Virtue of a Person’s Functions (Para. 2)

12Paragraph 2 sets out the three categories under which persons are considered in international law as representing their State in virtue of their functions without having to produce full powers.37 These three categories are unqualified exceptions as in subpara. 2(a) (N. 15–16), or qualified exceptions as in subparas. 2(b) and (c) (N. 17–19), to the general rule in subpara. 1(a) (N. 8–9) requiring production of appropriate full powers. In the cases of

30Murty, International Law 217.

31Statements in Vienna by the Polish delegation, OR 1968 CoW 73, para. 50; and the Expert

Consultant, Sir Humphrey Waldock, ibid. 75, para. 64.

32Statements by the delegations of Sweden (Blix), ibid. 70, para. 16, and Venezuela, ibid. 71, para. 22. See also Murty, International Law 217. The words “practice of States concerned” go back to an amendment by the US, OR Documents 120, subpara. (ii)(d); see the statement by the Canadian delegation, OR 1968 CoW 72, para. 31; also Aust, Modern Treaty Law 77 f.

33OR Documents 121, para. 79.

34T he amendment aimed at clarifying the text; see Yasseen as Chairman of the Drafting Committee, OR 1969 Plenary 16, para. 56.

35See the statements by the delegations of then Czechoslovakia, OR 1968 CoW 70, para. 15; India, ibid. 73, para. 44; and Argentina, ibid. 74, para. 53; and by the Expert Consultant, Sir Humphrey Waldock, ibid. 75, para. 63 (“if the provision were omitted, a large category of treaties, namely agreements in simplified form, would not be covered”). See also Jennings/Watts N. 597 n. 11 and 12.

36Statement by the Indian delegation, OR 1968 CoW 73, para. 44.

37ILC Report 1966, YBILC 1966 193, para. 4.

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para. 2, a State is entitled to rely on the competence of a representative to bind his State without requiring specific evidence of that authority.38

In the Land and Maritime Boundary (Cameroon/Nigeria) Case, Nigeria argued that Article 7, para. 2 “[w]as solely concerned with the way in which a person’s function as a State’s representative [was] established, but [did] not deal with the extent of that person’s powers when exercising that representative function”.39 The Court disagreed with reference to the ILC Report 1966 according to which “Heads of State . . . are considered as representing their State for the purpose of performing all acts relating to the conclusion of a treaty” (see Article 46, N. 14).40

Article 7, para. 2 raises an incontestable presumption that the designated 13 o ce-holders are ex o cio entitled to perform the specified acts without the need to produce full powers notwithstanding that, as a matter of internal

law, they may not be empowered to do so.41

As the ILC Report 1966 pointed out, if internal law limiting the powers of State organs to enter treaties was to render voidable any consent given on the international plane in disregard of a constitutional limitation, “it would follow that other States would not be entitled to rely on the authority to commit the State ostensibly possessed by a Head of State, Prime Minister, Foreign Minister, etc., under Article [7]; they would have to satisfy themselves in each case that the provisions of the State’s constitution are not infringed or take the risk of subsequently finding the treaty void”.42

To possess the authority to perform acts relating to treaty-making without 14 having to produce full powers is essential to the process of simplified treatymaking.43 However, it is always open to a State to require full powers for a particular treaty agreement to which special importance is attached.44 The words “without having to produce” thus imply two sides of the same coin: on

the one hand, the right of any negotiating state to consider certain persons holding a particular position as being duly authorised; and, on the other, the right to call for an instrument of full powers in certain cases.45

38Waldock Report IV, YBILC 1965 II 20, para. 3; ILC Report 1966, YBILC 1966 II 193, para. 4.

39ICJ Reports 2002 123, paras. 258 (italics added ).

40Ibid., 125, para. 265, with reference to YBILC 1966 II 193, para. 4. See P. d’Argent, Des frontières et des peuples: L’a aire de la frontière terrestre et maritime entre le Cameroun et le Nigéria (arrêt sur le fond), AFDI 48 (2002) 301 .

41Sinclair, Vienna Convention 32.

42ILC Report 1966, YBILC 1966 II 240.

43Observation by the Danish Government to the ILC, Waldock Report IV, YBILC 1965 II 19.

44See the statements in Vienna by the Canadian delegation, OR 1968 CoW 72, para. 32; and Yasseen, Chairman of the Drafting Committee, ibid. 186, para. 9 (“self-evident that a State always had the right to require full powers for the performance of an international act relating to the conclusion of a treaty”).

45Even from Ministers for Foreign A airs; see the US delegation in Vienna, ibid. 70, para. 12; Reuter in the ILC, YBILC 1965 I 37, para. 17.

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a) Heads of State and Government; Ministers for Foreign A airs (Subpara. 2[a])

15Subpara. 2(a) covers Heads of State, Heads of Government and Ministers for Foreign A airs. Each is recognised in international law as representing his State for the purpose of performing all acts relating to the conclusion of a treaty, ranging from adopting and authenticating the text of a treaty to signature, ratification and accession including the deposit and exchange of instruments of ratification, accession or acceptance.46 Subpara. 2(a) contains a presumption that these persons possess the capacity to conclude treaties.47 They need provide no full powers or other kind of evidence of their authority to execute the acts in question. Indeed, it is from these persons that full powers are issued.

In international law the State is a subject of international law and the Head of State its representative. The Head of Government is the head of the executive authority. The Minister for Foreign A airs is the member of Government charged with the conduct of the State’s international relations48 and as such particularly concerned with the conclusion of treaties.

In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.Yugoslavia) (Preliminary Objections) Case, the Court relied on Article 7, para. 2 in support of its conclusion (albeit going beyond the law of treaties) that “every Head of State is presumed to be able to act on behalf of the State in its international relations”.49

16Given that subpara. 2(a) provides that the three State organs in question (N. 15) may in virtue of their functions be considered as possessing authority

46See the statements in the ILC by Waldock, YBILC 1962 I 76, paras. 79 and 86; Lachs, ibid., para. 85; and Castrén, YBILC 1965 I 38, para. 26. Thus, the powers in subpara. 2(a) are wider than those in subparas. 2(b) and (c) (N. 17–19), Lachs, ibid. 253 f, para. 65; Castren, ibid. para. 61; Sir Humphrey Waldock as Expert Consultant in Vienna, OR 1968 CoW 75, para. 61.

47See the statements in Vienna by the delegations of the Federal Republic of Germany, OR 1968 CoW 69, para. 5; and Sweden (Blix), ibid. 70 f, para. 18.

48Watts, RC 247 (1994 III) 99. According to Article 41, para. 2 of the Vienna Convention on Diplomatic Relations of 1961, the Minister for Foreign A airs is the proper channel of communication for diplomatic business. See furthermore the World Court in the Eastern Greenland (Denmark/Norway) Case, PCIJ (1933) Series A/B no. 53 71 (“[t]he Court considers it beyond all dispute that a reply of this nature [‘the Norwegian Government would not make any di culties in the settlement of this matter’] given by the Minister for Foreign A airs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the minister belongs”). In the Maritime Delimitation and Territorial Questions (Qatar/Bahrain) Case, ICJ Reports 1994 112, para. 25, the Court held that the minutes signed by the foreign ministers constituted an international agreement, without considering the constitutional argument raised by Bahrain that its foreign minister was not constitutionally empowered to conclude such an agreement.

49ICJ Reports 1996 622, para. 44.

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to perform all acts in relation to a treaty, the onus is put on their State to bring home to other contracting States any restriction on that ostensible authority.50 Failure to do so will render the agreement unimpeachable on grounds of lack of authority.

b) Heads of Diplomatic Missions (Subpara. 2[b])

Subpara. 2(b) concerns heads of diplomatic missions. In the context of 17 treaty making, they represent their State for the purpose of adopting the

text of a treaty between the accrediting State and the State to which they are accredited. (see Article 9, q.v.).51 Thus, heads of diplomatic missions cannot represent their States for the purpose of performing all acts relating to the conclusion of a treaty.52 A further limitation lies therein that heads of diplomatic missions are empowered to adopt treaties only between the accrediting State and the State to which they are accredited, i.e., between their own State and the State to which they are assigned.53 Acts exceeding subpara. 2(b) may fall under subparas. 1(a) and (b) (N. 8–11).

c) Representatives at International Conferences or Organisations (Subpara. 2[c])

Subpara. 2(c) covers representatives accredited by States to an interna- 18 tional conference or to an international organisation (Article 2, subpara. 1[i], N. 54) or one of its organs for the purpose of adopting the text of

a treaty in that conference, organisation or organ (see Article 9, para. 2, N. 10–14). The powers of these persons correspond with those of subpara. 2(b) (N. 17), i.e., they have automatic qualification to represent their State solely in respect of the adoption of a treaty.54 Under Article 7, therefore, a person accredited to an international organisation as a representative of his State has the same powers as the head of a permanent mission.55 Any act relating to the conclusion of a treaty beyond adopting the text in that specific conference, organisation or organ to which the representative is accredited

50Waldock Report IV, YBILC 1965 II 20, para. 4.

51ILC Report 1966, YBILC 1966 II 193, para. 5.

52Ibid.; Verdross in the ILC, YBILC 1962 I 72, para. 25. Article 3, subpara. 1(c) of the Vienna Convention on Diplomatic Relations 1961 provides that the “functions of a diplomatic mission consist, inter alia, in . . . negotiating with the government of the receiving State”.

53Waldock in the ILC, YBILC 1966 I/2 325, para. 79.

54ILC Report 1966, YBILC 1966 II 193, paras. 5 f; Waldock in the ILC, YBILC 1962 I 244, para. 83 (“heads of permanent missions to international organizations possessed certain treaty-making functions analogous to those exercised by heads of diplomatic missions”).

55ILC Report 1966, ibid. para. 6. See the statements by Rosenne, YBILC 1962 I 244, para. 73, also 196, para. 5; and Lachs, YBILC 1965 I 254, para. 67.

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requires full powers under subpara. 1(a) (N. 8–9) except as provided for by subpara. 1(b) (N. 10–11).56

The representatives comprise those entitled to represent their State and do not include all members of the delegation.57 They are accredited if they possess credentials authorising them to represent their State.58

19The right of the representative is limited to adoption of the text of a treaty in that conference, organisation or organ where he is accredited (e.g., in the UN to the General Assembly or the Security Council). His powers do not extend even to any another organ of the same international organisation,59 though modern practice tends to envisage regular accreditation for the organisation as a whole.60

C. RESERVATION

20In 1977 Finland introduced an interpretative statement—objected to by the United Kingdom—which it withdrew on 20 April 2001 (see Reservations and Declarations to the Convention and Objections Thereto).

56Murty, International Law 216; do Nascimento e Silva, EPIL 2 (1995) 496.

57Statement in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1968 CoW 186, para. 6. The general term “representatives” was chosen in preference to the somewhat awkward “heads of a permanent mission to an international organization”; compare the present subpara. 2(c) with Article 4, subpara. 2(b) of the 1962 ILC Draft, YBILC 1962 II 164 f.

58Sabel, Procedure 44 . Credentials give notice of the name of the person authorised to act as a representative. On the relationship and distinction between credentials and full powers, see Murty, International Law 201 , 216.

59See the statements in Vienna by Expert Consultant Sir Humphrey Waldock as, OR 1968 CoW 75, para. 66; and in the ILC, YBILC 1965 I 254, para. 76; and by the Chairman, Yasseen, and Rosenne, ibid., paras. 79 and 80, respectively.

60See the statement in Vienna by el-Erian of the United Arab Republic, OR 1968 CoW 71 f, para. 29, mentioning the Convention on the Privileges and Immunities of the UN of 1946 which refers to representatives to the principal and subsidiary UN organs as well as to conferences convened by the UN; also Yasseen, Chairman of the Drafting Committee, ibid. 186, para. 6 (“contemporary practice showed that some representatives were accredited not merely to an organ of an international organization, but to the organization as a whole”).

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D. CONTEXT

1. Relationship to Other Provisions

The di ering scopes of Article 7 and Article 2, subpara. 1(c) have been indicated 21 above (N. 3). The relationship with other provisions may be summarised as follows:

According to Article 6 (q.v.), States have the capacity to conclude treaties. That capacity is exercised by various State organs. The authority of the various organs to perform acts in relation to a treaty is a question of competence according to Article 7.

Article 8 (q.v.) provides that an act relating to the conclusion of a treaty performed by a person not authorised under Article 7 is without legal e ect unless confirmed by the State.61

As provided for in Articles 11–15 (q.v.), the consent of a State to be bound does not necessarily rely on the production of full powers. For example, Article 12, subpara. 1(c) (q.v., N. 11) and Article 14, subpara. 1(d) (q.v., N. 11) state that the intention of the State to give that e ect to the signature or to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

Article 46 (q.v.) deals with the invalidity of a treaty arising from a manifest violation of domestic law, whereas Article 7 is confined to stating where the risk of not producing full powers lies on the international level.62

Article 47 (q.v.) concerns specific restrictions on the authority of the representative to express the consent of a State.

Article 67, para. 2 (q.v., N. 5) stipulates that a representative may be required to produce full powers when communicating an instrument declaring invalid etc. the operation of a treaty.

Article 77, subpara. 1(a) (q.v., N. 5) provides that full powers may be kept in the custody of the depositary. In practice, the depositary will insist on the production of full powers for the signature of treaties for which he is to be the depositary.63

61See the statement by the Indian delegation in Vienna, OR 1968 CoW 73, para. 45; do Nascimento e Silva, EPIL 2 (1995) 496. Article 8 is the corollary to Article 7, Sinclair, Vienna Convention 33.

62Statements in Vienna by the delegations of the Federal Republic of Germany, OR 1968 CoW, 69, para. 5; Switzerland, ibid. 72, para. 34; India, ibid. 73, para. 45; Sir Humphrey Waldock (Expert Consultant), ibid. 75, para. 67; Iran, ibid. 240, para. 20; and by Briggs in the ILC, YBILC 1962 I 74, para. 53.

63Aust, Modern Treaty Law 78; Holloway, Modern Trends 442 f.

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2. Matters Not Dealt With

22 The negotiation stage of treaty-making is not specifically within the ambit of Article 7 though it is mentioned in Article 2, subpara. 1(c) (q.v., N. 29–30).64

3. Customary Basis of Article 7

23The Vienna Conference had little doubt that Article 7 generally corresponded with State practice and accurately reflected customary international law.65 This applies also to subpara. 1(b) despite a certain unease at the time of its adoption (N. 2).66 There do not appear to have been subsequent developments which would lead to another conclusion.

E. APPRECIATION

24Article 7 contributes to safeguarding the certainty of international treaty relations by defining the persons with authority to bind their State. The provision is nevertheless su ciently flexible to meet the needs of modern State practice.67 As a part of the varied and complex procedures of treaty-making, the issuing of full powers also serves as an important indication of the commitment of the parties to be bound by the treaty.68

64It appeared in Article 4 of the ILC Draft 1965, YBILC 1965 II 160, but was later dropped: “it was self-evident that negotiation was an important phase of the treaty-making process, but as a legal rule could not be worked out”, Tunkin in the ILC, YBILC 1965 I 255, para. 87; see the Expert Consultant in Vienna, Sir Humphrey Waldock, OR 1968 CoW 75, para. 65 (“negotiation . . . not really a specific stage of the process of concluding a treaty”).

65See the statements by the delegations of Switzerland (Bindschedler), OR 1968 CoW 72, para. 34; India, ibid. 73, para. 42; and by Waldock in the ILC, YBILC 1965 I 254, para. 75 f, in respect of subpara. 2(c) (N. 18–19); also Kearney/Dalton, AJIL 64 (1970) 508 (“generally accepted practice”); Kovacs, Article 7, N. 13 (“pratique coutumière stable”). On the early doubts expressed by the German Government as to para. 2 (N. 12–19), see Ress, Verfassung 809 f.

66See the Indian delegation, OR 1968 CoW 73, para. 45.

67Statements by the Chilean delegation, OR 1968 CoW 71, para. 23; Lachs in the ILC, YBILC 1965 I 35, para. 64; Tsuruoka, ibid. para. 81; Sinclair, Vienna Convention 32.

68Murty, International Law 206. See, for example, Article 12, subpara. 1(c) (q.v., N. 11–14).

ZACHARIAS

Article 8

Subsequent confirmation of an act performed without authorisation

An act relating to the conclusion of a treaty performed by a person who cannot be considered under Article 7 as authorised to represent a State for that purpose is without legal e ect unless afterwards confirmed by that State.

Article 8 Confirmation ultérieure d’un acte accompli sans autorisation

Un acte relatif à la conclusion d’un traité accompli par une personne qui ne peut, en vertu de l’article 7, être considérée comme autorisée à représenter un Etat à cette fin est sans e et juridique, à moins qu’il ne soit confirmé ultérieurement par cet Etat.

Artikel 8 Nachträgliche Bestätigung einer ohne Ermächtigung vorgenommenen Handlung

Eine sich auf den Abschluss eines Vertrags beziehende Handlung, die von einer Person vorgenommen wird, welche nicht nach Artikel 7 als zur Vertretung eines Staates zu diesem Zweck ermächtigt angesehen werden kann, ist ohne Rechtswirkung, sofern sie nicht nachträglich von dem Staat bestätigt wird.

ILC Draft 1966

Article 7—Subsequent confirmation of an act performed without authority

An act relating to the conclusion of a treaty performed by a person who cannot be considered under Article 6 as representing his State for that purpose is without legal e ect unless afterwards confirmed by the competent authority of the State.

148

article

Materials:

WALDOCK Report II: Article 6.

Minutes: YBILC 1963 I 23 , 207 f, 289, 311, 317.

ILC Draft 1963: Article 32.

WALDOCK Report IV: Article 32.

Minutes: YBILC 1966 I/1 11 , 115; 1966 I/2 335, 339.

ILC Draft 1966: Article 7.

Minutes: OR 1968 CoW 79 , 188; OR 1969 Plenary 16 f, 159.

Vienna Conference Vote: 103:0:2

Selected Literature:

N. Angelet/T. Leidgens, Article 8, in: Corten/Klein (eds.) 227 .

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	CONTENTS
		Paras.
A. Background .........................................................................................		1
1.	Introduction .....................................................................................	1
2.	History .............................................................................................	2
B. Interpretation of Article 8 ...............................................................		3
C. Context ...............................................................................................		8
1.	Relationship to Other Provisions .......................................................	8
2.	Customary Basis of Article 8 .............................................................	9
D. Appreciation ........................................................................................		10
A. BACKGROUND
1. Introduction
Where a State representative, when performing an act relating to the con-			1
clusion of a treaty, ostensibly lacks the required authority (acting as falsus
procurator and/or ultra vires),1 the other State cannot, as for instance in Article
47 (q.v., N. 6), rely on bona fides in order to implement the treaty.

For a rare example of State practice, see the incident in 1908 of the US Minister in Romania who, without having had the authority to do so, signed two conventions. With regard to the first, the US Government had given him no authority at all; for the second, he had obtained full powers by letting his Government understand that he was to sign quite a di erent treaty.2

2. History
Article 6 of Waldock Report II set out the first draft in 1963, distinguish-	2

ing between a representative who ostensibly did not possess any authority to bind the State; and a representative who possessed ostensible authority to bind the State, but had in fact been given instructions restricting particular aspects of his authority.3 However, various members of the ILC considered

1 Statement by De Luna in the ILC, YBILC 1963 I 25, para. 49.

2Hackworth’s Digest of International Law IV, 467, cited in Waldock Report II, YBILC 1963 II 46, para. 3. On the subject, see also A.P. Sereni, La représentation en droit inter-

national, RC 73 (1948 II) 73 . 3 YBILC 1963 II 46 f.

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the provision unnecessary, inter alia, as it concerned such a rare occurrence.4 In 1966 the ILC decided to divide the article into two parts. Para. 2 eventually became Article 47 (q.v., N. 2), while para. 1, the later Article 8, was adopted unanimously.5 In Vienna, the provision was not called into question apart from various amendments concerning textual changes.6 Article 47 was adopted by 103 votes to none, with two abstentions.7

B. INTERPRETATION OF ARTICLE 8

3Article 8 concerns an act relating to the conclusion of a treaty as in Articles 9–17 (q.v.). The provision does not deal with a State’s consent as such which has indeed not been given.8 Article 8 is not limited to cases where States become parties to a treaty by signature (Article 12, q.v.), since where ratification, acceptance or approval are still required, the State will have to confirm the act (N. 6).

4The act will have been performed by a person who cannot be considered under Article 7 as authorised to represent a State for that purpose. Article 8 thus deals with the act of a person who was not duly authorised by the State—neither generally nor in respect of a particular treaty9—as he was not given the necessary powers to conclude a treaty.10 Such a person cannot be considered a representative of the State.11 The reasons why the representative acted in such a way—possibly “through error or lack of zeal”12—are irrelevant in this context.

4E.g., statements in the ILC by Ago, YBILC 1963 I 23, para. 22; Tsuruoka, ibid. para. 18; Briggs, YBILC 1966 I/2 12, para. 14, and ibid. 22, para. 4 (“the Commission’s tendency to dot the I’s unnecessarily”). The main debate is at YBILC 1963 I 22 . Article 32 of the

ILC Draft 1963 is reproduced at YBILC 1963 II 193 f.

5Article 8 was to be placed immediately after Article 7, as it did not concern a question of invalidity; see Ago in the ILC, YBILC 1966 I/1 14, paras. 37 ; Tunkin, ibid. para. 46. The provision was adopted at YBILC 1966 I/1 115, paras. 1 . Article 7 of the ILC Draft

1966 is reproduced at YBILC 1966 II 193 f.

6 OR 1968 CoW 79 , 188; OR 1969 Plenary 16 f, 159. The amendments are at OR Documents 121 f.

7 OR 1969 Plenary 17, para. 66.

8In Vienna in 1969 the US delegation unsuccessfully proposed an amendment to extend the text to “an act expressing the consent of a State to be bound by a treaty”, OR Documents 121, subpara. 81(b). See also Yasseen in the ILC, YBILC 1966 I/1 14, para. 47; the delegation of the Democratic Republic of Congo in Vienna, OR 1968 CoW 77,

para. 17.

9 Waldock Report II, YBILC 1963 II 46, para. 1.

10Statement in Vienna by the Spanish delegation, OR 1968 CoW 76, para. 2; ILC Report 1966 II 194, para. 2.

11Ago in the ILC, YBILC 1966/I 14 para. 37.

12ILC Report 1963, YBILC 1963 II 193, para. 1.

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Where there is no authority to enter into a treaty, the act is not attributable		5
to the State and does not reflect its consent.13 Thus, the State is in principle
entitled to disavow the act of its representative. However, the act does not
render the treaty invalid (as in Article 47, N. 6–7);14 rather, the treaty never
entered into force, it is simply without legal e ect (but see N. 7).15
In the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v.Yugoslavia) (Preliminary Objections) Case, Yugoslavia
argued that the application before the Court was inadmissible as the person granting
the authorisation to initiate proceedings had done so in violation of domestic law.
The court rejected this objection on the basis of Article 7 (q.v., N. 15).16 In his diss.
op. Judge Kreca referred per analogiam in particular to the e ects of Article 8, namely
that “a measure taken by an o cial outside the sphere of competence of that o cial
is by definition a non-existent measure, a measure limited to the factual sphere as it is
devoid of legal e ect”.17
Whereas Article 7 explains positively in what circumstances a person may be		6
considered as representing a State, Article 8 concerns the negative situation
where authorisation is lacking.
In practice, as soon as this situation becomes known, the representative’s State will
repudiate the treaty, pointing out the lack of authorisation (otherwise, it may well,
through its conduct, be confirming the treaty, N. 7). It is then up to the other nego-
tiating States to argue, e.g., that appearances were such that they could assume that
person’s full powers within the meaning of Article 7. In this situation, Article 8 does
not provide for dispute settlement, as in Articles 65–68 (q.v.) for disputes arising within
Part V of the Convention.
Of course, the treaty may afterwards be confirmed by that State (i.e., the		7
State whose representative acted without authorisation) by its competent
authority.18 Only then will the treaty enter into force—with e ect ex tunc.19

Two forms of confirmation are conceivable: (i) the State may formally ratify, accept or approve the act;20 or (ii) where signature alone was required (N. 3), the State in question may through its conduct, even tacitly, endorse its

13ILC Report 1966, YBILC 1966 II 193, para. 1, and 194, para. 3.

14But see the title in Aust, Modern Treaty Law 83 (“Invalid Acts”).

15Ago in the ILC, YBILC 1966 I/1 14, para. 37.

16ICJ Reports 1996 604, 621 f.

17Ibid. 705, para. 39.

18It is the State itself which determines the authority which is competent to perform a certain act; see the statement in Vienna by the Chairman of the Drafting Committee, Yasseen, OR 1969 Plenary 16 f, paras. 60 and 62; Angelet/Leidgens, Article 8, N. 11. Note that the title of Article 8 suggests the rule rather than the exception.

19See the cogent reasoning in Angelet/Leidgens, ibid. N. 13.

20Waldock Report II, YBILC 1963 II 46, para. 2.

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consent to be bound by the treaty by evidencing the acceptance of the act, for instance by publishing the treaty or implementing it.21

C.CONTEXT

1.Relationship to Other Provisions

8Article 8, dealing with the case of the falsus procurator, can be distinguished from Article 47 (q.v.) which concerns the situation where a representative possessing ostensible authority to bind the State was in fact given instructions restricting particular aspects of his authority (N. 2). There is a fine line between the two provisions: In Article 8 the treaty remains a priori without e ect (but see N. 7), whereas Article 47 envisages the continuing existence of the treaty the invalidity of which can be invoked according to Articles 65–68

(Article 47, N. 6).

The matter is clear if, one the one hand, the representative acted without authority (as in Article 8) or, on the other, if there was authority but the representative did not comply with express (limiting) instructions (as in Article 47). In between lies the situation where an agent had authority to enter into a particular treaty, but went beyond his full powers by accepting unauthorised extensions or modifications of it. It is doubtful whether this situations pertains to Article 8, as suggested by the ILC.22

2. Customary Basis of Article 8

9As with Article 47 (q.v., N. 10), when the ILC took up Article 8 in 1963 the provision appeared innovatory. Given the widespread support which Article 8 attracted in the ILC and later in Vienna (N. 2), it can be assumed that it now reflects customary international law.

D. APPRECIATION

10In essence, Article 8 prevents an unauthorised agent from binding his State.23 This is a rare situation which probably needed to be spelled out in the Con-

21Aust, ModernTreaty Law 83; ILC Report 1966, YBILC 1966 II 194, para. 3; the statement in Vienna by Yasseen, OR 1969 16, para. 58. The Venezuelan amendment, proposing to require “express confirmation”, was rejected; see OR Documents 121, subpara. 82(c); OR 1968 CoW 80, para. 52.

22ILC Report 1963, YBILC 1963 II 46, para. 3.

23Briggs in the ILC, YBILC 1963 I 22, para. 4; see also Castren, ibid. para. 20; Rosenne, ibid. 23, para. 15.

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vention.24 The consequences for the other State—the treaty obtains a priori no legal e ect—may be far-reaching, particularly as no provision is made for the settlement of a dispute. Thus, Article 8 in fact advises negotiating States to insist on the production by State representatives of full powers according to Article 7 (q.v.).

24 ILC Report 1966, YBILC 1966 II 194, para. 2.

ZACHARIAS

Article 9

Adoption of the text

1.The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2.

2.The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States present and voting, unless by the same majority they shall decide to apply a di erent rule.

Article 9 Adoption du texte

1.L’adoption du texte d’un traité s’e ectue par le consentement de tous les Etats participant à son élaboration, sauf dans les cas prévus au paragraphe 2.

2.L’adoption du texte d’un traité à une conférence internationale s’e ectue à la majorité des deux tiers des Etats présents et votants, à moins que ces Etats ne décident, à la même majorité, d’appliquer une règle di érente.

Artikel 9 Annehmen des Textes

1.Der Text eines Vertrags wird durch Zustimmung aller an seiner Abfassung beteiligten Staaten angenommen, soweit Absatz 2 nichts anderes vorsieht.

2.Auf einer internationalen Konferenz wird derText eines Vertrags mit den Stimmen von zwei Dritteln der anwesenden und abstimmenden Staaten angenommen, sofern sie nicht mit der gleichen Mehrheit die Anwendung einer anderen Regel beschliessen.

ILC Draft 1966

Article 8—Adoption of the text

1.The adoption of the text of a treaty takes place by the unanimous consent of the States participating in its drawing up except as provided in paragraph 2.

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155

2.The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States participating in the conference, unless by the same majority they shall decide to apply a di erent rule.

Materials:

Waldock Report I: Article 5.

Minutes: YBILC 1962 I 77 , 199 , 204, 245, 269.

ILC Draft 1962: Article 6.

Waldock Report IV: Article 6.

Minutes: YBILC 1965 I 43 , 255.

ILC Draft 1965: Article 6.

Minutes: YBILC 1966 I/2 294, 325 f, 339 f.

ILC Draft 1966: Article 8.

Minutes: OR 1968 CoW 80 , 185, 213 , 252, 309, 476; OR 1969 Plenary 17 .

Vienna Conference Vote: 91:1:7

Selected Literature:

R. Casado Raigón, Comentarios sobre la negociación y la adopción de los tratados bilaterales y multilaterales restringidos, Anuario de derecho internacional 15 (1998) 757 ; M. Kamto, Article 9, in: Corten/Klein (eds.) 260 ; K. Lewan, Which States Must be Bound Before a Multilateral Treaty Enters into Force if Nothing is Specified? ZaöRV 29 (1969) 536 ; M. Limpert, Verfahren und Völkerrecht. Völkerrechtliche Probleme des Verfahrens von Kodifikationskonferenzen der Vereinten Nationen (1984); R. Sabel, Procedures at International Conferences, 2nd ed. (2006); L.B. Sohn, Voting Procedures in United Nations Conferences for the Codification of International Law, AJIL 69 (1975) 310 .

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156	article
	CONTENTS
		Paras.
A. Background ........................................................................................		1
1.	Introduction ....................................................................................	1
2.	History ............................................................................................	2
B. Interpretation of Article 9 ..............................................................		3
1.	Scope ...............................................................................................	3
2.	Unanimity as the General Rule (Para. 1) ..........................................	7
3.	Specific Majorities (Para. 2) ..............................................................	10
C. Context ..............................................................................................		15
1.	Relationship to Other Provisions ......................................................	15
2.	Matters Not Dealt With ...................................................................	16
3.	Customary Basis of Article 9 ............................................................	17
D. Appreciation .......................................................................................		18

A. BACKGROUND

1. Introduction

1 Once States drawing up a treaty have completed their negotiations, they will adopt the treaty text. Up until the Second World War, treaties were generally voted upon unanimously by the negotiating States. More recently, international conferences have adopted treaties by a specific, in particular by a simple or a two-thirds majority.1 If a conference has been convened by the United Nations—e.g., the 1968/1969 Vienna Conference (N. 11)—the practice of the UN Secretariat is to prepare provisional rules of procedure for the conference, including draft voting rules on adopting the text.2 In a further development, the principle of consensus has been applied since the 1970’s (N. 13).3

1 ILC Report 1966, YBILC II 194; Waldock Report I, YBILC 1962 I 40, para. 6; Aust Modern Treaty Law 84 f.

2 Waldock Report I, ibid. 41, para. 8. See UN GA Resolution 366 (IV) of 3 December 1949 establishing “Rules for the calling of international conferences of States”.

3 Verdross/Simma N. 700.

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2. History
In 1959 the ILC adopted a first article on the “drawing up and method of		2

adoption of the text” of a treaty.4 These provisions were taken over by Sir Humphrey Waldock in his first Report of 1962 which proposed a simple majority for the adoption of a treaty text at a conference.5 The debate in 1962 centered on di erent types of multilateral treaties, on the majority for their adoption and on the legal quality of the draft article.6 The resulting ILC Draft 1962 proposed a two-thirds majority.7 Four States filed observations thereupon.8 After further debate in 1965 and 1966, the ILC prepared its final draft in 1966.9 The latter attracted various amendments at the 1968 Vienna Conference concerning mainly the distinction between certain types of multilateral treaties.10 All amendments were referred to the Drafting Committee, though none were included in the final text.11 In 1969 a discussion arose in Vienna as to which States constituted the two-thirds majority in para. 2: the ILC Draft 1966 had suggested “States participating in the conference”, whereas the Conference eventually limited the majority to “States present and voting” (N. 11).12 Article 9 was adopted by 91 votes to one, with seven abstentions.13

4 ILC Report 1959, YBILC 1959 II 98 (Article 6). For a detailed description of the drafting history, see Sohn, AJIL 69 (1975) 318 .

5 Article 5 of Waldock Report I, YBILC 1962 II 39 ; see ibid. 40, para. 2.

6For the debate, see YBILC 1962 I 77 , 199 , 204, 245, and 269; see, e.g., the statements in the ILC by Waldock, ibid. 77, para. 4 (“[t]he Commission would be out of touch with current practice if some form of majority rule were not applied”); and Lachs, ibid. 81,

	para. 75 (“excess of detail”).
7	YBILC 1962 II 166 f.
8	Waldock Report IV, YBILC 1965 II 24 f; the Governments of Japan and Sweden con-
	sidered the proposal redundant, whereas the US thought it served a useful purpose. For
	Luxembourg, the only true rule was that of mutual agreement which applied equally to
	multilateral treaties.
9	Reproduced at YBILC 1966 II 194 f (Article 8). The minutes are at YBILC 1965 I 43 .
	255; and YBILC 1966 I/2 294, 325 f, and 339 f. The ILC Draft 1965 is at YBILC 1965
	II 160 f (Article 6).

10OR Documents 122; see in particular the amendments by Peru, France, then Czechoslovakia and the then Ukrainian SSR.

11T he debate is reproduced at OR 1968 CoW 80 , 185, 213 , 252, 309, and 476. The words “unanimous consent” in Article 8, para. 1 of the ILC Draft 1966 were shortened to “consent” in today’s Article 9, para. 1.

12T he debate is reproduced at OR 1969 Plenary 17 . The change was adopted by 73 votes to 16, with ten abstentions, ibid. 23, para. 52.

13Ibid. 23, para. 52.

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B. INTERPRETATION OF ARTICLE 9

1. Scope

3The adoption of a treaty text is an important step in the treaty-making process and a matter of substance.14 Signifying the end of the negotiations,15 it is the formal act whereby form and content of a treaty are voted upon.16 Article 9 concerns the adoption of a treaty by States, even if the conference was convened by an international organisation and conducted under its auspices; it does not apply to treaties drawn up by and adopted within the international organisation (Article 5, N. 6).17 The provision speaks of the adoption of the text of a treaty, which includes voting on the individual provisions during the conference and on the entire text at the end of the conference.18 Voting on procedural matters, which usually requires a simple majority, is not covered by Article 9.19

4At the stage of adoption, negotiating States are concerned solely with the drawing up of the text of the treaty. Unless the circumstances suggest otherwise, a vote cast upon adoption is not in any sense an expression of a State’s expression to be bound by the text.20

Only exceptionally will States agree that the adoption of a treaty constitutes another means of expressing consent to be bound by the treaty within the meaning of Article 11 (q.,v., N. 7).21 Further consequences of the adoption of the treaty may also be found in Article 24, para. 4 (q.v., N. 12–13), in particular as regards the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty.

14Waldock Report IV, YBILC 1965 II 24, para. 1.

15See the definition of “negotiating State” in Article 2, subpara. 1(e) (q.v., N. 40–42); according to Article 2, subpara. 1(c) (q.v., N. 29–30), “full powers” will authorise the person representing a State at the conference to adopt the treaty.

16Sinclair, Vienna Convention 33; Aust, Modern Treaty Law 84.

17ILC Report 1966, YBILC 1966 II 195, para. 6; Aust, ibid. 70 f. See the judgment of the

European Court of Justice of 19 March 1996 in the case of Commission of the European Communities v. Council of the European Union, Case C-25/94, ILR 113 (1999) 376 f, N. 44, concerning the European Community’s membership in FAO.

18See Article 36, para. 1 of the Rules of Procedure of the 1968/1969 Vienna Conference, OR 1968 xxviii (N. 11).

19Waldock Report IV, YBILC 1965 II 25, para. 3; Waldock Report I, YBILC 1962 II 40, para. 7, n. 10 (“the role of the simple majority vote for procedural decisions is universally admitted”, italics omitted ).

20Waldock Report I, YBILC 1962 II 40, para. 3; ILC Report 1966, YBILC II 194, para. 1; Aust, Modern Treaty Law 84.

21Aust, ibid. 84, 113 f.

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States disagreeing with the text will refuse to vote. However, particularly in the case of
bilateral treaties and conferences with few States, this may prompt the other participants
to conduct further negotiations in order to overcome the objections to the text and to
obtain as many States parties to the treaty as possible.22 The same applies in the case
of objections by “key” States participating at multilateral conferences. Thus, there are
indirect connexions between a treaty’s adoption and States’ consent to be bound.
Article 9 provides di erent voting rules when adopting a treaty. It distinguishes		5
between treaties necessitating a unanimous vote (the lex generalis in para. 1,
N. 7–9) and those requiring a specific majority (the lex specialis in para. 2,
N. 10–14). Para. 1 is the stricter of the two in that the majority mentioned
presupposes all the States participating in the drawing up of the treaty (N.
7), whereas para. 2 requires only two-thirds of the States present and voting
at the conference (N. 11).
Article 9 is residuary in three respects:23 (i ) para. 1 is subject to para. 2 (N.		6
10–14); (ii) para. 2 authorises States to apply by a specific majority a di er-
ent voting majority (N. 14); and (iii) in respect of the entire article States
are generally free to decide unanimously—expressly or tacitly (i.e., also by
consensus, N. 13)—to choose other solutions.
2. Unanimity as the General Rule (Para. 1)
Para. 1 provides that the adoption of a treaty takes place by the consent		7
of all the States. In particular, unanimity is required from the States par-
ticipating in its drawing up. (A State not content with this requirement

can withdraw from the negotiations, though other States may then wish to overcome the objection and continue the negotiations, N. 4).24 While the rule of unanimity in para. 1 is subject to any exception provided in para. 2 and shares the general residuary nature of Article 9 (N. 6), it remains relevant in that it states the fundamental and traditional principle of the adoption of treaties.25 The distinguishing element between paras. 1 and 2 is whether the negotiations took place at an international conference (in which case the two-thirds majority in para. 2 applies, N. 10) or not (in which case para. 1 requires unanimity).26

22See the observation in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 83, para. 39; Sinclair, Vienna Convention 33.

23See Waldock, ibid. para. 37 (“complete freedom to States at conferences to fix their own voting rules”) and para. 38 (“general residuary rule for cases where the States concerned had not agreed on a voting rule before the conference”).

24Sinclair, Vienna Convention 33.

25ILC Report 1966, YBILC 1966 II 194, paras. 2 f.

26On the various forms of negotiation, see N. 16.

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8Bilateral treaties necessarily require unanimity for their adoption.27

If adoption is brought about through initialling of the text, this may also imply authentication of the treaty text (Article 10, para. [b], N. 6.); a signature at this stage may even imply consent to be bound (Article 12, q.v.).28

9In practical terms, para. 1 plays a role in respect of treaties drawn up between few States.29

Often, such treaties are negotiated for a specific purpose, e.g., their object and purpose is such that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, e.g., treaties of economic integration.30

3. Specific Majorities (Para. 2)

10Para. 2, mentioning specific majorities, concerns the adoption of the text of a treaty at an international conference. This includes traditional law-mak- ing conferences, whether under the auspices of an international organisation or otherwise (N. 3). In fact, para. 2 implies any gathering of representatives (Article 7, subpara. 2[c], N. 18) of more than two States at which a treaty is negotiated.31 If the treaty negotiations are not conducted at a conference, para. 1 applies (N. 7).

11The adoption of a treaty text at an international conference takes place by the vote of two-thirds of the States present and voting.32 Thus, absentees and abstentions are not taken into account.33 Particularly at large conferences, unanimity would appear impractical.34 Conversely, a simple majority would not provide su cient protection to minority groups at the conference, for

27See the statement by Amado in the ILC, YILC 1962 I 80, para. 62 (“so evident that it did not need to be stated”).

28Aust, Modern Treaty Law 85, refers here to the “telescoping of the stages of treatymaking”.

29Waldock Report I, YBILC 1962 II 40, para. 4.

30Sinclair, Vienna Convention 34.

31Aust, Modern Treaty Law 85 f. Thus, para. 2 does not define the notion of an international conference, ILC Report 1966, YBILC 1966 II 194, para. 4. See Jennings/Watts N. 598 at n. 2.

32ILC Report 1966, YBILC 1966 II 194 f, paras. 4 f.

33Aust, Modern Treaty Law 85 f. See the statement in Vienna by the Uruguayan delegation according to which the rule in para. 2 would induce all States “to be present and to take an active part”, OR 1969 Plenary 19, para. 12; also by the Mexican delegation, ibid. 17, para. 72.

34Sinclair, Vienna Convention 34 (“not appropriate”); Jennings/Watts N. 598.

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the other States could adopt the treaty text and hence override the views of what might be quite a substantial group of States at the conference.35

To give an example: Assume that 100 States participate at a conference. Of these, 86 are present when the vote on a particular treaty text takes place, though among them 20 abstain. Thus, 66 States will be voting either for or against the treaty text. Here, a two-thirds majority of States present and voting as in para. 2 requires 44 States in favour of the proposal. If the majority was calculated on the basis of all the States participating (100) as in para. 1,36 it would require 67 votes, i.e., more than the 66 States which actually voted.

The Rules of Procedure prepared for the 1968/1969 Vienna Conference (History of the Convention, N. 14–19) provided in Rule 36, para. 1 of Chapter VI (“Voting”) for the “Required Majority”: “[d]ecisions of the Conference on all matters of substance shall be taken by a two-thirds majority of the representatives present and voting”.37

Para. 2 also applies to conferences attracting only few—as little as three	12
(N. 10)—States which in practice may lead to di culties when applying
the two-thirds majority. In this situation, States should have no di culty in
agreeing to apply, for instance, the unanimity rule (N. 14).38
Voting methods at multilateral conferences have changed since the Vienna	13

Convention in 1969, and majorities are now often reached di erently.39 For instance, since UNCLOS III the method of consensus (general agreement) is frequently applied at international conferences,40 in particular where a formal vote would otherwise lead to the rejection of a proposal or of the entire text. However, it cannot be said that with consensus international practice has again returned to the original voting method of unanimity in para. 1 (N. 3–6), since consensus is to be distinguished from unanimity.41 Interestingly,

35ILC Report 1966, YBILC 1966 II 195, para. 5. See Vallat of the UK delegation in Vienna, OR 1969 Plenary 22, para. 41 (“the temporary absence of delegations from the venue of the conference, or from the conference hall itself, the number of abstentions—all would combine to create the most serious consequences with respect to the possible adoption of the text”).

36As originally envisaged in the ILC Draft 1966 also for para. 2 (N. 2), YBILC 1966 II 194 f; see Yasseen of the Drafting Committee in Vienna, OR 1969 Plenary 17, para. 67.

37OR 1968 xxviii.

38Waldock Report IV, YBILC 1965 25, para. 3; Sinclair, Vienna Convention 36 f.

39Reuter, Introduction N. 105, speaks of “countries relying on their numbers rather than on their individual weight”.

40Verdross/Simma N. 700.

41See Aust, Modern Treaty Law 86 on the structure and process of consensus; also B. Buzan, Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea, AJIL 75 (1981) 323 ; R.D. Eustis, Procedures and Techniques of Multinational Negotiation: The LOS III Model, Virginia Journal of International Law 17 (1976/77) 217 ; L.B. Sohn, Rôle et signification du consensus dans l’élaboration du droit international, Annuaire IDI (1997) 13 .

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rules of procedure at conferences often envisage falling back on the two-thirds majority if the search for consensus fails.

The UN Conference on the Establishment of an International Criminal Court of 1998 provided in Rule 34, para. 1 of its Rules of Procedure that “[t]he Conference shall make its best endeavours to ensure that the work of the Conference is accomplished by general agreement”. Rule 36 goes on to state that “[s]ubject to rule 34, decisions of the Conference on all matters of substance shall be taken by a two-thirds majority of the representatives present and voting”.42

As an example of the disadvantages of formal voting, Aust has referred to the conference which drew up the Vienna Convention on the Representation of States in their Relations with International Organisations of a Universal Character of 1975. The conference “was a failure from the start because it was unacceptable to most states which host international organisations and conferences”.43

14The two-thirds majority rule in para. 2 applies, unless by the same majority States shall decide to apply a di erent rule. States may wish to adopt a treaty text by other majorities, for instance, by simple majority, unanimously, or even by means of consensus (N. 13). This preliminary vote also requires a two-thirds majority. Para. 2 does not state how States shall decide. Thus, as far as para. 2 is concerned, the decision can be taken, with the required two-thirds majority, expressly, or, now with all States involved (i.e., a stricter requirement), implicitly and, indeed, even by means of consensus.44 In practice, one of the first tasks at an international conference is to adopt rules of procedure, including the majority required for matters of substance and procedure.45 On the whole, Article 9 leaves to States the ultimate power to decide the voting rule by which they will adopt the text of the treaty.46

C. CONTEXT

1. Relationship to Other Provisions

15The relationship to Article 5 has been explained above (N. 3). States’ vote on the treaty text, i.e., its adoption according to Article 9, precedes the authentication of the treaty whereby the text is established as authentic and definitive, though there is an overlapping area (Article 10, N. 7). Article 9 also plays a role in Article 24, para. 4 (N. 4).

42A/CONF.138/2/Add.2 of 14 April 1998.

43Modern Treaty Law 86.

44Kamta, Article 9, N. 34, writes here: “[l]a dernière partie du paragraphe 2 de l’article 9 prend ainsi tout son sens”.

45Ibid. 85 f.

46ILC Report 1966, YBILC 1966 II 194 f, para. 5.

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2. Matters Not Dealt With
Originally, the ILC wished to introduce a further provision on “Negotiation		16
and Drawing up of a Treaty” preceding adoption,47 though it was dropped in
view of its lack of legal quality.48 Article 9 has to some extent been overtaken
by voting methods such as consensus (general agreement, N. 13).
3. Customary Basis of Article 9
Without doubt, para. 1 of Article 9 reflects a rule of customary law. The		17

situation is less clear in respect of para. 2. Some delegations in Vienna and certain authors have regarded the provision as constituting lex ferenda.49 In view of the comfortable majority by which States adopted Article 9 in Vienna (N. 2) and the lack of any subsequent objections by States and courts, para. 2 may be considered as having hardened into customary law. New voting methods such as consensus would not appear to call its customary nature into question, since conference voting rules often fall back on the two-thirds majority in para. 2 when consensus cannot be reached. Indeed, Article 9 is precisely intended to serve as a residuary rule (N. 13).

The customary nature of para. 2 with its general binding force settles the di culty of how to proceed at a conference where not all of the participating States have ratified the Convention.50

47Article 5 of the ILC Draft 1962 provided: “[a] treaty is drawn up by a process of negotiation which may take place either through the diplomatic or some other agreed channel, or at meetings of representatives or at an international conference. In the case of treaties negotiated under the auspices of an international organ, the treaty may be drawn up either at an international conference or in some organ of the organisation itself”, YBILC 1962

II166; the provision was deleted at YBILC 1965 I 40 .

48See the statement by Waldock in the ILC, YBILC 1962 I 86, para. 40 (“more a statement of fact than of law; [the provision] indicated merely how things were actually done”).

49See the statements at the Vienna Conference by the delegations of Iraq (Yasseen), OR 1968 CoW 82, para. 27 (“progressive development”); and Argentina (Ruda), ibid. para. 37; also Waldock Report IV, YBILC 1965 II 25, para. 3 (“lex ferenda”); Jennings/Watts

N.598, n. 2 (“probably . . . the development of a new rule”); Sinclair, Vienna Convention 12 (“clearly seems to involve progressive development”); Malanczuk, Akehurst’s Modern Introduction 131 (“each conference adopts its own rules concerning voting procedures . . . there is no general rule of customary law governing voting procedure”). Contra Aust, Modern Treaty Law 85 (“formulated by the [ILC] and based on general practice in the 1960s”).

50Dupuy, Droit international public N. 251.

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D. APPRECIATION

18Article 9 constitutes one of a number of “vestibules” leading into the main chambers of the Convention (among them, the various means of expressing consent to be bound by a treaty as in Article 11, [q.v.]).51 Apart from restating a basic rule of international law in para. 1, para. 2 o ers to conference participants a useful voting tool, thereby sparing the conference lengthy preliminary procedural debates.52 New voting methods developed more recently would appear to confirm the residuary and flexible nature of Article 9, rather than implying its redundancy. The last part of para. 2, formally prescribing the voting majority required to decide on a new voting majority, also allows informal means of adoption (N. 14).53

51Statement by Amado in the ILC, YBILC 1962 I 80, para. 61.

52ILC Report 1966 II 195, para. 5; see the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 83, para. 38 (“convenient to have such a residuary rule”).

53Jennings/Watts N. 598, n. 2, speak in this context of “quasi-legislative overtones”.

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Article 10

Authentication of the text

The text of a treaty is established as authentic and definitive:

(a)by such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or

(b)failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text.

Article 10 Authentification du texte

Le texte d’un traité est arrêté comme authentique et définitif:

a)suivant la procédure établie dans ce texte ou convenue par les Etats participant

àl’élaboration du traité; ou,

b)à défaut d’une telle procédure, par la signature, la signature ad referendum ou le paraphe, par les représentants de ces Etats, du texte du traité ou de l’acte final d’une conférence dans lequel le texte est consigné.

Artikel 10 Festlegung des authentischen Textes

Der Text eines Vertrags wird als authentisch und endgültig festgelegt,

a)nach dem Verfahren, das darin vorgesehen oder von den an seiner Abfassung beteiligten Staaten vereinbart wurde, oder,

b)in Ermangelung eines solchen Verfahrens, durch Unterzeichnung, Unterzeichnung ad referendum oder Paraphierung des Vertragswortlauts oder einer den Wortlaut enthaltenden Schlussakte einer Konferenz durch die Vertreter dieser Staaten.

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ILC Draft 1966

Article 9—Authentication of the text

The text of a treaty is established as authentic and definitive:

(a)By such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or

(b)Failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text.

Materials:

Waldock Report I: Article 6.

Minutes: YBILC 1962 I 86 f, 202 f, 245 f, 269.

ILC Draft 1962: Article 7.

Waldock Report IV: Article 7.

Minutes: YBILC 1965 I 48 , 255 f.

ILC Draft 1965: Article 7.

Minutes: YBILC 1966 I/2 292, 294, 326, 340.

ILC Draft 1966: Article 9.

Minutes: OR 1968 CoW 83, 344; OR 1969 Plenary 23 f.

Vienna Conference Vote: 98:0:3

Selected Literature:

J.-M. Thouvenin, Article 10, in: Corten/Klein (eds.) 289 .

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			CONTENTS
				Paras.
A. Background ..........................................................................................				1
	1.	Introduction ......................................................................................		1
	2.	History ..............................................................................................		2
B. Interpretation of Article 10 ..............................................................				3
	1.	Scope ................................................................................................		3
	2. Authentication Agreed Upon (Para. [a]) ............................................			5
	3. Other Forms of Authentication (Para. [b]) .........................................			6
C. Context ................................................................................................				7
	1. Relationship to Other Provisions .......................................................			7
	2. Customary Basis of Article 10 ............................................................			8
D. Appreciation .........................................................................................				9
A. BACKGROUND
1. Introduction
Signature has long been the accepted method of authenticating a text, even					1
though the Harvard Draft, for instance, did not refer to authentication
as such.1 With the evolution of new functions assigned to a signature, for
example, as a means of expressing consent to be bound by the treaty (Article
12, q.v.), and of new procedures such as incorporating unsigned texts into the
Final Act of a diplomatic conference, authentication has become a distinct
part of the treaty-making process whereby the definitive text of the treaty is
established.2
2. History
Brierly took up the matter in his first Report in 1950, envisaging in particular					2
authentication by means of signature and incorporation in the Final Act of
the Conference.3 This was taken over by the ILC in 1959 and by Waldock
Report I in 1962.4 The ILC Draft 1962 attracted observations by three States,
1	AJIL 29 (1935) Supplement 466 .
2	ILC Report 1966, YBILC 1966 II 195, para. 2; Waldock Report I, YBILC 1962 II 42,
	para. 5; Aust, Modern Treaty Law 89 f.
3	YBILC 1950 II 233 (Article 6).
4	YBILC 1959 II 102 (Article 9); and YBILC 1962 II 41 (Article 7).

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all questioning the necessity of a rule on the topic.5 In 1965 and 1966 the ILC discussed the position of Article 10 within the draft, the relevance of signature, and the di erence between adoption and authentication (N. 7).6 The ILC Draft 1966 remained unchanged (as one of only four articles of that Draft)7 at the 1968/1969 Conference.8 Article 10 was adopted by 98 votes to none, with three abstentions.9

B. INTERPRETATION OF ARTICLE 10

1. Scope

3According to the opening words of Article 10, the purpose of authentication of a treaty is to establish the text of a treaty as authentic and definitive. Before States decide whether or not to express their consent—even provision- ally—to be bound by the treaty, they will wish to know what is the text of the treaty and in particular those terms which have finally been settled and are no longer open to change. Authentication is the process by which the final text is established, and consists of some act or procedure which certifies the text as correct and authentic.10 If the provisions of a treaty regulate the authentication of a treaty, they will apply as from the time of the adoption of its text (Article 24, para. 4, N. 11). The absence of an authenticated text

5Waldock Report IV, YBILC 1965 II 25 f (observations by the Governments of Japan, Sweden and the US). The ILC Draft 1962 is reproduced at YBILC 1962 II 167 (Article

7). The debate in the ILC in 1962 is at YBILC 1962 I 86 f, 202 f, 245 f, and 269.

6T he debate in 1965 is at YBILC 1965 I 48 , and 255 f, and in 1966 at YBILC 1966 I/2 292, 294, 326 and 340. The ILC Draft 1965 is reproduced in YBILC 1965 II 161 (Article 7). See the statements in the ILC, inter alia, by Amado, YBILC 1965 I 49, para. 83 (“after talks and negotiations, and after adoption of the text of a treaty, authentication was clearly superfluous before signature, which was an act of the greatest importance); and Rosenne, ibid. 49 f, para. 94 (“he was not certain what was the real di erence between the adoption

of the text of a treaty and authentication as a residuary step”). 7 See also Articles 16, 32 and 34.

8T he ILC Draft 1966 is at YBILC 1966 II 195 (Article 9). The conference debate is at OR 1968 CoW 83, 344; and OR 1969 Plenary 23 f. In 1969 in Vienna the United Republic of Tanzania unsuccessfully suggested reversing the order of paras. (a) and (b) in Article 10,

OR 1969 Plenary 23, para. 58, and 24, para. 59. 9 OR 1969 Plenary 24, para. 59.

10Waldock Report I YBILC 1962 II 41, para. 2; ILC Report 1966, YBILC 1966 II 195, para. 1; Ago in the ILC, YBILC 1965 I 52, para. 30; Aust, Modern Treaty Law 89 (“point of no return”). Article 10 does not apply to the initialling of interim drafts by negotiators, Sinclair, Vienna Convention 39.

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does not prevent States from subsequently expressing in one form or another their consent to be bound by the treaty.11

The text may be adopted in two or more language versions, but it is only the text or texts which have been made authentic that constitute the treaty. The text may itself state which language versions are to be considered authentic (Article 33, q.v.).12

Ne varietur. Once the treaty text has been authenticated, no further amend-	4
ments are possible. States are now called upon to decide whether or not to
express consent to be bound by the treaty. Any alteration would result in a
new text again requiring authentication.13
Even if authentication has few legal consequences as such, a State’s signature (N. 6)—
excluding the conditional signature ad referendum14—obliges a State to refrain from
acts which would defeat the object and purpose of a treaty (Article 18, N. 14).15
2. Authentication Agreed Upon (Para. [a])
Para. (a) provides that authentication of a treaty text may be established by	5
such procedure as may be provided for in the treaty or agreed upon by
the States participating in its drawing up.16 States may agree hereupon
formally or informally.
3. Other Forms of Authentication (Para. [b])
Failing the procedure in para. (a) (N. 5), para. (b) lists further acts which will	6
establish States’ authentication of the treaty text. Thus, States’ representatives
(Article 7, subpara. 2[c], N. 18) participating in the drawing up of the treaty
may authenticate the text of the treaty or the Final Act of a conference

11See the Right of Passage over Indian Territory (India/Portugal) Case, ICJ Reports 1960 4 ; referred to by Jennings/Watts N. 1223 at n. 4. In that case, the Court noted, ibid. 37, “the absence of any text accepted as authentic by both parties . . . [However], the validity of a treaty concluded as long ago as the last quarter of the eighteenth century . . . should not be judged upon the basis of practices and procedures which have since developed only gradually”.

12Waldock Report IV, YBILC 1965 II 26, para. 1; ILC Report 1966, YBILC 1966 II 195, para. 2; Rosenne, Developments 436.

13Waldock Report I, YBILC 1962 II 41 f, para. 3; Waldock Report IV, YBILC 1965 II 26, para. 2 (pointing out a certain flexibility in the case of bilateral treaties) Alternatively, States wishing to join the treaty may append reservations to the treaty according to Articles 19–23 (q.v.), Vedross/Simma N. 702. See also E.T. Swaine, Unsigning, Stanford LR 55 (2003) 2061 .

14Statement in the ILC by de Luna, YBILC 1962 I 204, para. 4; see Article 12, N. 15–23.

15For Combacau, Droit international public 115, the obligations under Article 18 arise also in the case of initialling.

16ILC Report 1966, YBILC 1966 II 195, para. 3 (“often . . . fixed either in the text itself or by agreement of the negotiating States”).

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incorporating the text of the treaty by signing it, possibly ad referendum, or by initialling the treaty text.17 These acts are dealt with in Article 12 (q.v., N. 15–23). Article 10 di ers from Article 12 in that here signature and initialing have a distinct “prima facie”-function. They serve merely to establish the authentication of the treaty text.18 In the context of Article 10, signature and initialling do not express consent to be bound by the treaty, except, of course, where this is otherwise established (Article 12, subpara. 1[b], N. 9–10), e.g., in bilateral treaties and previously in multilateral treaties (N. 1), in which case authentication would be covered by the wider act of the expression of the consent to be bound by the treaty.19 As a third variation, where the treaty has already been authenticated and is subsequently subject to ratification, signature will only have “minimal e ects”.20

The Final Act is a formal statement of the proceedings of a diplomatic conference, containing basic facts about the conference and appending various relevant documents, such as resolutions and interpretative statements.21 Thus, the Final Act of the 1968/1969 Vienna Conference (Final Act of the UN Conference on the Law of Treaties, q.v.,) contains a summary description of the conference proceedings in Vienna in 1968 and 1969 (including participating States and international organisations) and refers to the various declarations and resolutions adopted by the Conference and appended to it (Article 85, N. 1).22

C. CONTEXT

1. Relationship to Other Provisions

7The relationship between Article 10 and Articles 18 and 24 has been described above (N. 3–4). Authentication within an international organisation is governed by Article 5 (q.v.).23 Adoption as in Article 9 (q.v.) precedes authentication, though the two acts may overlap, if they take place simultaneously.24 Whether or not a State has voted against the adoption of the treaty is irrelevant

17Ibid.

18Ibid. para. 2.

19Waldock Report IV, YBILC 1965 II 26, para. 1 (“authentication is implied from signature or initialling”); Waldock Report I, YBILC 1962 II 42, para. 5 (“[t]he authenticating aspect of signature is . . . masked by being merged in its consent aspect”); Jennings/Watts N. 598; Aust, Modern Treaty Law 81 f.

20Waldock in the ILC, YBILC 1965 I 51, paras. 6–8; these e ects derive in particular from

Article 18 (q.v.).

21Aust, Modern Treaty Law 91 f.

22OR Documents 283 .

23ILC Report 1966, YBILC 1966 II 195, paras. 4 f.

24Statement by Waldock in the ILC, YBILC 1966 I 294, para. 86 (“that was particularly true of small international conferences”).

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in the context of Article 10; the State is still entitled to authenticate the treaty text.25 Article 33 (q.v.) concerns the interpretation of treaties authenticated in two or more languages. Finally, Article 85 (q.v.) expresses itself on the authentic texts of the Convention.

2. Customary Basis of Article 10
Even if Article 10 reflects a comparatively new concept in international law,26	8
its meanwhile declaratory nature cannot be doubted.
D. APPRECIATION
Interpretation of Article 10 reveals more complexities than immediately meets	9
the eye, for instance, the di erent functions of signature (N. 6). In modern

treaty practice, authentication constitutes a distinct step in the treaty-making procedure, thus warranting its mention in the Convention.

25Waldock, ibid.

26Sh. Rosenne, The Meaning of “Authentic Text” in Modern Treaty Law, in: R. Bernhardt et al. (eds.), Völkerrecht als Rechtsordnung. Internationale Gerichtsbarkeit. Menschenrechte, Festschrift für H. Mosler (1983) 760.

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Article 11

Means of expressing consent to be bound by a treaty

The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

Article 11 Modes d’expression du consentement à être lié par un traité

Le consentement d’un Etat à être lié par un traité peut être exprimé par la signature, l’échange d’instruments constituant un traité, la ratification, l’acceptation, l’approbation ou l’adhésion, ou par tout autre moyen convenu.

Artikel 11 Arten der Zustimmung, durch einen

Vertrag gebunden zu sein

Die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, kann durch Unterzeichnung, Austausch von Urkunden, die einen Vertrag bilden, Ratifikation, Annahme, Genehmigung oder Beitritt oder auf eine andere vereinbarte Art ausgedrückt werden.

Materials:

Minutes: OR 1968 CoW 83 , 96, 344; OR 1969 Plenary 23 , 159.

Vienna Conference Vote: 100:0:3

Selected Literature (in addition to the literature mentioned in Articles 12, 13 and 15, q.v.):

F. de Assis Maciel Tavares, Ratificação de tratados internacionais (2003); M. Fitzmaurice, Consent to be Bound—Anything New Under the Sun? Nordic JIL 74 (2005) 483 ; Id., Expression of Consent to be Bound by a Treaty as Developed in Certain Environmental Treaties, in: J. Klabbers/R. Lefeber (eds.), Essays on the Law of Treaties. A Collection of Essays in Honour of B. Vierdag (1998) 59 ; Id, Modifications to the Principles of Consent

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in Relation to Certain Treaty Obligations, ARIEL 2 (1997) 275 ; M. Fitzmaurice/D.B. Hollis, Why State Consent Still Matters: Non-State Actors, Treaties and the Changing Sources of International Law, Berkeley JIL 23 (2005) 137 ; Sh. Rosenne, “Consent” and Related Words in the Codified Law of Treaties, in: S. Bastid et al. (eds.), Mélanges o erts à Ch. Rousseau (1974) 229 ; S. Szurek, Article 11, in: Corten/Klein (eds.) 307 .

The basis of this commentary was prepared by Alison Wiebalck.

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	CONTENTS
		Paras.
A. Background ........................................................................................		1
1.	Introduction (see Articles 12–15, N. 1)
2.	History ............................................................................................	1
B. Interpretation of Article 11 ............................................................		2
1.	Scope ...............................................................................................	2
2.	Expression of Consent to be Bound .................................................	4

3.Signature (see Article 12)

4.Exchange of Instruments (see Article 13)

5.Ratification, Acceptance, Approval or Accession (see Articles 2, subpara. 1[b], 14 and 15)

6.	Other Agreed Means ........................................................................	7
C. Reservations .......................................................................................		10
D. Context ..............................................................................................		11
1.	Relationship to Other Provisions	..................................................... 11
2.	Matters Not Dealt With ..................................................................	12
3.	Customary Basis of Article 11 ..........................................................	13
E. Appreciation .......................................................................................		14

A. BACKGROUND

1. Introduction

(see N. 1 in Articles 12–15)

2. History

1 The final ILC Draft 1966 made no specific reference to agreements in simplified form, included no residuary rule in favour of ratification or signature as the means of expressing consent (Article 12, N. 2), nor stated any general rule on the means of expressing consent to be bound.1 Renewed debate in Vienna in 1968 on the question of a residuary rule in favour of either ratification or signature again ran aground (Article 12, N. 3),2 although the majority took

1ILC Report 1966, YBILC 1966 II 198, para. 7; Sinclair, Vienna Convention 329. On the history, see Fitzmaurice, Expression of Consent 62 f.

2Kearney/Dalton, AJIL 64 (1970) 508. For the debate, see OR 1968 CoW 85 , paras. 1 .

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the view that the total absence of a general rule on consent to be bound left the status of agreements in simplified form unclear. Poland and the US jointly and Belgium separately introduced two amendments both of which were referred to the Drafting Committee.3 As a result, a new Article 9bis was proposed which passed largely unchanged through the Conference in 1968 and 1969 and was adopted, as Article 11, by 100 votes to none, with three abstentions.4

B. INTERPRETATION OF ARTICLE 11
1. Scope
In most cases, the manner in which consent to be bound is expressed is stipu-	2
lated in the treaty itself, or the negotiating States agree among themselves. As
provided for by Article 11, the consent of a State to be bound by a treaty
(N. 4–6) may as a rule be expressed by such traditional means as signature
(Article 12, q.v.), the exchange of instruments constituting a treaty, (Article
13, q.v.) and ratification, acceptance, approval or accession (Articles 14
and 15, q.v.). Article 11 thus introduces Articles 12–15 and in this respect
may be seen as having a residual, even supplementary character.5 However,
Articles 12–15 do not exhaust the list of the means of expressing consent
to be bound.6 The wide scope a orded in the second part of Article 11 sub-
stantively and expressly provides that other means may also be employed if
so agreed (N. 7–9), thus opening the door for less conventional and more
simplified modes of expressing consent.7
Each of the means listed in Article 11 represents the formal expression of the	3
State’s will to be bound by the treaty. Only through the proper application of
the means agreed upon are the formal conditions of the validity of the treaty

3Poland and the US proposed a new Article 9bis on “[c]onsent to be bound by a treaty” stating: “[t]he consent of a State to be bound by a treaty may be expressed by the signature, exchange of instruments constituting a treaty, ratification, approval, acceptance or accession or by any other means if so agreed”, OR Documents 124, subpara. 104(a); see also OR 1968 CoW 83, para. 42. Belgium proposed a new Article 12bis on “[o]ther means of expressing consent to be bound by a treaty” which stated: “[i]n addition to the cases dealt with in articles 10, 11 and 12, the consent of a State to be bound by a treaty may be expressed by any other method agreed upon between the contracting States”, OR Documents 124,

subpara. 104(b); OR 1968 CoW 96, para. 33.

4 OR 1969 Plenary 25, para. 74. Article 4bis was proposed at OR 1968 CoW 344, para. 71.

5 Fitzmaurice, Expression of Consent 59.

6 Statement by the US delegate in Vienna, OR 1968 CoW 83, para. 43.

7 Fitzmaurice, Expression of Consent 63; Bolintineanu, AJIL 68 (1974) 673.

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complied with.8 As soon as consent to be bound has been established for all the negotiating States (unless otherwise agreed upon), the treaty enters into force (Article 24, paras. 1 and 2, N. 6–10).9

There is no hierarchy among the means mentioned in Article 11.10 Regardless of whether the negotiating States choose formal, simplified or a combination of formal and simplified means of expressing consent to be bound, all are equally valid juridical acts.11

2. Expression of Consent to be Bound

4The importance of the principle of free consent is emphasised in the third preambular para. (Preamble, N. 10). Consent infers consensus, i.e., the concurrence of wills with a view to performing a contractual act.12 Unless and until a State consents to be bound, a treaty cannot create rights and obligations for that State (Article 34, q.v.). Hence, consent to be bound is the pivotal act by which a State expresses its commitment to a treaty.13

The expression “consent to be bound” is essentially a synonym for signing, exchange of instruments, ratifying, accepting, approving or acceding. The phrase is put into operation in Articles 11–16 (q.v.) which spell out when consent is present or can be inferred.

5Prior to the expression of consent by a State to be bound, the relevant instrument is a text; subsequent to an expression of consent to be bound, the instrument becomes a treaty within the meaning of the Convention (compare Article 12 with Articles 9 and 10). That expression of the will of States to be bound must be duly communicated, e.g., to the other party for a bilateral treaty or via the depository (Articles 76 and 77, q.v.) to the other parties in the case of a multilateral treaty.14

6Signature, ratification, exchange of instruments, etc., do not mean that the State is bound to carry out the obligations of the treaty from that moment. Rather, the State is consenting to be bound only upon entry into force (Article 24, q.v.).15 Until such time it has only expressed, i.e., communicated, its

8	Bolintineanu, AJIL 68 (1974) 673.
9	Aust, Modern Treaty Law 113; Fitzmaurice, Expression of Consent 59 (“[t]he role of
	the expression of consent by States to be bound by a treaty is to constitute a mechanism
	by which the treaty becomes a juridical act”).

10Fitzmaurice, ibid. 60 (“international law came to reject the concept of any one means of expression of consent to be bound as being pre-eminent”).

11Bolintineanu, AJIL (1974) 673 f.

12See the statement in Vienna by the delegation of Ecuador, OR 1968 CoW 95, para. 25.

13Reuter, Introduction, N. 96 (“the principle of consent is paramount in the law of treaties”).

14See on this para. Rosenne, EPIL 4 (2000) 933.

15Nevertheless, between consent to be bound and entry into force, a treaty may be applied provisionally (Article 25, q.v.).

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consent to be bound. Once a State has consented to be bound by the treaty, it qualifies as a “contracting State” within the meaning of Article 2, subpara. 1( f ) (q.v., N. 45).

Once consent has been given, the State is obliged to refrain from acts which would defeat the object and purpose of the treaty prior to its entry into force provided such entry into force is not “unduly delayed” (Article 18, subpara. [b], N. 17).

3. Signature

(see Article 12)

4. Exchange of Instruments

(see Article 13)

5. Ratification, Acceptance, Approval and Accession

(see Articles 2, subpara. 1(b), 14 and 15)

6. Other Agreed Means
In addition to the means in Articles 12–15 (N. 2), Article 11 also refers to any	7

other means if so agreed. The notion of any other means is not explained further and leaves it to the negotiating States to choose among themselves how they wish to express consent to be bound by a treaty.16 Clearly, it is intended to embrace treaties in simplified form.17 The formulation includes consent to be bound by, for example, adoption of the treaty text (Article 9, N. 4), notification, initialling (Article 10, N. 6), notice of a specified event, or even a resolution.18 It thus serves to cover any other novel methods that State practice might devise to express consent (N. 2).19 However, States’ intentions can even be expressed orally or by any other—active, tacit or implied—conduct (e.g., performance of an obligation).20

16Fitzmaurice, Expression of Consent 65 (“the [Convention] left States absolutely free to agree to any means they might choose”).

17For Reuter, Introduction N. 95 (addendum), the wording is “quite convincing as to the informal character of the procedure”.

18See on these examples the statements in Vienna by the delegations of the US, OR 1968 CoW 83, para. 43, and Poland, ibid. 84, para. 47; Aust Modern Treaty Law 90.

19Statement by the Polish delegation, ibid. para. 48. For examples of other, novel means and discussion thereof, see Fitzmaurice, Expression of Consent 59 ; Stanford, UTLJ 20 (1970) 33.

20Reuter, Introduction N. 66 f, 89; Detter, Essays 26 f; Aust, ModernTreaty Law 113 f. See Szurek, Article 11, N. 20 (“[o]n pourrait . . . en théorie concevoir un engagement . . . exprimé oralement”).

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Such other means may lie outside the scope of the Convention, which according to Article 2, subpara. 2(a) (q.v., N. 15) is confined to written agreements, although they do not thereby lose their legal force (Article 3, N. 3).

8These techniques have no power of their own.21 Form and terminology are only relevant insofar as they clarify the negotiating States’ consent to be bound by a treaty and their intention to create—by any other agreed means—legal rights and obligations among themselves.22 Such conduct must be unequivocal and recognised as such between the parties in order to be so agreed. Thus, the words “if so agreed” serve to limit—and contain—the wide variety of means potentially encompassed by Article 11.23

9Articles 12–15 all provide that the agreement be “established”.24 By contrast, Article 11 refers solely to any other means “if so agreed” without requiring establishment of the agreement. It can be assumed that this is merely a stylistic di erence or even an oversight: Articles 12, 14 and 15 were prepared by the ILC whereas Article 11 was introduced at the Conference where no reference was made to this di erence (N. 1).

C. RESERVATIONS

10Costa Rica, Guatemala and Peru have filed reservations excluding the application of Article 11 insofar as the latter contradicts their respective constitutions.

Austria, Denmark, Finland, Germany and Sweden have raised objections to the reservations made by Guatemala and Peru. In the meantime, Guatemala has withdrawn its reservation (see Reservations and Declarations to the Convention and Objections Thereto).

21Reuter, ibid. N.93; also Weinstein, BYBIL 29 (1952) 225 (“there is . . . no magic in ratification”).

22Reuter ibid. N. 96; Fitzmaurice, Expression of Consent 63; Lauterpacht Report I, YBILC 1953 II 27.

23According to Fitzmaurice, ibid. 76, developments concerning means of consent to be bound are blurring distinctions between examples of new means of an expression of consent to be bound as provided for by Article 11 and acts analogous to law-making by international organs. Caution, however, needs to be exercised before stretching the latter part of Article 11 beyond its procedural treaty-making function: Article 11 reads (not: “any other means”, but:) “any other means if so agreed (italics added)”.

24Article 12, subpara. 1(b) (q.v., N. 9–10), Article 13, para. (b) (q.v., N. 7–10), Article 14, subpara. 1(b) (q.v., N. 9), and Article 15, para. (b) (q.v., N. 8–10).

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D. CONTEXT
1. Relationship to Other Provisions
Consent to be bound may be impeached only through the application of the		11
Convention (Article 42, N. 8–9). For instance, in expressing its consent to
be bound by a treaty, violation of a negotiating State’s internal law is irrel-
evant except as provided for in Article 46 (q.v.). Article 7 determines who is
considered as representing a State for the purpose of expressing the consent
of the State to be bound by the treaty as set out in Articles 11–15.
2. Matters Not Dealt With
Article 11 a ords no details as to the scope of “any other means” (N. 7).		12
3. Customary Basis of Article 11
In its role as an introductory description of procedure (N. 2), Article 11 has		13
no normative (and a fortiori no customary) basis. Instead it must rely upon
the separate elements mentioned in the article. To the extent that the last part
of Article 11 substantively adduces “other means” of expressing consent to
be bound by a treaty, it may be assumed that this rule corresponds with, and
identifies, one aspect of the freedom of consent which States enjoy by virtue
of their sovereignty in international law.25 Given that no objection was raised
at the Conference in Vienna, the last part of Article 11 appears to reflect a
rule of customary international law.
E. APPRECIATION
Aust has described Article 11 as a good example of how the rules of the		14
Convention provide a certain framework, albeit one which is flexible enough
to accommodate future developments in State practice (and overcome exist-

ing di culties, e.g., long delays resulting from the formalised procedures of ratification).26 That same flexibility helps facilitate wider participation in the treaty-making activities of States. Tailor-made simplified treaty-making procedures foster international cooperation and encourage States to enter

25Fitzmaurice, Expression of Consent 59 (“this freedom is rooted in the sovereignty of States”).

26Aust, Modern Treaty Law 113. See also the statement in Vienna by Vallat of the UK delegation, OR 1968 CoW 84, para. 52 (“a useful link between the series of articles on the modes of expressing consent and the articles immediately preceding them”).

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into binding international agreements.27 In the final analysis the reach of Article 11—in particular consent by other means—will depend on and be determined by State practice.

27 Lachs, Law of Treaties 102 f, 111.

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Article 12

Consent to be bound by a treaty expressed by signature

1.The consent of a State to be bound by a treaty is expressed by the signature of its representative when:

(a)the treaty provides that signature shall have that e ect;

(b)it is otherwise established that the negotiating States were agreed that signature should have that e ect; or

(c)the intention of the State to give that e ect to the signature appears from the full powers of its representative or was expressed during the negotiation.

2.For the purposes of paragraph 1:

(a)the initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed;

(b)the signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty.

Article 12 Expression, par la signature, du consentement à être lié par un traité

1.Le consentement d’un Etat à être lié par un traité s’exprime par la signature du représentant de cet Etat:

a)lorsque le traité prévoit que la signature aura cet e et;

b)lorsqu’il est par ailleurs établi que les Etats ayant participé à la négociation étaient convenus que la signature aurait cet e et; ou

c)lorsque l’intention de l’Etat de donner cet e et à la signature ressort des pleins pouvoirs de son représentant ou a été exprimée au cours de la négociation.

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2.Aux fins du paragraphe 1:

a)le paraphe d’un texte vaut signature du traité lorsqu’il est établi que les Etats ayant participé à la négociation en étaient ainsi convenus;

b)la signature ad referendum d’un traité par le représentant d’un Etat, si elle est confirmée par ce dernier, vaut signature définitive du traité.

Artikel 12 Zustimmung, durch einen Vertrag gebunden zu sein, durch Unterzeichnung

1.Die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, wird durch Unterzeichnung seitens seines Vertreters ausgedrückt,

a)wenn der Vertrag vorsieht, dass der Unterzeichnung diese Wirkung zukommen soll;

b)wenn anderweitig feststeht, dass die Verhandlungsstaaten der Unterzeichnung einvernehmlich diese Wirkung beilegen wollten; oder

c)wenn die Absicht des Staates, der Unterzeichnung diese Wirkung beizulegen, aus der Vollmacht seines Vertreters hervorgeht oder während der Verhandlung zum Ausdruck gebracht wurde.

2.Im Sinne des Absatzes 1

a)gilt die Paraphierung des Textes als Unterzeichnung des Vertrags, wenn feststeht, dass die Verhandlungsstaaten dies vereinbart haben;

b)gilt die Unterzeichnung eines Vertrags ad referendum durch den Vertreter eines Staates als unbedingte Vertragsunterzeichnung, wenn sie von dem Staat bestätigt wird.

ILC Draft 1966

Article 10—Consent to be bound by a treaty expressed by signature

1.The consent of a state to be bound by a treaty is expressed by the signature of its representative when:

(a)the treaty provides that signature shall have that e ect;

(b)it is otherwise established that the negotiating states were agreed that signature should have that e ect;

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(c)the intention of the state in question to give that e ect to the signature appears from the full powers of its representative or was expressed during the negotiation.

2.For the purposes of paragraph 1:

(a)the initialling of a text constitutes a signature of the treaty when it is established that the negotiating states so agreed;

(b)the signature ad referendum of a treaty by a representative, if confirmed by his state, constitutes a full signature of the treaty.

Materials:

WALDOCK Report I: Articles 8 f.

Minutes: YBILC 1962 I 87 , 204 f, 255, 270.

ILC Draft 1962: Articles 10 f.

WALDOCK Report IV: Articles 10 f.

Minutes: YBILC 1965 I 48 , 256 , 281.

ILC Draft 1965: Article 10.

Minutes: YBILC 1966 I/2 292, 326, 340.

ILC Draft 1966: Article 10.

Minutes: OR 1968 CoW 85 , 344 f; OR 1969 Plenary 25 f.

Vienna Conference Vote: 95:1:5

Selected Literature (in addition to the literature mentioned in Article 11, q.v.):

A. Bolintineanu, Expression of Consent to be Bound by a Treaty in the Light of the 1969 Vienna Convention, AJIL 68 (1974) 672 ; M.A. Fitzmaurice, Modifications to the Principles of Consent in Relation to Certain Treaty Obligations, Austrian RIEL 2 (1997) 275; M. Frankowska, De la prétendue présomption en faveur de la ratification, RGDIP 73 (1969) 78 ; Sh. Rosenne, Treaties, Conclusion and Entry into Force, EPIL 4 (2000) 932; E. Swaine, Unsigning, Stanford LR 55 (2003) 2061 ; C. van Assche, Article 12, in: Corten/Klein (eds.) 343 ; J. Viret, La signature des traités multilatéraux, Annales de la Faculté de droit et de science politique (Université de Clermont I) 15 (1978) 433 .

The basis of this commentary was prepared by Alison Wiebalck.

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	CONTENTS
		Paras.
A. Background ........................................................................................		1
1.	Introduction ....................................................................................	1
2.	History ............................................................................................	2
B. Interpretation of Article 12 ............................................................		4
1.	Scope ..............................................................................................	4
2.	Consent to be Bound By Signature (Para. 1) ....................................	7
	a) Introduction ...............................................................................	7
	b) Prescribed by the Treaty (Subpara. 1[a]) .....................................	8
	c) Agreement Among Negotiating States (Subpara. 1[b]) ...............	9
	d) Intention Transpiring From Full Powers or Expressed
	During Negotiation (Subpara. 1[c]) ...........................................	11
3.	Initialling and Signature ad referendum (Para. 2) ..............................	15
	a) Introduction ..............................................................................	15
	b) Initialling (Subpara. 2 [a]) ..........................................................	16
	c) Signature ad referendum (Subpara. 2 [b]) ....................................	20
C. Reservations .......................................................................................		24
D. Context ..............................................................................................		25
1.	Relationship to Other Provisions .....................................................	25
2.	Matters Not Dealt With ..................................................................	26
3.	Customary Basis of Article 12 ..........................................................	27
E. Appreciation .......................................................................................		28

A. BACKGROUND

1. Introduction

1 The classical process of concluding treaties was by means of signature followed by ratification.1 Treaty-making authority was vested in the Sovereign, the plenipotentiary was regarded as the Sovereign’s personal agent, and signature by that agent in possession of full powers meant acceptance of a treaty which the Sovereign was bound to ratify.2 However, rulers became wary of being obliged to ratify treaties signed by plenipotentiaries who had perhaps

1 Detter, Essays 18 f; the observation by Rosenne in the ILC, YBILC 1962 I 91, 48.

2Provided the plenipotentiary had not exceeded his authority, Harvard Draft, AJIL 29 (1935) Supplement 770. See also J.M. Jones, The Retroactive E ect of the Ratification of Treaties, AJIL 29 (1935) 65; de Luna in the ILC, YBILC 1962 I 97, para. 22.

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interpreted their powers beyond what might have been intended. To over-
come this, signature was a xed on the condition of future approval, and the
consent of the Sovereign to be bound was then sealed by ratification.3 In the
19th century the power to ratify treaties shifted to parliament which held
the discretionary power of final approval of the treaty. Ratification as the means
of binding the State was the general presumption;4 signature an exception
operative when explicitly provided for in the treaty only.5 By the late 19th
century, under pressure from the need for more international co-operation
and given the exponential number of treaties on ever more diverse topics,6
ratification—that “respectable institution of the previous century”7—became
increasingly awkward compared with other, simpler methods of expressing
consent. Power too began again to shift, this time from parliament to the
executive. In 1951 the Court held that even signature alone established “a
provisional status” between the signatories.8
McNair and the Harvard Draft took the view that ratification was required unless there
was a clearly expressed indication to the contrary.9 Fitzmaurice, on the other hand,
believed that there was no inherent necessity for ratification.10 Blix concluded that
treaties which failed to indicate—either expressly or impliedly—the parties’ intentions
as to the mode of entry into force, almost always entered into force by signature.11

2.	History
The topic occupied the ILC for many years. It was dealt with by Lauter-			2
pacht Report I in 195312 (proposing a residuary rule in favour of ratification)
and Fitzmaurice Report I in 1956 (proposing a residuary rule in favour of
signature).13 In 1962 Waldock Report I covered procedural issues such as
the time and place of signature or initialling, and the status of initialling and
signature ad referendum in Article 8;14 and the di erent legal e ects of signature,
including provision for cases where a treaty was not subject to ratification in
3	Detter, Essays 19; Malanczuk, Akehurst’s Modern Introduction 132.
4	Bolintineanu, AJIL 68 (1974) 674 f.
5	J.M. Jones, Full Powers and Ratification (1946) 12 ; Id., The Retroactive E ect of the
	Ratification of Treaties, AJIL 29 (1935) 51 .
6	Statement in Vienna by the Polish delegation (Nahlik), OR 1968 CoW 86, para. 13.
7	Statement in Vienna by the Brazilian delegation, ibid., 88 para. 35.

8Reservations to Genocide Advisory Opinion, ICJ Reports 1951 28. On the developments, see Bolintineanu, AJIL 68 (1974) 675; H. Blix, The Requirement of Ratification, BYBIL

30 (1953) 352 , 359 f; Frankowska, RGDIP 73 (1969) 78.

9 Law of Treaties 133; and AJIL 29 (1935) Supplement 763 , respectively.

10Sir G. Fitzmaurice, Do Treaties need Ratification? BYBIL 15 (1934) 129.

11H. Blix, The Requirement of Ratification, BYBIL 30 (1953) 380.

12YBILC 1953 II 109 f (Article 5).

13YBILC 1956 II 113 f (Articles 28 ).

14YBILC 1962 II 44 .

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Article 9.15 In the same year the ILC discussed the articles, twice referring them to the Drafting Committee—an indication of the complexity of the matter.16 The ILC Draft 1962 covered signature in three separate articles:17 Article 7 on authentication (which eventually became today’s Article 10, q.v.), Article 10 on “mere” signature, initialling, and signature ad referendum, and Article 11 on the legal e ects of a full signature including a residuary rule in favour of ratification. As this method was complicated and involved a certain amount of repetition, the ILC decided to delete parts of the 1965 Article 10, incorporating the remainder in Article 11 which became Article 10 of the final 1966 ILC Draft and Article 12 as it is today.18

3In Vienna the question of a residuary rule in favour of signature or of ratification was again raised in a series of amendments. One proposal by States in favour of signature as a residuary rule was withdrawn,19 the counter-proposal in favour of ratification as a residuary rule was rejected after lengthy debates in a roll call vote by 53 to 25 votes with 16 abstentions.20 Various other amendments were either rejected or referred to the Drafting Committee.21 In Plenary, the Netherlands unsuccessfully requested a separate vote to delete the words “or was expressed during the negotiation” at the end of subpara. 1(c) (N. 11–14).22 Finally, Article 10 (now Article 12) was adopted—virtu-

15Ibid. 46 f.

16See, for instance, the statements in the ILC by its Chairman Pal, YBILC 1962 I 88, para. 82; 99, para. 50; 100, para. 64; 204, para. 6; and 205, para. 24; and by Bartos, ibid. 93, para. 70. For the text, see ibid. 255, paras. 4 and 6; 270, paras. 36 and 48 .

17ILC Report 1962, YBILC 1962 II 169 . Governments—their submissions are summarised in Waldock Report IV, YBILC 1965 II 34 —were sharply divided on the direction which the residuary rule should take, ibid. 38, para. 1.

18ILC Report 1966, YBILC 1966 II 195 , and ibid., 196, paras. 1 f. The debate is reproduced at YBILC 1965 I 48 , 256 and 281; and YBILC 1966 I/2 292, 326 and 340.

19By Sweden, then Czechoslovakia and Poland, OR Documents 125, subpara. 112(i).

20By Bolivia, Chile, Colombia, Guatemala, Honduras, Mexico, Peru, Uruguay and Venezuela, ibid., subpara. 112(ii)(b); OR 1968 CoW 94 f, para. 14. The amendment by Switzerland proposing to add a new article 11bis to the residuary rule in favour of ratification, OR Documents 125, subpara. 112(iii), was equally rejected.

21E.g., by Bolivia, Chile, Colombia, Dominican Republic, Guatemala, Honduras, Mexico, Peru and Venezuela, OR Documents 126, subpara. 119(i )(c), aiming at including a clear and objective definition, by reference to internal law, of treaties for which ratification would not be required; see the statement by the Chilean delegation in Vienna, OR 1968 CoW 92, para. 40; rejected by 60 to ten votes, with 16 abstentions, ibid. 93, para. 61. The Spanish amendment, OR Documents 126, subpara. 119(i), proposing, inter alia, to substitute in subpara. 1(b) (N. 9) the words “it is otherwise established” with “it is clear from the circumstances that the negotiating States were agreed”, was referred to the Drafting Committee.

22See the statement by the Dutch delegation, OR 1969 Plenary 25, para. 75; the amendment was rejected by 54 votes to 26, with 19 abstentions, ibid. 26, para. 82. The Swiss delegation requested a separate vote on subpara. 2(a), ibid. 25, para. 77; rejected by 74 votes to 15, with twelve abstentions, ibid. 26, para. 84.

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ally unchanged from the ILC Draft 1966—by 95 votes to one, with five abstentions.23

Together with Article 12 of the ILC Draft 1966 (today’s Article 14, q.v.), Article 10 (today’s Article 12) left the question of ratification open as a matter of the intention of the negotiating States without recourse to a residuary rule.24

B. INTERPRETATION OF ARTICLE 12
1. Scope
Article 12 concerns the situation where the consent of a State to be bound	4
by a treaty is expressed by the signature of its representative (opening
sentence of para. 1). The expression “consent to be bound by a treaty” is dis-
cussed in Article 11 (q.v., N. 4–6); the notion of a representative is explained
in Article 7 (q.v., N. 4).
The Convention does not define the term signature. It refers to the person’s	5
name (not initials) or mark written in his or her own handwriting. Signature
of a treaty by a State’s representative is an act by which the State expresses
its interest in the treaty and its intention to become a party. Signature is not
a prerequisite for an agreement to constitute a treaty within the meaning of
Article 2, subpara. 1(a) (q.v., N. 15–17), unless the treaty so provides.25
Particularly in view of the proliferation of less formal treaty-making procedures, States
may in practice attach considerable importance to signature. For instance, plenipoten-
tiaries are required to submit the text ne varietur (not to be altered) for approval before
signature may be authorised.26
Signature fulfils two functions:27 (i) where signature is subject to ratifica-	6
tion, acceptance or approval, it does not establish consent to be bound; it
simply qualifies the signatory State to proceed to ratification. Here, signature
demonstrates the expression of a State’s genuine, albeit provisional, will to
be bound (signature subject to ratification). This function is dealt with in
Article 14 (q.v.); (ii) in contradistinction, the purpose of definitive signature
is to indicate the final willingness of the State to be bound by the treaty. As its

23Ibid. 26, para. 84.

24ILC Report 1966, ibid. 198, para. 7. Malanczuk, Akehurst’s Modern Introduction 133 (“‘neutral attitude’”); Kearney/Dalton, AJIL 64 (1970) 508.

25Aust, Modern Treaty Law 24 f, with examples of unsigned agreements enjoying treaty status.

26Full powers to sign are generally issued at the end of negotiation, not before; see Holloway, Modern Trends 45.

27Note also the function of authentication (simple signature), dealt with in Article 10 (q.v., N. 6).

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title—consent to be bound by a treaty expressed by signature—indicates, Article 12 deals exclusively with this second function.

It is unusual for multilateral (and important bilateral) treaties to enter into force upon signature. Once the negotiations are over and the treaty text agreed upon, such treaties are concluded by signature subject to ratification or some other agreed means of confirmation, unless the treaty provides otherwise. Conversely, for many bilateral treaties, signature is su cient to express the consent of the State to be bound provided that no further parliamentary approval or new legislation is required. These treaties are brought into force immediately or on some later fixed date as agreed upon at the conclusion of the negotiations.28

2. Consent to be Bound By Signature (Para. 1)

a) Introduction

7Subparas. 1(a) and 1(b) deal with cases where a State’s definitive consent to be bound by means of a signature has been recognised one way or another by an agreement between the negotiating States (N. 8–10). Subpara. 1(c) provides for unilateral means of consenting to be bound by signature (N. 11–14).

The conjunction “or” at the end of subpara. 1(b) makes it clear that para. 1 does not call for the fulfilment of all conditions laid down in subparas. (a)–(c).29 In particular, subpara. 1(b) is not a residual rule in relation to subpara. 1(c).30

b) Prescribed by the Treaty (Subpara. 1[a])

8Of the various means of establishing consent to be bound by a treaty, subpara. 1(a) provides at the outset that the treaty may provide that signature shall have that e ect. The treaty may do so either expressly—this intention is normally reflected in the entry-into-force clause which may provide that the treaty “shall enter into force on the date of signature”31—or implicitly.32 In neither case is there any call for ratification of such a treaty.

c) Agreement Among Negotiating States (Subpara. 1[b])

9The consent of a State to be bound by a treaty may furthermore be expressed by the signature of its representative if it is otherwise established (i.e., other than as provided for by the treaty itself, N. 8) that the negotiating States were agreed that signature should have that e ect. “Negotiating States” are defined in Article 2, subpara. 1(e) as States “which took part in the drawing up and adoption of the text of the treaty” (q.v., N. 40–42).

28See on this Aust, Modern Treaty Law 96 f, 437 f.

29Yasseen as Chairman of the Drafting Committee in Vienna, ibid. 23, para. 57.

30Statement by Ago in the ILC, YBILC 1965 I 257, para. 14.

31For examples, see Blix, Treaty Maker’s Handbook 51 f.

32Aust, Modern Treaty Law 97.

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Subpara. 1(b) deals with the situation in treaty practice where there is clear agreement, usually by correspondence and before the negotiations begin, that representatives would have the authority to give their signature full e ect.33

The agreement in subpara. 1(b) may be reached—outside the treaty 10 (N. 9)—in writing, but also orally and even by tacitly implied conduct. Whatever form of communication is adopted, it must be unequivocal.34 Furthermore, Article 12 introduces an objective element in that it requires that

the agreement be established.35 Such establishment implies that, whenever a State claims to have reached agreement by other means, it will be called upon to demonstrate that another State or other States have also agreed that signature should have the e ect of expressing consent to be bound by a treaty.

d) Intention Transpiring From Full Powers or Expressed During Negotiation (Subpara. 1[c])

The consent of a State to be bound by a treaty is expressed by the signature 11 of its representative if that intention appears from the full powers of its representative (Article 7, q.v.).36 In the context of Article 12, full power refer

to the authority invested in the representative to express the consent of a State to be bound by a treaty by signature alone.

The second part of subpara. 1(c) assumes that neither the treaty itself nor 12 the representative’s full powers alone will provide for a State’s consent to be bound by signature. It also envisages that the intention of the State to give

(in particular binding legal) e ect to the signature may also be expressed during the negotiation. The intention expressed during the negotiations refers to the legal force of the signature to bind the State, not to consent to be bound per se.

At the Conference, it was feared that a statement made during the negotiation could be tantamount to an expression of consent to be bound. This fear appears unfounded. Subpara. 1(c) refers to the intention to give that e ect to the signature. Such a statement would not be the equivalent of an expression of consent to be bound.37

33Statement by Waldock in the ILC, YBILC 1965 I 257, para. 20.

34ILC Report 1966, YBILC 1966 II 196, para. 3 (“simply a question of demonstrating the intention from the evidence”); see Bolintineanu, AJIL 68 (1974) 683 (“[w]hat is essential in determining . . . consent to be bound . . . are not the circumstances of its conclusion but the existence of an agreement to this e ect between the negotiating states, irrespective of whether it has been embodied in the text of the treaty”).

35See the statements in Vienna by the delegations of Venezuela, OR 1968 CoW 92, para. 43 (“the subjective element of establishing the agreement of the negotiating States . . . was very hard to evaluate”); and South Africa, ibid. 93, para. 53.

36See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1969 Plenary 26, para. 81.

37See the statement in Vienna by the Dutch delegation, ibid. 92 f, para. 50; Bolintineanu, AJIL 68 (1974) 685.

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13A State can pronounce unilaterally that it intends to be bound by signature. This is indicated by reference to the intention of the State as opposed to “the negotiating States were agreed” (as in subpara. 1[b], N. 9–10).38

Other States are free to express their consent to be bound by other means, e.g., subject to ratification.39 This is particularly important in multilateral treaty-making where, depending on constitutional requirements, ratification is essential for some States but not necessarily for others. Subpara. 1(c) (second part) accommodates States which might be ready and able to express their consent to be bound by signature without ratification and States for which ratification procedures are essential.40 Such cases are common and were not anticipated to give rise to any di culties.41

14The second part of subpara. 1(c) does not refer to just any statement made by a representative, only to the intention of the State to give that e ect to the signature expressed during the negotiation.42 The intention to be bound does not have to have been either formally manifested43 or even expressly stated.44 To have any meaning, however, that expression of intent would have to be open; such intent would have to be made in statements of the representative which, normally, would be recorded. This would enable other States to take note of and rely upon this statement and the intention expressed therein.

3. Initialling and Signature ad referendum (Para. 2)

a) Introduction

15Para. 2 provides for the expression of the definitive consent of a State to be bound by equivalent alternative acts to signature, in particular initialling and signature ad referendum. As a rule, neither of these terms express consent to be bound (though they may establish the authentication of a treaty, Article 10, para. [b] [q.v., N. 6]). Exceptionally, however, according to para. 2 they may constitute a signature expressing a State’s consent to be bound if it is

38“The point was one on which Governments had insisted strongly”, Waldock in the ILC, YBILC 1965 I 257, para. 21.

39Statement by Ago in the ILC, ibid. para. 14.

40ILC Report 1966, YBILC 1966 II 196, para. 3.

41See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1969 Plenary 26, para. 81.

42Statements in Vienna by Yasseen as Chairman of the Drafting Committee, ibid. 25, para. 78; the Dutch delegation, ibid. para. 75; and in the ILC by Amado, YBILC 1965 I 257, para. 16.

43As suggested by the Italian delegation in Vienna, OR 1968 CoW 91, para. 37. The proposal was referred to the Drafting Committee, ibid. 93, para. 63 (not accepted, ibid. 345, para. 74).

44As proposed by the Belgium delegation, ibid. 91, para. 38; referred to the Drafting Committee, ibid. 93, para. 63 (not accepted, ibid. 345, para. 74).

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established that the negotiating States where so agreed (subpara. 2[a],

N.16–19), or if confirmed by the State (subpara. 2[b], N. 20–23).45

b)Initialling (Subpara. 2 [a])

Initialling, i.e., the representative writes down the first letters of his or her	16
first and second names, regularly indicates agreement to the text, without
binding a State to its provisions (“prima facie”-initialling, Article 10, para.
[b], N. 6). However, initialling may also amount to a means of expressing
consent to be bound by the treaty. Indeed, in practice it is not infrequent for
a Head of State, Prime Minister or Foreign Minister to initial a text with the
intention that their initials are the equivalent of a full signature, especially
in treaties in simplified form such as agreed minutes.46
This last mentioned case is covered by subpara. 2(a) which provides that the	17
initialling of a text constitutes a signature of the treaty when it is estab-
lished that the negotiating States so agreed.
Whether or not initialling amounts to an expression of consent to be bound	18
depends on the intentions of the negotiating States, and in particular their
agreement when it is established (N. 10). The use of the initials as the
equivalent of full signature must be clearly indicated and understood and
accepted by the other States as such.47
If no such agreement is established, prima facie initialling is an act of authen-	19
tication only (Article 10, q.v.). In such a case, it is not possible to transform

initialling into full signature by (post-initialling-) confirmation. A signature subsequent to initialling has no retroactive e ect; the State concerned becomes a signatory only later on, i.e., from the date of the subsequent act of signature.

This is confi rmed by Article 8, subpara. 3(b) of Waldock Report I which stated: “[w]hen initialling is followed by the subsequent signature of the treaty, the date of the

45In the ILC, it was doubted whether the matter merited separate provisions; see the statements, e.g., by Briggs, YBILC 1965 I 51, para. 16; and by Ruda who suggested two separate articles, ibid. 258, para. 24.

46See the statement in the ILC by Tunkin, YBILC 1962 I 270, para. 38; contra Yasseen who “did not believe there was any such rule in positive international law”, YBILC 1965 I 54, para. 59. See the ILC Report 1966, YBILC 1966 II 196, para. 4 (“[the ILC] felt that it would make the rule unduly complicated to draw a distinction between initialling by a high minister of State and by other representatives, and considered that the question whether initialling amounts to an expression of consent to be bound by the treaty should be regarded simply as a question of the intentions of the negotiating States”).

47ILC Report 1966, ibid.; Waldock Report IV, YBILC 1965 II 35, para. 5; Holloway, Modern Trends 35 f. Blix refers to the 1954 Memorandum of Understanding between the Governments of Italy, UK, USA and the former Yugoslavia when “initialling was expressly given the most important binding e ects”, Treaty Making Power 73, n. 8.

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signature, not that of the initialling, shall be the date upon which the State concerned shall become a signatory of the treaty”.

In the case of a multilateral treaty drawn up by an international conference, the text of the treaty is incorporated in the Final Act of the conference and then signed by all the participants. This does not equal signature of the treaty nor consent to be bound: signature of a Final Act is not definitive but equivalent to initialling.48

c) Signature ad referendum (Subpara. 2 [b])

20Signature ad referendum has merely the e ect of authenticating the text of the treaty.49 It is employed during the negotiating process to indicate that the agreement is agreed upon provisionally and subject to confirmation, in particular pending final approval by a governmental authority.50 It is indicated by the signature of the representative followed immediately by the words “ad referendum” or words to that e ect.51

21Thus, the signature ad referendum of a treaty by a representative, if confirmed by his or her State, constitutes a full signature of the treaty. If so confirmed, the original signature will constitute the final act by which a State establishes its consent to be bound by the treaty.

22The subsequent confirmation of the signature has no “constitutive” e ect (as opposed to the subsequent signature following initialling, N. 19), it renders the State retroactively a full signatory as of the original date of the signature ad referendum. However, States are always free to agree otherwise.52

This is confirmed by Article 10, subpara. 2(c) of the ILC Draft 1962 which provided: “[s]ignature ad referendum, when confirmed, shall have the same e ect as if it had been a full signature made on the date when, and at the place where, the signature ad referendum was a xed to the treaty”.53

23Unlike initialling (N. 18), a signature ad referendum cannot be agreed upon between the negotiating States to constitute a full signature. The necessary act of confirmation is a unilateral act of State: the signature becoming definitive only once it has been confirmed by the competent State organ. Hence, confirmation of the signature ad referendum constituting consent to be bound, transforms the document into an international agreement.54

48Holloway, Modern Trends 37.

49Statements in the ILC by Waldock, YBILC 1965 I 51, para. 9; and Tunkin, ibid. 53, para. 41.

50ILC Report 1966, YBILC 1966 II 196, para. 5.

51Aust, Modern Treaty Law 98.

52ILC Report 1966, YBILC 1966 II 196 f, para. 5.

53ILC Report 1962, YBILC 1962 II 170; see also Article. 8 subpara. 2(c) of Waldock Report I, ibid. 45, para. 3; the statement by Waldock in the ILC, YBILC 1965 I 51, para. 9.

54Holloway, Modern Trends 45.

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As the Waldock Report IV 1965 stated, “[i]n the case of a treaty which is expressed to come into force on signature, there does not appear to be any time-limit within which a signature ad referendum may be confirmed. Consequently, signature ad referendum may, as it is, be used to serve one purpose of ratification—delay to allow the completion of constitutional procedures”.55

C. RESERVATIONS

Costa Rica, Guatemala and Peru have filed reservations excluding the 24 application of Article 12 in so far as the latter contradicts their respective constitutions. Austria, Denmark, Finland, Germany and Sweden have raised objections to the reservations made by Guatemala and Peru. The Netherlands

has objected to the Peruvian reservation. In reply to the Austrian objection, Peru has considered that that communication is without a legal e ect as it has “not [been] submitted in a timely manner”. In the meantime, Guatemala has withdrawn its reservation (see Reservations and Declarations to the Convention and Objections Thereto).

D. CONTEXT

1. Relationship to Other Provisions

The following relations with other provisions may be noted:

25

Article 10, para. (b) (q.v., N. 15–23) relates to the role played by (and explains the meanings of) signature, signature ad referendum and initialling in respect of establishing a text as authentic, whereas Article 12 deals with the di ering legal e ects of signature establishing consent to be bound by a treaty (N. 15–23).

Article 11 (q.v.) reiterates the means by which States may express consent to be bound by a treaty.

Article 12 confirms and complements Article 11 (q.v.) which mentions signature as one of the means of expressing consent to be bound by a treaty.

Where a State has expressed its consent to be bound as provided by the various means mentioned in Article 12, then, pending the entry into force of the treaty, a State is obliged to refrain from acts which would defeat the object and purpose of the treaty unless such entry into force is unduly delayed (Article 18, q.v.).

As provided by Article 19 (q.v.), when signing a treaty a State may formulate a reservation. Although Article 19 does not specify which type of signature it is referring to, the context employed, namely “when signing, ratifying, accepting . . .” suggests full or definitive signature.

55 Waldock Report IV, YBILC 1965 II 35, para. 4.

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2. Matters Not Dealt With

26Only the travaux préparatoires, not Article 12 itself, make clear the e ects in time of initialling and signature ad referendum (N. 19 and 22, respectively).

3. Customary Basis of Article 12

27The legal significance of signature has experienced shifts in its relationship to consent to be bound (N. 1) but appears firmly rooted in international customary law. Article 12, subpara. 1(a) reflects an established rule of international law. Subpara. 1(b) most likely codified existing law at the Conference in 1968 and 1969, though it contained an element of progressive development by requiring an agreement (N. 10).56 Similarly, subpara. 1(c) and para. 2 contained some innovatory details.57 On the whole, Article 12 would appear to have developed into customary law.

E. APPRECIATION

28The legal e ects of a full signature are one of the essential questions of the law of treaties.58 Article 12 reflects the trend of new, accelerated and simplified procedures of expressing consent in response to the requirements of rapidly developing international co-operation.59 The Convention leaves States free to choose between signature and ratification.60 In practical terms this reminds those who draft treaties of the need to specify whether consent to be bound is to be expressed by signature or ratification.61

56Bolintineanu, AJIL 68 (1974) 684.

57Ibid. 685.

58See the statements in the ILC by Amado, YBILC 1962 I 98, para. 36; and in YBILC 1965 I 49, para. 83. Waldock Report IV referred to “the ambiguities . . . surrounding the act of signature”, YBILC 1965 II 35, para. 4.

59Bolintineanu, AJIL 68 (1974) 674.

60See Bindschedler of the Swiss delegation in Vienna, OR 1968 CoW 85, para. 6 (“cases where the conditions under which a State consented to be bound by a treaty could not be established, were very rare”).

61See the statement in Vienna by Sir Francis Vallat of the UK delegation, OR 1968 CoW 86 f, para. 19.

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Article 13

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

The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when:

(a)the instruments provide that their exchange shall have that e ect; or

(b)it is otherwise established that those States were agreed that the exchange of instruments should have that e ect.

Article 13 Expression, par l’échange d’instruments constituant un traité, du consentement à être lié par un traité

Le consentement des Etats à être liés par un traité constitué par les instruments échangés entre eux s’exprime par cet échange:

a)lorsque les instruments prévoient que leur échange aura cet e et; ou

b)lorsqu’il est par ailleurs établi que ces Etats étaient convenus que l’échange des instruments aurait cet e et.

Artikel 13 Zustimmung, durch einen Vertrag gebunden zu sein, durch Austausch der einen Vertrag bildenden Urkunden

Die Zustimmung von Staaten, durch einen Vertrag gebunden zu sein, der durch zwischen ihnen ausgetauschte Urkunden begründet wird, findet in diesem Austausch ihren Ausdruck,

a)wenn die Urkunden vorsehen, dass ihrem Austausch diese Wirkung zukommen soll, oder

b)wenn anderweitig feststeht, dass diese Staaten dem Austausch der Urkunden einvernehmlich diese Wirkung beilegen wollten.

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Materials:

Minutes: OR 1968 CoW 93 f, 345 ; OR 1969 Plenary 23 , 28, 159.

Vienna Conference Vote: 91:0:0

Selected Literature (in addition to the literature mentioned in Articles 11 and 12, q.v.):

F.S. Hamzeh, Agreements in Simplified Form—Modern Perspective, BYBIL 43 (1968/69) 179 ; R. Kolb, Note: Is an Obligation assumed by Two Di erent States in Two Di erent Treaties Binding Between Them? NILR 51 (2004) 185 ; C. van Assche, Article 13, in: Corten/Klein (eds.) 399 ; J. Wilmanns, Note, EPIL 3 (1997) 694 f; Id., Note Verbale, ibid. 695.

The basis of this commentary was prepared by Alison Wiebalck.

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	CONTENTS
		Paras.
A. Background ........................................................................................		1
1.	Introduction ....................................................................................	1
2.	History ............................................................................................	2
B. Interpretation of Article 13 ............................................................		3
1.	Scope of Article 13 ...........................................................................	3
2.	Exchange of Instruments ..................................................................	5
3.	Paras. (a) and (b) ..............................................................................	9
C. Context ..............................................................................................		11
1.	Relationship to Other Provisions ......................................................	11
2.	Customary Basis of Article 13 ..........................................................	12
D. Appreciation .......................................................................................		13

A. BACKGROUND
1. Introduction
The method of concluding international agreements by means of an exchange	1

of instruments is not new.1 This manner of proceeding, already common practice in the League of Nations,2 has increased considerably since and is employed for a wide range of subjects.3 The exchange of notes is often resorted to as the means of concluding intergovernmental and interdepartmental agreements in addition to, or as a substitute for, the more traditional form of treaties signed by or on behalf of Heads of States.4 The practice arose in

1 See J.L. Weinstein, Exchanges of Notes, BYBIL 29 (1952) 205 .

2 M. Brandon, Analysis of the Terms “Treaty” and “International Agreement”, AJIL 47 (1953) 60 at n. 39. In the Customs Régime between Germany and Austria Advisory Opinion, the Court declared that “from the standpoint of the obligatory character of international engagements, it is well known that such engagements may be taken in the form of treaties, conventions, declarations, agreements, protocols or exchange of notes”, PCIJ (1931) Series A/B no. 41 47.

3Aust, Modern Treaty Law 102. For instance, in the years 1920–1946, 24% of instruments published in the LNTS, and between 1946–1951 30% of treaties registered with the UN, were exchanges of notes, H. Blix, The Requirement of Ratification, BYBIL 30 (1953) 362.

For further statistics, see van Assche, Article 13, N. 6.

4J.L. Weinstein, Exchanges of Notes, BYBIL 29 (1952) 214. Intergovernmental agreements are agreements in simplified form usually concluded by the executive; see Hamzeh, BYBIL

43 (1968/69) 189; McNair, Law of Treaties 19 (“[m]ost Exchanges of Notes . . . fall into the

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response to the need for speed and simplicity without any loss of legal e ect in expressing international commitments.5

The 1935 Harvard Draft on the Law of Treaties specifically excluded the exchange of notes from the scope of its use of the term “treaty”. However, it did so on the basis of their “peculiar form” rather than their substance or legal e ect.6

2. History

2The text adopted by the ILC in 1962 contained one category for “formal treaties” and another for “treaties in simplified form” which included exchange of notes.7 However, in 1965 the Commission dropped the distinction between formal and informal treaties (and thereby also mention of the exchange of notes) on the ground that agreements in simplified form were internationally as valid as formal treaties.8 Accordingly, the final ILC Draft 1966 no longer mentioned the exchange of notes.9 In 1968 in Vienna, Poland took up the matter again and proposed the basis of today’s Article 13.10 It was redrafted by the Drafting Committee in order to take into account other articles relating to the expression of consent.11 In 1969 the article was adopted without further changes by 91 votes to none.12

category of inter-governmental agreements”). Interdepartmental agreements are concluded between Government departments of di erent States, Jennings/Watts N. 582, 597.

5 Ibid.

6Article 1, para. (b) of the Harvard Draft provided that “[t]he term ‘treaty’ does not include an agreement e ected by exchange of notes”, AJIL 29 (1935) Supplement 657, and 698.

7See, inter alia, Article 1, subpara. 1(b) of the ILC Report 1962 (“treaty in simplified form means a treaty concluded by exchange of notes, exchange of letters . . . or other instrument

concluded by any similar procedure”), YBILC 1962 II 161 .

8 ILC Report 1965, YBILC 1965 II 13, para. 3; Hamzeh, BYBIL 43 (1968/69) 185 f.

9See the statement in Vienna by Nahlik of the Polish delegation, OR 1968 CoW 93, para. 65.

10OR Documents 127, para. 127. Article 10bis on “[c]onsent to be bound by a treaty expressed by an exchange of instruments constituting a treaty” stated: “[t]he consent of States to be bound by a treaty embodied in two or more related instruments is expressed by the exchange of such instruments, unless the States in question otherwise agreed”.

11See the statement in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1968 CoW 345, para. 77. The Drafting Committee was at pains to avoid any presumption that an exchange of instruments constituted a treaty, ibid. The debates are reproduced at OR 1968 CoW 93 f, and 345 ; and OR 1969 Plenary 23 , 28, and 159.

12OR 1969 Plenary 27, para. 9. A Belgian amendment, aimed at replacing the words “exchange of instruments” with “exchange of letters or notes”, was unsuccessful; see the statement by the Belgian delegation, ibid. 24, para. 60; Yasseen, Chairman of the Drafting Committee, ibid. 25, para. 71, and 159, para. 7.

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B. INTERPRETATION OF ARTICLE 13
1. Scope of Article 13
Article 13 provides that the consent of States to be bound by a treaty may		3
be constituted by instruments exchanged between them. The expression
“consent to be bound by a treaty” is discussed in Article 11 (q.v., N. 4–6).
Article 13 refers in the plural to the consent of States, whereas Articles 12 and 14–17
(q.v.) relating to participation in a treaty refer in the singular to the consent of a State.
The di erence is attributable to the fact that Article 13 concerns an exchange of instru-
ments between at least two States.13 Interestingly, mention of exchange of instruments
in Article 11 (q.v.) refers in the singular to a State (most likely for reasons of style).
Article 13 is not a residual rule. Notes sent in the normal course of diplomatic		4
relations and notes in reply do not constitute treaties except as provided for
in Article 13 and defined in Article 2, subpara. 1(a) (q.v., N. 2–24). The
decisive factor is whether it is intended that the notes create legal rights and
obligations between the parties.14
The conjunction “or” at the end of para. (a) makes it clear that Article 13 does not call
for the fulfilment of all conditions laid down in paras. (a) and (b) (N. 9–10). In par-
ticular, para. (b) is not a residual rule in relation to para. (a) (see also Article 12, N. 7).
Where neither para. (a) nor para (b) have been satisfied, exchange does not constitute
consent to be bound.15
2. Exchange of Instruments
International law dictates neither the form nor the procedure for the conclu-		5
sion of international agreements; accordingly, there are no rules prescribing

the form of the exchange of instruments. Nevertheless, the instruments must be related.16

13Statements in Vienna by Rosenne of the Israeli delegation, OR 1968 CoW 345, para. 79; the Australian delegation, ibid. para. 80; and by Yasseen, Chairman of the Drafting Committee, ibid. 346, para. 88.

14Hamzeh, BYBIL 43 (1968/69) 186.

15See the statement in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1968 CoW 345, para. 77.

16Aegean Sea Continental Shelf (Greece/Turkey) Case, ICJ Reports 1978 39, para. 96 (in that case a joint communiqué); McNair, Law of Treaties 4, 32; Weinstein, BYBIL 29 (1952) 209 f. In some cases the existence of a treaty may be inferred from a whole exchange of correspondence, Reuter, Introduction N. 101.

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6Instruments in the context of Article 13 are usually employed between two parties.17 They may be a note, letter, telegram, message, correspondence, communication, memorandum or an aide-mémoire signed or initialled, or an unsigned note verbale, with or without a seal.18 The terminology has no legal significance, the terms being used interchangeably.19 In each case, the instruments are written. Thus, while the term “instruments” appears formal, particularly for notes verbales, it is in line with Article 2, subpara. 1(a) (q.v., N. 15–17)20 encompassing every written type of international agreement without regard to its designation.21 In addition, the term “instruments” (as opposed to, e.g., letters or notes) a ords the article broader scope embracing a wide variety of situations in practice.

7Typical for the “exchange” procedure is that the signatures do not appear together on the one document, but on two separate notes. The initiating note sets out the proposed agreement; and the reply acceptance.22 Each of the parties has in their possession one note signed by the authorised representative of the other party. In practice, the second note, usually the note in response, will reproduce the text of the first note. The agreement lies in the exchange of both instruments.

The notes exchanged need not necessarily be signed, though they may be initialled by the authorised o cial and have an o cial seal. Unsigned notes verbales, can cover an equally wide range of topics and may even be subject to ratification.23 There is no legal di erence between a note verbale and a signed formal note.24

8Express provision may be made for the agreement to take e ect immediately or upon any date, act or event as agreed upon between the parties.25 In the absence of an express provision, when the date of the notes is the same, then that date will be decisive; when the dates are di erent, it is the date of the later

17See Aust, Modern Treaty Law 102 f; Gore-Booth/Pakenham N. 29.38; Weinstein, BYBIL 29 (1952) 207. In the Maritime Delimitation and Territorial Questions (Qatar/Bahrain) Case, ICJ Reports 1994 112, the Court had to consider the legal e ect of a double exchange of letters between Qatar and Saudi Arabia and between Bahrain and Saudi Arabia.

18Weinstein, ibid. 205 f, 215 n. 1; D.P. Myers, The Names and Scope of Treaties, AJIL 51 (1957) 574 at 59.

19Jennings/Watts N. 586; Weinstein, ibid. 205.

20Statement in Vienna by the US delegation, OR 1968 CoW 94, para. 2.

21For Nahlik of the Polish delegation in Vienna, replacing “exchange of instruments” with “exchange of letters or notes [would] unduly restrict the article’s scope”, OR 1969 Plenary 24, para. 65.

22See Gore-Booth/Pakenham N. 29.34.

23See Weinstein, BYBIL 29 (1952) 206 f.

24Wilmanns, EPIL 3 (1997) 695.

25For example, if the exchange of letters forms part of a broader set of agreements constituting a whole, then the agreement by exchange of letters only enters into force with the whole set of agreements to which it belongs, Reuter, Introduction N. 101 (addendum).

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note which will count.26 Unless otherwise agreed upon between the parties, there is no need for any subsequent approval.27 Nevertheless, the notes may provide that the agreement constituted by the exchange of notes will not enter into force until each party has fulfilled its constitutional requirements and informed the other contracting party or parties thereto.28

3. Paras. (a) and (b)
According to para. (a)—the first of the two cases in Article 13 (N. 10)—the	9
consent of States may be expressed by an exchange of instruments when
the instruments provide that their exchange shall have that e ect. Here,
the parties delineate in advance in writing in the notes themselves that the
exchange shall constitute consent to be bound.29
In the second case, para. (b), it may be otherwise established that those	10
States were agreed that the exchange of instruments should have that e ect.
The States executing the exchange of instruments30 reach an agreement orally
or in writing outside the treaty that the exchange shall constitute consent to
be bound. Establishment of the agreement introduces an objective element
(Article 12, N. 10).
C. CONTEXT
1. Relationship to Other Provisions
The relationship between Article 13 and Articles 2, subpara. 1(a) and 11 (q.v.)	11
has been indicated above (N. 5–8). The instruments referred to in Article 13

are to be distinguished from those of ratification provided for in Article 16 (q.v.): the procedure whereby exchange alone expresses consent is di erent from the exchange of instruments of ratification which is the final step in a two-stage procedure.31

26Weinstein, BYBIL 29 (1952) 209 f; Gore-Booth/Pakenham N. 29.36. See also van Assche, Article 13, N. 60 .

27Statement by Blix of the Swedish delegation, OR 1968 CoW 345, para. 81.

28Aust, Modern Treaty Law 102.

29For example: “I have the honour to propose that this Note and your reply in that sense shall constitute an Agreement between our two Governments”—to which the reply note will read: “your Excellency’s Note and this reply shall constitute an Agreement”, or words to that e ect; Aust, ibid. 445 f (italics omitted).

30Yasseen, OR 1969 Plenary 159, para. 7.

31Statement by Nahlik of the Polish delegation in Vienna, OR 1968 CoW 93, para. 65.

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2. Customary Basis of Article 13

12Despite long-standing resort to exchange of notes in practice (N. 1), the ILC appears to have been the first to formulate rules on the topic. In 1968 and 1969 in Vienna this may possibly have implied progressive development,32 but given the unanimous support at the Conference and the lack of any subsequent opposition, it can be assumed that today Article 13 is firmly established in customary international law.

D. APPRECIATION

13Article 13 confirms the practice of States to consent to be bound by a treaty constituted by instruments exchanged for that purpose between them. Together with Article 11 (q.v.), Article 13 has allowed simplified treaties to enter through the back door.33 Indeed, the method expounded therein appears as eminently plain as is it suited to its purpose.

Paras. (a) and (b) of Article 13 are su ciently broad and flexible to cover a variety of possibilities of expressing consent to be bound by means of exchange of notes. Somewhat cryptically, however, Jennings/Watts state that, in addition to Article 13, “[c]onsent to be bound by treaties constituted by an exchange of instruments may also be expressed in other ways”.34

32As claimed by Jiménez de Aréchaga of the Uruguayan delegation in Vienna, OR 1968 CoW 93, para. 66.

33Van Assche, Article 13, N. 3.

34N. 601.

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Article 14

Consent to be bound by a treaty expressed by ratification, acceptance or approval

1.The consent of a State to be bound by a treaty is expressed by ratification when:

(a)the treaty provides for such consent to be expressed by means of ratification;

(b)it is otherwise established that the negotiating States were agreed that ratification should be required;

(c)the representative of the State has signed the treaty subject to ratification; or

(d)the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

2.The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification.

Article 14 Expression, par la ratification, l’acceptation ou l’approbation, du consentement à être lié par un traité

1.Le consentement d’un Etat à être lié par un traité s’exprime par la ratification:

a)lorsque le traité prévoit que ce consentement s’exprime par la ratification;

b)lorsqu’il est par ailleurs établi que les Etats ayant participé à la négociation étaient convenus que la ratification serait requise;

c)lorsque le représentant de cet Etat a signé le traité sous réserve de ratification; ou

d)lorsque l’intention de cet Etat de signer le traité sous réserve de ratification ressort des pleins pouvoirs de son représentant ou a été exprimée au cours de la négociation.

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2.Le consentement d’un Etat à être lié par un traité s’exprime par l’acceptation ou l’approbation dans des conditions analogues à celles qui s’appliquent à la ratification.

Artikel 14 Zustimmung, durch einen Vertrag gebunden zu sein, durch Ratifikation, Annahme oder Genehmigung

1.Die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, wird durch Ratifikation ausgedrückt,

a)wenn der Vertrag vorsieht, dass diese Zustimmung durch Ratifikation ausgedrückt wird;

b)wenn anderweitig feststeht, dass die Verhandlungsstaaten die Ratifikation einvernehmlich für erforderlich hielten;

c)wenn der Vertreter des Staates den Vertrag unter Vorbehalt der Ratifikation unterzeichnet hat oder

d)wenn die Absicht des Staates, den Vertrag unter Vorbehalt der Ratifikation zu unterzeichnen, aus der Vollmacht seines Vertreters hervorgeht oder während der Verhandlungen zum Ausdruck gebracht wurde.

2.Die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, wird durch Annahme oder Genehmigung unter ähnlichen Bedingungen ausgedrückt, wie sie für die Ratifikation gelten.

ILC Draft 1966

Article 14—Consent to be bound by a treaty expressed by ratification, acceptance or approval

1.The consent of a State to be bound by a treaty is expressed by ratifi cation when:

(a)the treaty provides for such consent to be expressed by means of ratification;

(b)it is otherwise established that the negotiating States were agreed that ratification should be required;

(c)the representative of the State in question has signed the treaty subject to ratification; or

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consent expressed by ratification, acceptance or approval 205

(d)the intention of the State in question to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

2.The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification.

Materials:

WALDOCK Report I: Articles 10 and 16.

Minutes: YBILC 1962 I 100 , 137 , 205 , 237, 255 f, 271 f, 276 f. ILC Draft 1962: Articles 12 and 14.

WALDOCK Report IV: Articles 12 and 14. Minutes: YBILC 1965 55 , 258 , 281 f.

ILC Draft 1965: Article 12.

Minutes: YBILC 1966 I/2 287, 292, 295, 326, 342.

ILC Draft 1966: Article 11.

Minutes: OR 1968 CoW 85 , 94 f, 360; OR 1969 Plenary 23, 26 f.

Vienna Conference Vote: 94:0:0

Selected Literature (in addition to the literature mentioned in Articles 11 and 12, q.v.):

R. Ben Achour/I. Frihka/M. Snoussi, Article 14, in: Corten/Klein (eds.) 465 .

The basis of this commentary was prepared by Alison Wiebalck.

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	CONTENTS
		Paras.
A. Background ........................................................................................		1
1.	Introduction ....................................................................................	1
2.	History ............................................................................................	2
B. Interpretation of Article 14 ............................................................		3
1.	Scope ...............................................................................................	3
2.	Consent Prescribed by the Treaty (Subpara. 1[a]) .............................	7
3.	Consent Established by Agreement Among Negotiating States
	(Subpara. 1[b]) .................................................................................	8
4.	Consent Expressed by Signature Subject to Ratification
	(Subpara. 1[c]) .................................................................................	10
5.	Intention Transpiring From Full Powers
	or Expressed During Negotiation (Subpara. 1[d]) .............................	11
6.	Consent Expressed by Acceptance or Approval (Para. 2) ...................	14
C. Context ..............................................................................................		17
1.	Relationship to Other Provisions ......................................................	17
2.	Matters Not Dealt With ...................................................................	18
3.	Customary Basis of Article 14 ..........................................................	19
D. Appreciation .......................................................................................		20

A. BACKGROUND

1. Introduction

1 Through the application of the Roman private-law rule that the principal was bound by his agent, a sovereign was bound by an agreement signed by his representative unless the latter had exceeded his powers.1 Following the shift in the late 18th century to parliamentary control over a State’s treatymaking powers, ratification came to signify formal approval by a State of the treaty itself as a separate step in the expression of a State’s consent to bound.2 The general rule developed that ratification was necessary to render

1Harvard Draft 1935, AJIL 29 (1935) Supplement 756 f. See on the subject also C. Nicopoulos, L’acte de ratification et sa place dans la procédure diplomatique de la conclusion des traités (1942); J. M. Jones, Full Powers and Ratification (1946); J. Freymond, La ratification des traités et le problème des rapports entre le droit international et le droit

interne (1947); Wildhaber, Treaty-Making Power 9 .

2ILC Report 1966, YBILC 1966 II 197, para. 2; Detter, Essays 18 f; Jones, ibid. 12 , 74 ; Holloway, Modern Trends 40 , 72 f.

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a treaty legally binding.3 When States failed to stipulate how they wished to express their consent to be bound by a treaty, traditional doctrine presumed the need for ratification. However, as power shifted from parliament to the executive, and as States became increasingly interdependent and resorted more frequently to the use of less formal international agreements, the role of ratification again evolved. Doctrine no longer saw an inherent necessity in ratification (Article 12, N. 1).

Acceptance and approval emerged after 1945 as alternatives to ratifi cation. They responded to the need for more flexible procedures to allow as many States as possible to express their definitive consent to be bound by a treaty without violating their respective constitutional requirements.4

2. History
The topic occupied the ILC from 1953 onwards.5 In 1962 Waldock Report	2

I introduced Article 10 on treaties subject to ratification and Article 16 on participation in a treaty by acceptance.6 In the ILC Draft 1962 these were numbered Articles 12 and 14, respectively.7 Article 12, carefully balancing the situations when a treaty was, or was not, subject to ratification, divided Governments in their submissions to the ILC.8 In 1965, a single article was proposed which avoided the doctrinal dispute about a residual rule in favour of ratification.9 The revised text, now numbered Article 11, was adopted by 17 votes to none.10 In Vienna, various amendments—aiming at a residuary rule

3ILC Report 1966, ibid. See the Territorial Jurisdiction of the International Commission of the River Oder Case (1929), Series A No 23, 20 (“conventions, save in certain exceptional cases, are binding only by virtue of their ratification”); in the Ambatielos (Greece/United Kingdom) (Preliminary Objection) Case, ICJ Reports 1952 43, the Court held that where a treaty provided for ratification, the latter was “an indispensable condition” for bringing

that treaty into force.

4 Y.-L. Liang, The Use of the Term “Acceptance” in United Nations Treaty Practice, AJIL 44 (1950) 342 .

5 Lauterpacht Report I, YBILC 1953 II 112; Lauterpacht Report II, YBILC 1954 II 127; Fitzmaurice Report I, YBILC 1956 II 123.

6 YBILC 1962 II 48 .

7 YBILC 1962 II 171 . The debate in 1962 is reproduced at YBILC 1962 I 100 , 137 , 205 , 237, 255 f, 271 f, and 276 f.

8 Waldock Report IV, YBILC 1965 II 36 , 38, para. 1.

9YBILC 1965 I 258, para. 35. The debate in 1965 is at YBILC 1965 I 55 , 258 , and 281 f.

10YBILC 1965 I 282, paras. 26. In 1966 the ILC debated the provision at YBILC 1966 I/2 287, 292, 295, 326, and 342. The ILC Draft 1966 is at YBILC 1966 II 197 .

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in favour of signature or of ratification—were raised and dismissed (Article 12, N. 3).11 Eventually, Article 14 was adopted by 94 votes to none.12

The ILC aimed at reconciling the emergence of diverse modern practices to express consent to be bound by a treaty with the underlying issue of whether in international law treaties required ratification for a State to be bound.13

B. INTERPRETATION OF ARTICLE 14

1. Scope

3As its title indicates, Article 14 concerns the situation where a State’s consent to be bound by a treaty is expressed by ratification, acceptance or approval. The notion of “consent to be bound by a treaty” is discussed in Article 11 (q.v., N. 4–6); the terms ratification, acceptance and approval are defined in Article 2, subpara. 2(b) (q.v., N. 26) as “[meaning] the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty”.

4The expression of consent to be bound by ratification, acceptance or approval requires two steps: (i) the execution of an instrument of ratification, acceptance or approval by a duly authorised State representative expressing the intent of the State to be bound by the relevant treaty; and (ii) according to Article 16 (q.v.) the deposit (for multilateral treaties) or exchange (for bilateral treaties) of the instruments of ratification, acceptance or approval or their notification.14

5The question whether or not a treaty requires ratification in order to establish a State’s consent to be bound by the treaty depends on whether or not the case falls within the provisions of Article 14, subparas. 1(a)–(d) (N. 7–13). It follows that, if the conditions in subparas. 1(a)–(d) are not met, it is presumed that ratification is not required.

11Other amendments were submitted by Finland, OR Documents 127, subpara. 134(a), seeking to improve the drafting; and Spain, ibid. subpara. 134(b), questioning: (i) the need for a separate paragraph on acceptance and approval, given that they performed the same function as ratification; and (ii) the requirement in subpara. 1(b) that the existence of an agreement be “established”. Both amendments were referred to the Drafting Committee, though neither was taken over. OR 1968 CoW 360, para. 90.

12OR 1969 Plenary 26 f, para. 3. The debate is at OR 1968 CoW 85 , 94 f, and 360; and OR 1969 Plenary 23, and 26 f.

13See the statements in the ILC b y Tunkin, ILC, YBILC 1965 I 61, para. 53; and Waldock, ibid. 73, para. 10; the ILC Report 1966, YBILC 1966 II 197, para. 4 (“a largely theoretical controversy”).

14UN Final Clauses of Multilateral Treaties Handbook (2003), 42.

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Subparas. 1(a) and (b) (N. 7–9) both refer to an understanding between	6
the States concerned. Subparas. 1(c) and (d) (N. 10–13) refer to unilateral
expressions of intent by individual negotiating States.15
The conjunction “or” at the end of subpara. 1(c) makes it clear that para. 1 does not
call for the fulfilment of all conditions laid down in subparas. (a)–(d)16 In particular,
subpara. 1(b) is not a residual rule in relation to subparas. 1(c) or (d). (see also Article
12, N. 7).
2. Consent Prescribed by the Treaty (Subpara. 1[a])
According to subpara. 1(a), the consent of a State to be bound may be	7
expressed by ratification when the treaty itself provides for such consent to
be expressed by means of ratification. More formal types of international
agreement regularly include express provision for ratification (e.g., Article
110, para. 1 of the UN Charter and Article 82 [q.v.] of the Convention
itself). Informal instruments, e.g., exchanges of notes, can equally stipulate
the need for ratification.17 Ratification usually follows signature although the
latter is not a necessary condition. If the treaty provides for consent to be
expressed by ratification, it is not necessary for a representative to sign the
treaty “subject to ratification”.18
3. Consent Established by Agreement Among Negotiating States
(Subpara. 1[b])
The agreement between the negotiating States to express their consent to	8
be bound by ratification need not necessarily be recorded in the text of the
treaty (as in N. 7). As provided by subpara. 1(b), the consent of a State to
be bound by a treaty can also be expressed by ratification if it is otherwise
established that the negotiating States were agreed that ratification should
be required. “Negotiating States” are defined in Article 2, subpara. 1(e) (q.v.,
N. 40–42) as States “which took part in the drawing up and adoption of the
text of the treaty”.
The notion of agreement introduces an objective element in establishing the	9
intention of the negotiating States. However, subpara. 1(b) does not state how

15ILC Report 1966, YBILC 1966 II 198, para. 8.

16See the statement in Vienna by Yasseen as Chairman of the Drafting Committee, ibid. 23, para. 57.

17ILC Report 1966, YBILC 1966 II 197, para. 4.

18Aust, Modern Treaty Law 105.

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the agreement is to be established.19 Certainly it may be in writing,20 but also oral and even tacit agreements are conceivable, evidenced, for instance, in the travaux préparatoires.21 Whatever form of communication is adopted, it must be unequivocal (Article 12, N. 10).22 Simple inference from the intention of the States is insu cient.23

4. Consent Expressed by Signature Subject to Ratification (Subpara. 1[c])

10The consent of a State to be bound by a treaty is furthermore expressed by ratification when the representative of the State has signed the treaty subject to ratification (subpara. 1[c]). In this case, the State’s consent to be bound will not be e ective until ratification.24

Accordingly, some States may express their consent to be bound by the treaty by ratification, others by signature alone (depending on their respective constitutional requirements).25 Thus, subpara. 1(c) protects those States for which ratification is necessary, even when “at variance with what is or will be stipulated in the treaty”.26

5. Intention Transpiring From Full Powers or Expressed During Negotiation (Subpara. 1[d])

11The first part of subpara. 1(d) provides that the consent of a State to be bound by a treaty is expressed by ratification when the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative. A clause may be inserted in the instrument of full powers (Article 7, N. 8–9) produced by the representative entitling him (solely) to sign the treaty subject to ratification.

19Bolintineanu, AJIL 68 (1974) 683.

20Either in the treaty itself or in a collateral agreement, ILC Report 1966, YBILC 1966 II 198, para. 8.

21Aust, Modern Treaty Law 104.

22Reuter, Introduction N. 95. The words “is otherwise established” were adopted in preference to the less specific “it appears from the circumstances”; see the Spanish delegation in Vienna, OR 1968 CoW 92, para. 41.

23See the statement in Vienna by the Italian delegation, ibid. 91, para. 37 (“wise to introduce the idea of formal manifestation of intention during negotiations”); and the Venezuelan delegation, ibid. CoW 92, para. 43.

24Jennings/Watts, N. 600.

25E.g., Article 43, para. 3 of the UN Charter (“[t]he agreement or agreements . . . shall be subject to ratification by the signatory states in accordance with their respective constitutional processes”) (italics added ).

26Bolintineanu, AJIL 68 (1974) 684. See the observations by the Danish Government to the ILC, Waldock Report IV, YBILC 1965 II 37 (“the question whether or not ratification is required should not necessarily be answered in the same way with respect to both parties”).

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Thus, even where a treaty provides that it will enter into force upon signature,	12
for the other negotiating State or States a signature so expressed to be subject
to ratification amounts to a conditional signature only, i.e., the consent of
the State to be bound will operate as from the date of ratification.27 In such
cases, the provisions of the full powers replace for the State which has issued
them the relevant clauses of the treaty.28
The intention appearing from the full powers to sign subject to ratification must have
been brought to the notice of the other State or States. Subpara. 1(d) underlines the
importance of ascertaining the intention of the other party or parties regarding the
method of expressing consent to be bound.
The second part of subpara. 1(d) provides that the intention of the State to	13
sign subject to ratification need not necessarily appear from the full powers of
its representative, but may be expressed during the negotiation. The position
of the other negotiating State or States is safeguarded since the intention to
sign subject to ratification must have been brought to their notice.29
6. Consent Expressed by Acceptance or Approval (Para. 2)
According to para. 2, the consent of a State to be bound by a treaty may	14
also be expressed by acceptance or approval. Ratification, acceptance and
approval all have the same legal e ect. States are free as to what terms they
employ; it is a matter of terminology rather than substance. Nevertheless,
they are distinct procedures and may even appear together with ratification
and accession in the same treaty.30
Acceptance and approval may be expressed under conditions similar to those	15
that apply to ratification. This formulation appears imprecise and should
be read as meaning that para. 1 applies mutatis mutandis to para. 2.31 These
broad terms aim at giving States the choice between ratification, acceptance

and approval in order to obtain the consent of the largest possible number of States to be bound by the treaty.32

27Aust, Modern Treaty Law 104. On the e ective date of a signature ad referendum, see Article 12, N. 20–23.

28Bolintineanu, AJIL 68 (1974) 685.

29ILC Report 1966, YBILC 1966 II 198, para. 8. In Vienna, Zemanek of the Austrian delegation “doubted whether the phrase . . . served any purpose”, OR 1968 CoW 92, para. 47.

30ILC Report 1966, ibid. para. 10; see the statements in the ILC by Rosenne, YBILC 1965 I 75, para. 37; Waldock, ibid. 76, para. 48; and its Chairman, Bartos, ibid., para. 38 (“no less valid than the term ‘ratification’”); Waldock IV, YBILC 1965 II 41, para. 1.

31ILC Report 1966, ibid. para. 12.

32Statement by Waldock in the ILC, YBILC 1965 I 76 f, para. 55, and 259, para. 38.

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16Paras. 1 and 2 thus accommodate both those negotiating States which are required by their constitutional law to ratify a treaty as well as those satisfied with acceptance or approval.

On the national plane acceptance and approval are simplified forms of ratification allowing the Government the opportunity to examine the treaty before consenting to be bound without being obliged to submit the text to parliamentary scrutiny. Avoidance of the more formal terms “ratification” and “accession” permit States to become bound by simpler procedures. On the international plane, acceptance and approval amount to a definitive declaration by a State expressing its will to be bound by a treaty (Article 2, subpara. 1[b], N. 26).

C. CONTEXT

1. Relationship to Other Provisions

17 The following relations with other provisions may be noted:

Article 2, subpara. 1(b) (q.v., N. 26) outlines the use of the terms ratification, acceptance and approval.

Ratification, acceptance and approval are three of the means by which a State may express its consent to be bound by a treaty according to Article 11 (q.v.).

Together with Article 12 (q.v, N. 3), Article 14 leaves the question of ratification open as a matter of the intention of the negotiating States without recourse to a residuary rule (N. 5).

According to Article 16, paras. (a)–(c) (q.v., N. 5–7), unless the treaty otherwise provides, ratification, acceptance and approval have no e ect internationally if the instruments concerned are not exchanged, deposited or notified (N. 4).

According to Article 82 (q.v.), the Convention itself is subject to ratification (N. 7), but not to either acceptance or approval.

2. Matters Not Dealt With

18As pointed out (N. 5, 11), Article 14 leaves the question of ratification open as a matter of the intention of the negotiating States without recourse to a residuary rule.

3.Customary Basis of Article 14

19Indubitably, the principle of ratification is a general norm of international law refl ected in existing practice and codifi ed in Article 14.33 Insofar as

33Statements in Vienna by the Uruguayan delegation, OR 1968 CoW 86, para. 12; and in

the ILC by Waldock, YBILC 1965 I 76 f, para. 55; Delbrück/Wolfrum III 555 (“ganz überwiegend gefestigt”).

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subpara. 1(b) (N. 8–9) requires an agreement and subpara. 1(d) (N. 11–13) postulates that “the intention . . . was expressed during negotiation”, Article 14 introduced in Vienna in 1968 some innovatory details which have since most likely hardened into customary law.34

D. APPRECIATION

The ILC succeeded in a rming the significance of ratification—as perceived 20 by a number of States—whilst simultaneously accommodating new and more streamlined means of expressing consent to be bound. To this end, the emphasis in Article 14 is laid on the dynamics of international law, namely

the intention of States to seek mutually acceptable arrangements in forms adapted to individual requirements.35 In practice, it is for the States themselves to determine whether or not ratification, acceptance or approval are necessary. Article 14 facilitates the need for clarity and precision in entering treaty commitments in the interests of clearer reciprocal international expectations.

34Bolintineanu, AJIL 68 (1974) 684 f.

35ILC Report 1966, YBILC 1966 II 198, para. 8; Lachs, YBILC 1965 I 259, para. 44; M. Lachs, Some Reflections on Substance and Form in International Law, in: W.G. Friedmann/L. Henkin/O.J. Lissitzyn (eds.), Transnational Law in a Changing Society. Essays in Honour of Ph. Jessup (1972) 111.

Article 15

Consent to be bound by a treaty expressed by accession

TheconsentofaStatetobeboundbyatreatyisexpressedbyaccessionwhen:

(a)the treaty provides that such consent may be expressed by that State by means of accession;

(b)it is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession; or

(c)all the parties have subsequently agreed that such consent may be expressed by that State by means of accession.

Article 15 Expression, par l’adhésion, du consentement à être lié par un traité

Le consentement d’un Etat à être lié par un traité s’exprime par l’adhésion:

a)lorsque le traité prévoit que ce consentement peut être exprimé par cet Etat par voie d’adhésion;

b)lorsqu’il est par ailleurs établi que les Etats ayant participé à la négociation étaient convenus que ce consentement pourrait être exprimé par cet Etat par voie d’adhésion; ou

c)lorsque toutes les parties sont convenues ultérieurement que ce consentement pourrait être exprimé par cet Etat par voie d’adhésion.

Artikel 15 Zustimmung, durch einen Vertrag gebunden zu sein, durch Beitritt

Die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, wird durch Beitritt ausgedrückt,

a)wenn der Vertrag vorsieht, dass die Zustimmung von diesem Staat durch Beitritt ausgedrückt werden kann;

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215

b)wenn anderweitig feststeht, dass die Verhandlungsstaaten vereinbart haben, dass die Zustimmung von diesem Staat durch Beitritt ausgedrückt werden kann, oder

c)wenn alle Vertragsparteien nachträglich vereinbart haben, dass die Zustimmung von diesem Staat durch Beitritt ausgedrückt werden kann.

ILC Draft 1966

Article 12—Consent to be bound by a treaty expressed by accession The consent of a State to be bound by a treaty is expressed by accession when:

(a)The treaty or an amendment to the treaty provides that such consent may be expressed by that State by means of accession;

(b)It is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession; or

(c)All the parties have subsequently agreed that such consent may be expressed by that State by means of accession.

Materials:

WALDOCK Report I: Articles 7 and 13.

Minutes: YBILC 1962 I 87, 118 , 207 , 215, 237, 246 , 256, 270 f, 274 , 280 , 286 f. ILC Draft 1962: Articles 8, 9 and 13.

WALDOCK Report IV: Articles 8, 9 and 13.

Minutes: YBILC 1965 I 77 , 113 , 260.

ILC Draft 1965: Articles 8, 9 and 13 (all postponed by the Commission). Minutes: YBILC 1966 I/2 271 f, 287, 326, 342 f.

ILC Draft 1966: Article 12.

Minutes: OR 1968 CoW 69, 95 f, 360, 476; OR 1969 Plenary 23, 27, 229 , 343 .

Vienna Conference Vote: 73:14:8

Selected Literature:

J.F. Marchi, Article 15, in: Corten/Klein (eds.) 497 .

The basis of this commentary was prepared by Alison Wiebalck.

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	CONTENTS
		Paras.
A. Background ........................................................................................		1
1.	Introduction ....................................................................................	1
2.	History ............................................................................................	2
B. Interpretation of Article 15 ............................................................		5
1.	Scope ...............................................................................................	5
2.	Accession Envisaged by the Treaty (Para. [a]) ....................................	7
3.	Accession Otherwise Established (Para. [b]) .....................................	8
4.	Accession Subsequently Agreed Upon by the Parties
	(Para. [c]) .........................................................................................	11
C. Context ..............................................................................................		12
1.	Relationship to Other Provisions .....................................................	12
2.	Matters Not Dealt With ...................................................................	14
3.	Customary Basis of Article 15 .........................................................	15
D. Appreciation .......................................................................................		16

A. BACKGROUND

1. Introduction

1 Accession has a long tradition. In 1498 a treaty concluded between the monarchs of Spain and England reserved the right of States to accede to future treaties between them. In 1778 a treaty between Spain and Portugal made provision for other European powers to accede to it provided the original parties agreed; France was duly invited, signing up in 1783. Between 1815 and 1820, no fewer that twenty-nine States acceded to the 1815 Final Act of the Congress of Vienna.1 But it was with the development of the modern multilateral treaty and the “open-accession clause” that the technique of accession took on its simpler present form. Prior to the General Act of Berlin of 1885 accession required an Act of Acceptance, ratification and an exchange of the ratifications of those instruments. The new procedures required merely notifi cation of accession by a simple declaration, an acknowledgement thereto and the acceptance of the instrument of accession by the depositary.

1 J.M. Jones, Ratification and Full Powers (1946) 124 .

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Ratification of accession fell away, and accession to a treaty not yet in force became acceptable.2

2. History
In 1951 Brierly Report I provided that, unless otherwise stipulated in a	2
treaty, a State which had not taken part in the negotiations could only accede
to the treaty with the consent of all the parties thereto.3 The Lauterpacht
Report II of 1953 submitted that accession was admissible subject to the
provisions of the treaty only.4
In 1962 the ILC entered the debate against the backdrop of the emergence of	3

many new States and of various multilateral treaties no longer open to signature or accession.5 Thus, Waldock Report I dealt with accession in Article 7 on those States entitled to participate in a treaty prior and up to adoption, and in Article 13 on participation in a treaty by accession.6 Discussion in 1962 disclosed that the Commission was sharply divided.7 For some members a treaty’s silence on the subject of participation meant a presumption in favour of universality, i.e., that a general multilateral treaty be open to the participation of all States;8 for others, States could become parties to a treaty only on the terms laid down in the instrument itself or with the consent of the other parties, i.e., States had the sovereign right to choose their treaty partners.9 Eventually a compromise was reached.10 A lengthy discussion evolved in 1965 on Article 8 on participation in a treaty, culminating in a vote by roll-call.11 Waldock as Rapporteur then proposed omitting Articles 8 and 9

2Ibid. 126 ; McNair, Law of Treaties 148 . See also the Harvard Draft, AJIL 29 (1935) Supplement 822 ; Fitzmaurice Report I, YBILC 1956 II 125 (“accession is essentially

the acceptance of something already done—not a participation in the doing of it”). 3 YBILC 1951 II 70 (Article 7 para. 3).

4 Lauterpacht Report I, YBILC 1953 II 90, 91 (Article 7, para. 2). 5 Waldock Report I, YBILC 1962 II 43, para. 2.

6 YBILC 1962 II 42 and 53 .

7For the debate, see YBILC 1962 I 87, 118 , 207 , 215, 237, 246 , 256, 270 f, 274 , 280 , and 286 f.

8E.g., Lachs, YBILC 1962 I 247, para. 115 (“whenever a treaty was silent on the subject of participation, the presumption should be in favour of universality”); see Jennings/Watts,

N. 611 at n. 3 (“weighty theoretical objections to such a principle”).

9E.g., Briggs, YBILC 1962 I 248, para. 5; Cadieux, ibid. 132, para. 72; and Yasseen, ibid. 248, para. 11. See also the ILC Report 1962, YBILC 1962 II 168 f, para. 3.

10Article 13 of the ILC Draft 1962, YBILC 1962 II 173.

11I.e., (i) deletion of Article 8 para. 1 (that every State may become a party to a multilateral treaty unless the treaty provides otherwise), rejected by ten votes to ten, with no abstentions (casting vote of the President); (ii) a proposal to the e ect that every State may become a party to a general multilateral treaty, rejected by 13 votes to five, with two abstentions; (iii) a proposal to the e ect that States were free to choose their partners in a treaty, rejected nine votes to nine, with two abstentions (casting vote of the President); and

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on participation in a treaty, while incorporating some of the legal aspects of participation in a re-drafted Article 13 on consent to be bound expressed by accession.12 This provision led to Article 12 of the ILC Draft 1966.13

4In Vienna in 1969 the ILC Draft 1966 (N. 3), reviewed by the Drafting Committee,14 was adopted by 73 votes to 14, with eight abstentions15 amid a call to adopt a declaration on the principle of universality (see Article 15—Declaration, N. 2).16

B. INTERPRETATION OF ARTICLE 15

1. Scope

5Article 15 deals with accession as one of various means of expressing consent to be bound by a treaty (see also Articles 2, subpara. 1[b] and 11, q.v.). Through accession a State which was not a negotiating State (i.e., a non-sig- natory State) may become a party to a treaty already negotiated and signed by other States; or a negotiating State may become a party if it was unable to sign the treaty.17 Once a State establishes its consent to be bound by a treaty by accession, it is bound by the treaty, i.e., there is no need for ratification, acceptance or approval. Article 15 mentions three di erent circumstances in which a State may express its consent to be bound by a treaty by accession,18 namely, when the treaty so provides by means of an accession clause ( para. [a], N. 7); when it is otherwise established that the negotiating States were

(iv) a proposal to rea rm Article 8, para. 1 as drawn up in 1962, rejected by ten votes to mome. with one abstention; YBILC 1965 I 139 f, paras. 45, 47, 53, and 59. The debate is at YBILC 1965 I 113 .

12YBILC 1966 I/2 271, para. 50.

13Ibid. 271, para. 53, and 326, para. 88; adopted by 14 votes to none, with one abstention. Article 12 of the ILC Draft 1966 is reproduced at YBILC 1966 II 199 f.

14Deleting the words “or an amendment to the treaty” in para. (a), because an amendment was an integral part of the instrument, Yasseen, Chairman of the Drafting Committee, OR 1969 CoW 345, para. 16. An amendment submitted by then Czechoslovakia provided that any State had the right to become a party to a multilateral treaty “which a ects its legitimate interests”, OR Documents 128, para. 142; debated at OR 1968 CoW 95 f, paras. 28 ; eventually withdrawn, OR Documents 239, para. 47.

15OR 1969 Plenary 27, para. 9.

16Statement in Vienna by the Spanish delegation, ibid. para. 8.

17ILC Report 1966, YBILC 1966 II 199, para. 1; Aust, Modern Treaty Law 88. See Bartos in the ILC, YBILC 1965 I 78, para. 82 (“[a]fter the final date for signature, only accession was possible. That was an ingenious device . . . in order to establish a distinction between signature and succession, but the distinction introduced no change of substance”); and the Harvard Draft, AJIL 29 (1935) Supplement 816.

18ILC Report 1966, ibid. para. 4.

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so agreed ( para. [b], N. 8–10); and when all the parties have subsequently
agreed to admit its accession ( para. [c], N. 11). Most modern multilateral
treaties contain accession clauses. The rules laid down in paras. (b) and (c)
are intended to be residuary and apply only in the absence of specific provi-
sions in the treaty itself.19
There is no presumption in Article 15 that where a treaty is silent on the subject of
accession, that treaty is open to the participation of all States.20 It is in the hands of
the negotiating States ( paras. [a] and [b] ) or the parties to the treaty ( para. [c] ) to
agree on whether a State not entitled to become a party to a treaty under its terms is
subsequently invited to become a party.21 It follows that Article 15 expressly determines
which States have a voice in decisions regarding participation in a treaty and under what
circumstances (see in respect of the Convention Article 15—Declaration, q.v.).22
The words that State in paras. (a)–(c) emphasise that accession is not open to “all States”
or “any State”, but only to the particular State or States eligible or invited to accede.
Any di culties arising from accession—in particular which States may accede—are
circumvented if the treaty at issue has become binding on all States qua customary law
(Issues of Customary International Law, q.v.).
Under Article 15 accession does not depend on the treaty having entered		6
into force. This may be stated expressly by allowing accession to take place
before the time set for the treaty’s entry into force—either at once, or after
the expiry of a stipulated period, or implicitly by making the entry into force
conditional on the deposit of, inter alia, instruments of accession (Article 16,
N. 6).23 The rules on the deposit of instruments of accession are the same as
on the deposit of instruments of ratification, acceptance or approval (Articles
76 and 77, q.v.). Consent to be bound is e ective from the date of deposit.
Unless the treaty provides otherwise, accession has the same e ect as ratifica-
tion (Article 14, q.v.).24
2. Accession Envisaged by the Treaty (Para. [a])
Para. (a) provides that the consent of a State to be bound by a treaty is		7
expressed by accession when the treaty provides that such consent may be
expressed by that State by means of accession, i.e., when the treaty contains
an accession clause. States negotiating a treaty are free to provide that it be

19See Waldock Report IV, YBILC 1965 II 30, para. 7.

20See the statement by Rosenne in the ILC, YBILC 1962 I 135, para. 33 (“[a] great deal could be inferred from the silence of a treaty . . . the mere presence or absence of a certain clause in a treaty was not the only relevant factor”).

21ILC Report 1966, YBILC 1966 II 199, paras. 1 and 4.

22Waldock, YBILC 1962 I 119, para. 7.

23ILC Report 1966, YBILC 1966 II 199, para. 2; Aust, Modern Treaty Law 110 f. See also

Article 83.

24Aust, ibid. 113.

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open to accession, to whom and under what conditions. The accession clause may provide that the treaty be extended to all non-signatory States without distinction, in which case the treaty is said to be “open”; or it may provide that only certain States or categories of States may accede to it; or that nonsignatory States may accede by invitation of the contracting parties only.The privilege of non-signatory States to accede to a treaty is entirely subject to the control of the parties to the treaty.25

3. Accession Otherwise Established (Para. [b])

8In the absence of, in addition to or even contrary to, the provisions of an accession clause (N. 7), consent to be bound by a treaty may be expressed according to para. (b) when it is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession.

9Para. (b) refers to an agreement not in the treaty itself but otherwise, i.e., reached outside the treaty in writing, orally or tacitly by implied conduct. Whatever form is chosen, it must be unequivocal.26 In particular, the agreement must be established, which introduces an objective element (Article 12. N. 10). Thus, when a State claims to have reached an agreement by means other than the treaty itself, it will be called upon to demonstrate that another State or other States agreed that accession should have the e ect of expressing consent to be bound by the treaty.

10Para. (b) is broader in scope than para. (c) (N. 11). It refers to the (rather than all) negotiating States. Negotiating States are those States which took part in the drawing up and adoption of the treaty (Article 2, subpara. 1 [e], N. 40–42), though they may not necessarily become parties to the treaty. Conversely, para. (c) requires unanimous agreement by all the parties

25Gore-Booth/Pakenham N. 32.27. See also Ago in the ILC, YBILC 1962 I 124, para. 70 (“[a]n accession clause . . . constituted . . . an o er to the States which had not negotiated the treaty”); the Harvard Draft, AJIL 29 (1935) Supplement 828 (no right to accede). McNair, Law of Treaties 151 (“[c]omplete liberty exists for the States who are responsible for the final text of the treaty in the choice, if any, of the parties who shall have the opportunity of acceding to it. They may throw it open to every State or only to certain States. The choice of States may be made once and for all by naming or describing in the text of the treaty the States to whom accession is o ered . . . [or] . . . may make accession conditional upon the later invitation or consent of all the contracting parties, or of one or more named parties”).

26ILC Report 1966, YBILC 1966 II 196, para. 3 (“simply a question of demonstrating the intention from the evidence”); see Bolintineanu, AJIL 68 (1974) 683 (“[w]hat is essential in determining . . . consent to be bound by a treaty . . . are not the circumstances of its conclusion but the existence of an agreement to this e ect between the negotiating states, irrespective of whether it has been embodied in the text of the treaty”).

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(N. 11). Hence, para. (b) does not require unanimous consent in the case of multilateral treaties: it su ces if a certain number of negotiating States agree that accession shall be permitted.27

The aim of para. (b) is to avoid the situation where negotiating States with no intention of subsequently ratifying the treaty or acceding to it “confine themselves to the negative function of preventing the accession of other States”.28

4. Accession Subsequently Agreed Upon by the Parties (Para. [c])

Para. (c) provides that, once a treaty has entered into force, a State may express 11 its consent to be bound by accession when all the parties have subsequently agreed that such consent may be expressed by that State by means of accession. This is a strict condition: accession to a treaty must be granted by all

the parties (as opposed to “the negotiating States” (italics added ) in para. [b], N. 10), i.e., the existing parties must unanimously agree to the participation of non-signatory States in the treaty.29 Parties are those States which have consented to be bound and for which the treaty is already in force (Article 2, subpara. 1 [ g ], N. 48). In practice, the collective determination required by para. (c) means that the depositary will notify all the parties of the application by a non-signatory State for accession to the treaty; if no party objects, the accession is deemed accepted.30 As in para. (b), the agreement between all the parties will be reached outside the treaty in writing, orally or tacitly by implied conduct.

The di erence between paras. (b) (N. 10) and (c) appears justified. A negotiating State (as in para. [b])) may yet opt out of an agreement if it no longer wishes to be a party, whereas a State bound by the treaty cannot—hence the stricter provision in para. (c). For as long as all the parties agree that consent to be bound may be expressed by accession, negotiating States have less cause to hesitate before becoming parties to a treaty for fear that treaty partners be imposed upon them.31

27See Lauterpacht, Report I, YBILC 1953 II 119, para. 6 (“[i]nsofar as the original instrument makes accession dependent upon some subsequent action or condition, there is room . . . for relaxing in cases of doubt the requirement for unanimous consent”).

28See the statement in the ILC Lachs, YBILC 1962 I 125, para. 81; also Waldock, ibid. 132, para. 78 (“negotiating States . . . had an important interest in the question of future participants. If the decision were left to the parties alone, and they acted in a manner contrary to the views of the states which had participated in the negotiations, some of the latter might find themselves unwilling to proceed to ratify the treaty”); and Ago, ibid. 124, paras. 73 f.

29Statements in the ILC by Waldock, ibid. 281, para. 91; and Tsuruoka, YBILC 1965 I 119, para. 12 (“[i]nconceivable that an independent State should be required to accept, without its consent, treaty partners imposed on it by other States”).

30Aust, Modern Treaty Law 111 f.

31Tsuruoka in the ILC, YBILC 1965 I 119, paras. 16 f.

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C. CONTEXT

1. Relationship to Other Provisions

12Article 2, subpara. 1(b) (q.v., N. 26) equates accession as a means of consent with ratification, acceptance and approval (as in Article 14, q.v.). Although these means all have the same legal e ect, they di er in nature.32 Thus, ratification must be preceded by signature to create binding legal obligations under international law, whereas accession requires only one step, i.e., the deposit of an instrument of accession which binds the State concerned. The latter is then included among the parties.33

13The following relations with other provisions may be noted:

The fact that a State possesses the capacity to conclude a treaty according to Article 6 (q.v.) does not imply that that State possesses the right to be a party to a treaty. The equality of States implies that States are free to choose their partners when concluding a treaty.34

According to Article 7 (q.v.), an instrument of accession must be issued and signed, as is the case for ratification, either by the Head of State or Government or by the Minister for Foreign A airs.

According to Article 16, paras. (a)–(c) (q.v.), unless the treaty otherwise provides, accession has no e ect internationally as long as the instrument of accession is not exchanged, deposited or notified (N. 4).

Performance of the treaty’s obligations commences as provided for in the treaty or according to Article 24 (q.v.). In the interim, Article 18 (q.v.) applies.

As provided for by Article 83 (q.v), the present Convention is open for accession by any State belonging to any of the categories mentioned in Article 81 (q.v), the instruments of accession to be deposited with the UN Secretary-General.

Article 84, para. 1 (q.v., N. 1) made allowance for States to accede to the present Convention before its entry into force (which was on 27 January 1980). According to para. 2 (q.v., N. 2) for States acceding to the Convention after that date the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of accession.

2. Matters Not Dealt With

14Article 15 makes no distinction between bilateral and multilateral treaties. In practice, accession is mainly relevant to multilateral treaties. Nevertheless,

32See the statement in the ILC by its Chairman, Bartos, ibid. 79, para. 83; Aust, Modern Treaty Law 113.

33ILC Report 1966, YBILC 1966 II 199, para. 3.

34Statements in the ILC by Tsuruoka, YBILC 1965 I 119, para. 12; and Cadieux, ibid

121, para. 10. See also Article 15—Declaration.

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it is conceivable that parties to a bilateral treaty may consent to a third State acceding to it, so making it multilateral.35 Furthermore, Article 15 makes no allowance for Contracting States36 to agree to allow a non-signatory State to express its consent to be bound by accession.

3. Customary Basis of Article 15
In the words of one Government, Article 15 is consistent with UN practice	15
and reflects “the almost universal practice to define the States which may
accede”.37 Clearly, para. (a) reflects customary international law, whilst paras.
(b) and (c) as residuary rules introduced details which, when discussed in
Vienna, probably went beyond codification.38 Today the provision as a whole
most likely reflects a customary rule.
D. APPRECIATION
Article 15 confirms the freedom of the negotiating States and parties to	16

determine which non-signatory States may become parties to “their” treaty while avoiding the pitfalls associated with any presumption that a particular State has the right to do so.39 The tight, spare drafting of Article 15 confines itself to the circumstances of if and when a non-signatory State may express its consent to be bound by a treaty by accession. As such, Article 15 fits in with the Articles 11–14 (q.v.) all of which preserve “the procedural autonomy of the negotiating States”40 whilst allowing di erent methods of establishing the consent of non-signatory States to be bound by a treaty. States are nevertheless advised when negotiating treaties to consider the desirability of including an express provision on accession.41

35Waldock Report I, YBILC 1962 II 43, para. 2; Aust, Modern Treaty Law 88 f.

36As opposed to Parties; see Article 2, subpara. 1(f), N. 45.

37Observation by the UK Government to the ILC, Waldock Report IV, YBILC 1965 II 27.

38Rosenne, YBILC 1962 I 125, para. 3; McNair, Law of Treaties 150 (“the practice concerning accessions is characterised by great variety and flexibility”).

39Cadieux, YBILC 1962 I 131, para. 72; Waldock Report IV, YBILC 1965 II 29, para. 3.

40Bolintineanu, AJIL 68 (1974) 674.

41Gros, YBILC 1962 I 127, para. 28.

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