report on the law of treaties by mr. h. lauterpacht...

Document:- A/CN.4/63

Report on the Law of Treaties by Mr. H. Lauterpacht, Special Rapporteur

Topic: Law of Treaties

Extract from the Yearbook of the International Law Commission:- 1953 , vol. II

Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm)

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LAW OF TREATIES

DOCUMENT A/CN.4/63

Report by Mr. H. Lauterpacht, Special Rapporteur[Original: Englishf

[24 March 1953$

TABLE OF CONTENTSPage

PREFACE 90

TEXT OP ARTICLES 90

TEXT OF ARTICLES WITH COMMENTS AND NOTESPart I. Definition and nature of treaties 93Part II. Conclusion of treaties 106Part III. Conditions of validity of treaties

Section I. Capacity of the parties and of their agents 137Section II. Reality of consent 147Section III. Legality of the object of the treaty 154Section IV. Form and publicity 159

PREFACE1. This section of the Report on the Law of Treaties

is composed of the following three parts: Part I (Defi-nition and nature of treaties); Part II (Conclusion oftreaties); and Part III (Conditions of validity of trea-ties). It is intended that the subsequent sections 1 ofthe Report should cover the following other topics ofthe Law of Treaties: Part IV (Operation and enforce-ment of treaties); Part V (Interpretation of treaties);Part VI (Termination of treaties); Part VII (Rules andprinciples applicable to particular types of treaties).

2. The draft articles formulated by the SpecialRapporteur are accompanied throughout by commentsand notes. While the former is intended to constitutepart of the work of the Commission to be submittedto the General Assembly, the notes are merely inthe nature of explanations for the convenience of theCommission. However, the border-line between thecomment and the notes is not contemplated as beingrigid and it is probable that eventually substantialsections of the notes may be included in the comment.

3. The present Report is intended primarily as aformulation of existing law. It is largely for this reasonthat the Special Rapporteur has thought it necessaryin a number of cases — as, for instance, in the case ofarticle 9 relating to reservations — to append alterna-tive formulations de lege ferenda. In some cases it hasbeen thought necessary to include, for the considera-tion of the Commission, alternative formulations oflex lata. However, in general the Special Rapporteurhas attached importance to the preservation of the

1 Sir Hersch Lauterpacht having been elected to theInternational Court of Justice in 1954 was unable topublish these sections of his Report.

distinction between the two main tasks which, iarelation to this and other topics, confront the Commis-sion — namely, those of codification and developmentof international law.

TEXTS OF ARTICLES

Article 1ESSENTIAL REQUIREMENTS OF A TREATY

Treaties are agreements between States, includingorganizations of States, intended to create legal rightsand obligations of the parties.

Article 2FORM AND DESIGNATION OF A TREATY

Agreements, as defined in article 1, constitute treatiesregardless of their form and designation.

Alternative version of article 2

Agreements, as defined in article 1, constitute treat-ies regardless of their form and designation and regard-less of whether they are expressed in one or moreinstruments. A treaty obligation may be created by aunilateral instrument accepting an offer or followedby acceptance.

Article 3THE LAW GOVERNING TREATIES

In the absence of any contrary provisions laid downby the parties and not inconsistent with overridingprinciples of international law, the conditions of thevalidity of treaties, their execution, interpretation andtermination are governed by international custom and,in appropriate cases, by general principles of lawrecognized by civilized nations.

90

Law of treaties 91

Article 4ASSUMPTION OF TREATY OBLIGATIONS

A treaty becomes binding by signature which is notsubject to confirmation, ratification, accession, accep-tance, or any other means of expressing the will of theparties, through a competent organ, in accordancewith the provisions and practice of their constitution.

Article 5SIGNATURE

1. The signature of a treaty constitutes an assump-tion of a binding obligation in all cases in which theparties expressly so agree or where, in accordance witharticle 6, no confirmation of the signature is necessary.

2. In all other cases the signature, or any othermeans of assuming an obligation subject to subsequentconfirmation, has no binding effect except that itimplies the obligation, to be fulfilled in good faith:

(a) To submit the instrument to the proper constitu-tional authorities for examination with the view toratification or rejection;

(b) To refrain, prior to ratification, from any actintended substantially to impair the value of the under-taking as signed.

Article 6RATIFICATION

1. Ratification is an act by which a competent organof a State formally approves as binding the treaty orthe signature thereof.

2. In the absence of ratification a treaty is notbinding upon a Contracting Party unless:

(a) The treaty in effect provides otherwise by layingdown, without reference to ratification, that it shallenter into force upon signature or upon any other dateor upon a specified event other than ratification;

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

(c) The treaty is in the form of an exchange of notesor an agreement between government departments;

(d) The attendant circumstances or the practice ofthe Contracting Parties concerned indicate the inten-tion to assume a binding obligation without the neces-sity of ratification.

Alternative paragraph 22. Confirmation of the treaty by way of ratification

is required only when the treaty so provides.

Article 7ACCESSION

1. A State or organization of States may accede toa treaty, which it has not signed or ratified, by formallydeclaring in a written instrument that the treaty isbinding upon it.

2. Accession is admissible only subject to the provi-sions of the treaty.

3. Unless otherwise provided, accession may beeffected at any time after the establishment of thetext of the treaty.

Article 8ACCEPTANCE

[Wherever provision is made for the assumption ofthe obligations of the treaty by acceptance a Statemay become a party to the treaty by a procedure whichconsists either: (a) in signature, ratification, or acces-sion; or (b) in an instrument formally described asacceptance; or (c) in a combination of the two precedingmethods.]

Article 9

RESERVATIONS

I

A signature, ratification, accession, or any othermethod of accepting a multilateral treaty is void ifaccompanied by a reservation or reservations notagreed to by all other parties to the treaty.

II

Alternative proposals de lege ferenda

Alternative draft A of article 9

If, in any case where a multilateral treaty does notexpressly prohibit or restrict the faculty of makingreservations, a State signs, ratifies, accedes to orotherwise accepts the treaty subject to a reservationor reservations limiting or otherwise varying the obli-gations of any article or articles of the treaty, thefollowing procedure shall apply in the absence of anyother provisions in the treaty:

1. Whenever a treaty provides that it shall enterinto force on a specified number of States finally becom-ing parties thereto, the fact that a State has appendeda reservation or reservations to any article of the treatyis not taken into account for the purpose of ascertainingthe existence of the requisite number of parties to thetreaty.

2. If within three years of the treaty having enteredinto force less than two-thirds of the States acceptingthe treaty, whether they have accepted it with orwithout reservations, agree to the reservation orreservations appended by a State, that State, if itmaintains the reservation, ceases to be a party thereto.If at the end of that period and as the result of theoperation of the rule as stated, the number of partiesis reduced to below the requisite number stipulatedfor the entrance of the treaty into force, the treaty isdissolved.

3. If, at the end of or subsequent to the periodreferred to above, a reservation is agreed to expresslyor tacitly by two-thirds or more of the total number ofthe States accepting the obligations of the treaty, thenthe State making the reservation is deemed to be aparty to the treaty in respect of all parties theretosubject to the right of the other parties not to considerthemselves bound by the particular clause of thetreaty in relation to the State making the reservation.

4. A State is deemed to have agreed to a reservationmade by another State if, within three months of thereceipt of notification of the reservation in question,it has not forwarded to the depositary authority astatement containing a formal rejection of the reser-vation.

92 Yearbook of the International Law Commission, Vol. II

Alternative draft B of article 9

If, in any case where a multilateral treaty does notexpressly prohibit or limit the faculty of making reser-vations, a State signs, ratifies, accedes to or otherwiseaccepts the treaty subject to a reservation or reserva-tions limiting or otherwise varying the obligations ofany article or articles of the treaty, the followingprocedure shall apply in the absence of any other pro-visions in the treaty:

1. The text of the reservations received shall becommunicated by the depositary authority to all theinterested States. If, on the expiry of a period ofthree months following the receipt of such communica-tion, an interested State does not notify the depositaryauthority that it disagrees with the reservation, itshall be deemed to have accepted it.

2. Unless, after an interval prescribed by the conven-tion, two-thirds of the States qualified to offer objectionshave accepted the reservation, the reserving State, ifit maintains its reservation, will not be considered aparty to the treaty.

3. If two-thirds or more of the States referred to inparagraph 2 agree to the reservation, the reservingState will be considered a party to the treaty subjectto the right of any party not to apply to the reservingState the provision of the treaty in respect of which areservation has been made.

Alternative draft C of article 9

If, in any case where a multilateral treaty does notexpressly prohibit or limit the faculty of making reser-vations, a State signs, ratifies, accedes to or otherwiseaccepts the treaty subject to a reservation or reserva-tions limiting or otherwise varying the obligations ofany article or articles of the treaty the following pro-cedure shall apply in the absence of any other provisionsin the treaty:

1. The parties or the organ of an international orga-nization responsible for establishing the text of thetreaty shall designate a committee, appointed in a man-ner to be agreed by them, competent to decide on theadmissibility of reservations made by any Governmentsubsequent to the establishment of the text of thetreaty.


3. If a reservation is objected to by a State qualifiedto object, then it shall be competent for the Committee,at the request of the State making the reservation, todecide whether the reservation is admissible. If thereservation is declared inadmissible then the State inquestion cannot become a party to the treaty if itmaintains the reservation.

Alternative draft D of article 9

If, in any case where a multilateral treaty does notexpressly prohibit or limit the faculty of makingreservations, a State signs, ratifies, accedes to orotherwise accepts the treaty subject to a reservation

or reservations limiting or otherwise varying the obli-gations of any article or articles of the treaty thefollowing procedure shall apply in the absence of anyother provisions .in the treaty:

1. The parties or the organ of an internationalorganization responsible for establishing the text ofthe treaty shall request the International Courtof Justice to designate under its rules a Chamber ofSummary Procedure to decide on the admissibility ofreservations made by a Government subsequent to theestablishment of the text of the treaty.


3. If a reservation is objected to by a State qualifiedto object, then it shall be competent for the Chamberof Summary Procedure, at the request of the Statemaking the reservation, to decide whether the reserva-tion is admissible. If the reservation is declared inad-missible then the State in question cannot become aparty to the treaty if it maintains the reservation.

Article 10CAPACITY OF THE PARTIES

An instrument is void as a treaty if concluded indisregard of the international limitations upon thecapacity of the parties to conclude treaties.

Article 11CAPACITY OF AGENTS

Constitutional LimitationsUpon the Treaty-Making Power

1. A treaty is voidable, at the option of the partyconcerned, if it has been entered in disregard of thelimitations of its constitutional law and practice.

2. A contracting party may be deemed, accordingto the circumstances of the case, to have waived itsright to assert the invalidity of a treaty concluded indisregard of constitutional limitations if for a prolongedperiod it has failed to invoke the invalidity of thetreaty or if it has acted upon or obtained an advantagefrom it.

3. In cases in which a treaty is held to be invalidon account of disregard of the constitutional limitationsimposed by the law or practice of a contracting partythat party is responsible for any resulting damage tothe other contracting party which cannot properly beheld to have been affected with knowledge of theconstitutional limitations in question.

4. A party cannot invoke the invalidity of a treatyon the ground that it has been entered into in disregardof the constitutional limitations of the other con-tracting party.

5. A party asserting the invalidity of a treaty onaccount of any failure to comply with constitutionallimitations is bound, in case of disagreement, to submitthe substance of the dispute or the question of damagesto the International Court of Justice or to any otherinternational tribunal agreed upon by the parties.

Law of treaties 93

Article 12ABSENCE OF COMPULSION

Treaties imposed by or as the result of the use offorce or threats of force against a State in violation ofthe principles of the Charter of the United Nations areinvalid if so declared by the International Court ofJustice at the request of any State.

Article 13ABSENCE OF FRAUD

1. A treaty procured by fraud is voidable, at theinstance of the International Court of Justice or, if theparties so agree, of any other international tribunal,at the option and at the request of the injured party.

2. The injured party may affirm the treaty thusprocured and ask for damages for the injury causedto it by the fraud of the other party.

Article 14ABSENCE OF ERROR

A treaty entered into under the mistaken belief, notdue to fraud of a contracting party, as to the existenceof a fact substantially affecting the treaty as a whole isvoidable, at the instance of the International Court ofJustice or, if the parties so agree, of any other interna-tional tribunal, at the option and at the request of theparty adversely affected by the mistake.

Article 15CONSISTENCY WITH INTERNATIONAL LAW

A treaty, or any of its provisions, is void if its per-formance involves an act which is illegal under inter-national law and if it is declared so to be by theInternational Court of Juctice

Article 16CONSISTENCY WITH PRIOR TREATY OBLIGATIONS

1. A treaty is void if its performance involves abreach of a treaty obligation previously undertakenby one or more of the contracting parties.

2. A party to a treaty which has been declared voidby an international tribunal on account of its inconsis-tency with a previous treaty may be entitled to damagesfor the resulting loss if it was unaware of the existenceof that treaty.

3. The above provisions apply only if the departurefrom the terms of the prior treaty is such as to interfereseriously with the interests of the other parties to thattreaty or seriously impair the original purpose of thetreaty.

4. The rule formulated under paragraphs (1) and (2)does not apply to subsequent multilateral treaties,such as the Charter of the United Nations, partakingof a degree of generality which imparts to them thecharacter of legislative enactments properly affectingall members of the international community or whichmust be deemed to have been concluded in the inter-national interest.

Article 17WRITTEN FORM

An agreement is void as a treaty unless reduced towritting.

Article 18

REGISTRATION

Treaties entered into by Members of the UnitedNations subsequent to their acceptance of the Charterof the United Nations cannot be invoked by the partiesbefore any organ of the United Nations unless regis-tered, as soon as possible, with the Secretariat of theUnited Nations.

TEXT OF ARTICLESWITH COMMENTS AND NOTES

Part I

Definition and nature of treaties

Article 1

Essential requirements of a treatyTreaties are agreements between States, including

organizations of States, intended to create legal rightsand obligations of the parties.

Comment

The object of this article is not so much a definitionof a treaty as a statement of its essential requirementsand characteristics.

1. " Treaties are agreements..." The consensual—thecontractual — nature of treaties constitutes their prin-cipal characteristic which underlies the rules of custo-mary international law in the matter of the conclusion,the binding force, the validity, the interpretation andthe termination of treaties. The view is occasionallyput forward that in the case of certain multilateraltreaties of a general character approaching in somerespects the process of international legislation orintended to provide a settlement of a general naturethere is room for the application of rules somewhatdifferent from those governing treaties at large. Thisview will be examined in Part VII of this draft whichwill be devoted to a consideration of special types oftreaties and of the question of the extent to whichthey call for application of rules differing from thoseapplied to treaties generally.2 At least one significantpronouncement of the International Court of Justiceshows that that view cannot be dismissed withoutdetailed examination. Thus in the advisory opinionon the Reparation for injuries suffered in the serviceof the United Nations the Court considered the questionwhether the Charter of the United Nations couldlegally endow the United Nations with an internationallegal personality with an effect extending not only toits members but also to States outside the UnitedNations. The Court answered that question in theaffirmative. It said: " On this point, the Court'sopinion is that fifty States, representing the vast majo-rity of the members of the international community,had the power, in conformity with international law,to bring into being an entity possessing objectiveinternational personality, and not merely personalityrecognized by them alone, together with the capacityto bring international claims " (I.C.J. Reports 1949>

8 See footnote t.


p. 185). In a different sphere an authoritative Commit-tee of Jurists appointed in 1920 by the Council of theLeague of Nations to report on the question of thefortification of the Aaland Islands expressed the opi-nion that the Convention of 1856 between GreatBritain, France and Russia embodying the principle ofdemilitarization of these islands was in the nature of" a settlement regulating European interests " andthat, as such, it " constituted a special internationalstatus for the Aaland Islands " with the result thatevery interested State had the right to insist uponcompliance with them (League of Nations OfficialJournal, Special Supplement, 1920, No. 3, pp. 17-19).In the advisory opinion on the International status ofSouth West Africa the International Court of Justiceheld that the international rules regulating the Man-date constituted an international status for the Terri-tory (I.C.J. Reports 1950, p. 132). In his separateopinion in this case Judge McNair cited the Reportof the Committee of Jurists in the Aaland Islands casein support of his view that article 22 of the Covenantof the League of Nations relating to mandates estab-lished a regime which " has more than a purelycontractual basis " with the result that " the territoriessubjected to it are impressed with a special legalstatus " (p. 154).

However, these and similar pronouncements whichlend support to the view that some treaties may, in asense, partake of the character of international legisla-tion reaching out beyond the parties thereto are notinconsistent with the basic proposition that as betweenthe parties such treaties are instruments of a contrac-tual character. The practice in the matter of reserva-tions, which was adhered to by the great majority of theStates in the past, was entirely based on the conceptionof treaties as contracts, namely, that a State appendinga reservation to a treaty in law rejects an agree-ment reached by the signatories and makes a new offer.It is possible that in this particular case (see below,comment to article 9) — as, indeed, with regard to otherspecific cases—it may be desirable, having regard tospecial problems of a multilateral treaty, to modify theautomatic application of a rule otherwise generallyapplicable. However, this fact emphasizes rather thandetracts from the consensual nature of all treaties.The principle that treaties are agreements of a contrac-tual character is believed to be not only consistentwith but also dictated by the preponderant practicein the matter of their validity, interpretation andtermination. The presistency with which internationaltribunals resort to preparatory work for the elucidationof the intentions of the authors of miltilateral treatiesof a constitutional character — at least in cases inwhich that intention cannot be ascertained by othermeans — provides an instructive example of thatattitude.

2. " Treaties are agreements between States, includingorganizations of States . . ."(i) This part of the definition of treaties, in so far as it

excludes individuals and bodies other than orga-nizations of States from being parties to treaties,follows from the fact that States only — actingeither individually or in association — are thenormal subjects of international intercourse andof international law. This means that agreements

between States and individuals or juridical entitieswhich are not States or organizations of Statesare not treaties even if the law governing suchagreements is not the law of any particular Statebut general principles of law independent of anyparticular municipal system — as was, for instance,the case in the Lena Goldfields arbitration decidedin 1930 between the Lena Goldfields Company andSoviet Russia: Annual Digest of Public Interna-tional Law Cases (London), 1929-1930, Case No. 1.In the arbitration between the Sheikh of AbuDhabi and the Petroleum Development Company,decided in 1951, the umpire, Lord Asquith, heldthat no municipal law of any particular countrywas applicable to the interpretation of the conces-sion agreement and that the terms of the agreement" invite, indeed prescribe, the application of prin-ciples rooted in the good sense and common prac-tice of the generality of civilized nations — a sortof 'modern law of nature' "(International andComparative Law Quarterly, 4th Series, vol. I (1952),p. 251). The Concession Agreement betweenPersia and the Anglo-Iranian Oil Company of 1933was described as a " Convention " and the arbitra-tion clause of the agreement provided for theapplication of the law laid down in Article 38 ofthe Statute of the Permanent Court of Interna-tional Justice. But the International Court of Justicedeclined to admit that the agreement partook ofthe nature of a treaty. It held that it was " nothingmore than a concessionary contract between agovernment and a foreign corporation " (I.C.J.Reports 1952, p. 112). Occasionally it may bedifficult to decide whether one of the ContractingParties is a State or a subordinate agency thereofassimilated to a private corporation. This applies,for instance, to the Loan Agreement between theGovernment of the United Kingdom and theExport-Import Bank of Washington, described inthe Agreement as " an agency of the United Statesof America" (United Kingdom, Treaty Series,No. 78 (1950 Cmd. 8126)). It is not feasible toprovide in a general Code of the Law of Treatiesfor border-line cases of this description.

(ii) The reference to " States " in the above definitioncontains an element of ambiguity which it may bedifficult to resolve in the definition itself. Nor-mally " States " would mean " States which areindependent members of the international commu-nity " or " States which are normal subject ofinternational law ". The result of some such inter-pretation of the term would be, for instance, thatagreements made between the protected and theprotecting State, either at the time of the estab-lishment of the protectorate or subsequently,could not be regarded as treaties. However, theyhave been so treated judicially — by both inter-national and municipal tribunals. Rules andprinciples of international law applicable to treatieshave been applied to them. Opinion is dividedwhether States which are protectorates are subjectsof international law. Yet in the case betweenFrance and the United States concerning rights ofnationals of the United States of America inMorocco, decided on 27 August 1952, the Interna-tional Court of Justice seemed to associate itself

Law of treaties 95

with the view, not disputed by either party,that " Morocco, even under the Protectorate, hasretained its personality as a State in internationallaw " (I.C.J. Reports 1952, p. 185). It has beenoften — and correctly — stated that the questionwhether the protected State can conclude certaininternational treaties must be decided accordingto the terms of a particular treaty of protectorate.Agreements between the protecting and the pro-tected State are frequent and there has often beenno disposition, even on the part of the protectingState, to question their international character.Thus, for instance, in the proceedings before thePermanent Court of International Justice inconnexion with its advisory opinion on the Juris-diction of the Courts of Danzig Poland did not seemto question the international character of theagreement concluded between her and Danzig — aprotected State (Publications of the P.C.I.J.,Series B, No. 15, p. 17). On 5 April 1947, theUnited Kingdom and the Sultanate of Muscat andOman (which is a British Protectorate) signed aCivil Air Agreement which was registered with theUnited Nations (United Nations, Treaty Series,vol. 27, p. 287). In 1951 a comprehensive treatyof friendship, commerce and navigation was signedbetween the United Kingdom and the Sultan ofMuscat and Oman and Dependencies (MuscatNo. 1 (1952)", Cmd. 8462). If the protecting andthe protected State while disagreeing as to theinterpretation of a particular provision in theagreement establishing the protectorate or of anytreaty subsequently concluded between themselveswere to agree to submit their dispute to an inter-national tribunal, would the latter be entitled toconsider the agreement to be a treaty and interpretit by reference to rules applicable to the interpre-tation of treaties ? It may be difficult to give anegative answer to this question. Thus, to men-tion once more the judgement of the InternationalCourt of Justice in the case concerning rights ofnationals of the United States of America in Morocco,the Court referred to and interpreted the treatiesconcerned with the establishment of the protec-torate, in particular the Treaty of Fez of 1912between the Sultan of Morocco and France." Under this Treaty," the Court said, " Moroccoremained a sovereign State but it made an arrange-ment of a contractual character whereby Franceundertook to exercise certain sovereign powers inthe name and on behalf of Morocco, and, in prin-ciple, all of the international relations of Morocco "(I.C.J. Reports 1952, p. 188).

Neither is it necessary — or, perhaps, permis-sible — to deny to an instrument the character ofa treaty for the mere reason that a party to it is aState member of a federal State — a subject dis-cussed in greater detail in article 10. Thus accord-ing to the constitutions of many federal Statesmembers of the federation are authorized to enterinto agreement either with one another or, to amuch more limited degree, with foreign States.There has been no disposition, on the part ofmunicipal courts, to deny to such agreements thecharacter of treaties. In general, the relationsbetween members of federations have been consid-

ered by the supreme tribunals of the countries inquestion as governed by international law. Of thistendency an instructive example is provided bythe manner in which the German Staatsgerichtshof(in Bremen v. Prussia, Annual Digest, 1925-1926,case No. 266) and the Swiss Federal Court inCanton of Thurgau v. Canton of St. Gallen (ibid.,1927-1928, case No. 289) applied the doctrine rebussic standibus to member States of a federal State.An international arbitral tribunal is unlikely to beconfronted with the interpretation or applicationof treaties of this description, though it is con-ceivable that it may be called upon to do so eitherincidentally or by way of agreed submission bytwo parties. The International Court of Justicewould probably be unable to do so, having regardto the terms of Article 34 of its Statute — althoughthe matter might not be free of difficulty in thecase of treaties of member States of federal Statessuch as the Ukraine or Byelorussia which haveacquired a degree of formal international persona-lity by nature of the constitution of the federationof which they are members and of their position ininternational organization (see below, comment toarticle 10).

For these reasons, while the term " States " inthis article must be deemed primarily to refer tocontractual agreements concluded by fully inde-pendent States, its effect is not such as to precludeinternational judicial or other agencies from con-sidering as treaties instruments to which the partiesare communities which have been customarilydescribed as States and which as a matter of inter-nal and constitutional law can be considered Statesby virtue of their political cohesion, their internalautonomy and their historical status. On theother hand, whenever such dependent or subordi-nate States purport to conclude a treaty indisregard of international obligations and arrange-ments which limit their contractual capacity theinstrument may be void because of incapacity.The matter — as well as the international positionof federal States generally — is examined in PartIII of the present draft (Conditions of Validity ofTreaties, article 10). The difficulty surroundingthe subject is that it may be as inaccurate to saythat the treaty making power belongs only to fullyindependent States as it may be incorrect to assumethat it belongs to every political unit described bythe name of " State ". It is equally unsatisfactoryto attempt what is no more than a nominal solutionby laying down, as is occasionally done, that thepower to conclude treaties rests with States whichare members of the international community. Thelatter expression is not self-explanatory — unless itsignifies States endowed with plenitude of interna-tional rights, including the right to conclude treatiesin which case the statement merely begs the ques-tion. For this reason the formulation adopted inarticle 1 is necessarily of a general character—leav-ing it to the application of article 10 which isconcerned with the capacity of the parties toresolve in a pragmatic manner the particularsituations which may arise.8

8 Up to the passing of the Act of 3 March 1871 whichdenied to Indian tribes the status of independent nations

96 Yearbook of the Internationa] Law Commission, Vol. II

3. " Treaties are agreements between States, includ-ing organizations of States, . . ." States can exercisetheir capacity to conclude treaties either individuallyor when acting collectively as organizations created bya treaty. It follows that agreements concluded byinternational organizations with States or other inter-national organizations must be regarded as treatiesprovided that they otherwise qualify as treaties underthe terms of this article. These include treaties con-cluded by the United Nations * with members of theUnited Nations (such as the Agreement between theUnited Nations and the United States of Americaregarding the Headquarters of the United Nations:United Nations, Treaty Series, vol. II, p. 11), and withStates which are not members of the Inited Nations(such as those with Switzerland on the Privileges andImmunities of the United Nations: ibid., vol. 1, p. 163;concerning the Ariana Site, ibid., p. 153; and concerningpostage stamps for the Geneva Office of the UnitedNations: ibid., vol. 43, p. 327); and a number of agree-ments with specialized agencies and other internationalorganizations. They also include agreements concludedbetween or by international organizations other thanthe United Nations such as those concluded by thespecialized agencies between themselves (such as theagreement of 1948 between the Food and AgricultureOrganization and the World Health Organization pro-viding for close co-operation and consultation inmatters of common concern: ibid., vol. 76, p. 172), orwith States (for instance, the agreement and accompa-nying instruments between the International LabourOrganisation and Switzerland of 27 May 1948: ibid.,vol. 15, p. 377.) These agreements to which the UnitedNations or a specialized agency are parties have beenproperly registered under the provision of Article 102of the Charter which requires the registration of treatiesand international agreements. It has been suggestedthat the circumstance which makes them registrable isnot that the United Nations or a specialized agency area party but that at least one party is a member of theUnited Nations. However, a considerable number ofagreements have been properly registered to which onlythe United Nations and specialized agencies are par-ties.6 Neither has the use of the instrumentality ofregistered agreements been limited, among organiza-

"with whom the United States may contract by treaty "numerous treaties had been concluded between theUnited Stales and Indian tribes and ratified by thePresident with the consent and approval of the Senateaccording to a procedure identical with that followed withregard to ordinary treaties. For details see H. Reiff inAmerican Journal of International Law, vol. 30 (1936),pp. (37-69. See also R. Octavio in Recueil des Corns del'Academie de droit international, 1930 (I), p. 252. If theUnited States had agreed, prior to 1871, to submit to aninternational tribunal a dispute with an Indian tribeconcerning the interpretation of a treaty concluded withit and duly ratified by the President as a treaty, wouldthat Tribunal have been prevented from considering itas such from applying to it rules of international law ?

* See generally C. Parry, « Treaty Making Power ofthe United Nations „ in British Year Book of InternationalLaw, vol 26 (1949), pp. 108-149.

4 The reasons which, it may be assumed, have promptedthe Secretary-General to register these and other interna-tional agreements to which specialized agencies are partiesare cogently stated in an article contributed to theBritish Year Book of International Law, vol. 25 (1948),by Mr. O. Schachter, a member of the Secretariat of theUnited Nations (pp. 130-132).

tions of States, to specialized agencies as may be seenfrom the agreement of 25 January 1951 between theUnited Nations International Children's EmergencyFund and the Government of Paraguay concerning theactivities of the former in Paraguay (ibid., vol. 79,p. 10). On occasions a number of international orga-nizations appear as a contracting party on the oneside and a State on the other.6 International practiceshows examples, even prior to the establishment of theUnited Nations, of agreements concluded betweenStates and international organizations or internationalorgans. Thus on 28 June 1932 an agreement, registeredwith the League of Nations, was concluded betweenYugoslavia, Romania and the International Commis-sion of the Danube concerning the setting up of specialservices at the Iron Gates (League of Nations, TreatySeries, vol. 140, p. 191; M. Hudson, InternationalLegislation, 6, p. 47). On 4 August 1924, the Repara-tions Commission concluded a comprehensive agreementwith Germany (League of Nations, Treaty Series, vol. 41p. 432; M. Hudson, op. cit., vol. 2, p. 1301). There areother examples of such treaties.

There appears to be no decisive reason why, subjectto any modification as examined in Part VII of thisdraft of a Code of the Law of Treaties,' the rules other-wise applicable to treaties should not apply to thoseconcluded by or between international organizationscreated by and composed of States. On the contrary,it would seem desirable to direct political and juristiceffort to making available, in the interest of the pro-gressive integration of international society on afunctional basis, the experience of the law of treatiesto the collective activities of States in their manifoldmanifestations.8 This is so also for the additionalreason that the part of multilateral treaties is likelyto grow on a world of growing inter-dependence — notonly because of the emergence of new interests callingfor international regulation of general character, butalso because in many cases the essential uniformity oridentity of the subject matter of questions regulated inthe past by bilateral agreements may increasingly callfor the adoption of the machinery of multilateraltreaties as being best suited to give effect to suchuniformity or identity. The achievement of thatobject will not be facilitated by questioning the funda-mental quality of treaties in relation to the instrumentsin question.

4. " Treaties are agreements between States, includ-ing organizations of States, intended to create legalrights and obligations. . ." There exist formal interna-tional instruments solemnly declared or signed byrepresentatives of States or unilaterally proclaimed by

6 For instance, in the Basic Agreement of 15 December1950 between the United Nations, the Food and Agri-culture Organization, the International Civil AviationOrganisation, the International Labour Organization, theUnited Nations Educational, Scientific and CulturalOrganization and the World Health Organisation, andthe United Kingdom being the Administrative Power ofCyrenaica and Tripolitania, for the provision of technicalassistance: United Nations, Treaty Series, vol. 76, p. 122.

7 See footnote 1.8 Article 748 of Fiore's International Law Codified

lays down, in the fifth edition which appeared in 1915,that the capacity to conclude treaties may be " possessedby associations to which international personality hasbeen attributed ".

Law of treaties 97

them which, however, are in the nature of statementsof policy rather than instruments intended to laydown legal rights and obligations. Examples of suchinstruments are the so-called Atlantic Charter ofAugust 1941 in which the President of the UnitedStates and the British Prime Minister representingHis Majesty's Government in the United Kingdomagreed " on certain common principles in the nationalpolicies of their respective governments on which theybase their high hopes of a better future for the world "(American Journal of International Law, vol. 35 (1941),Special Supplement, p. 191); the Agreed Declarationby the President of the United States of America, thePrime Minister of the United Kingdom of Great Britainand Northern Ireland, and the Prime Minister of Can-ada relating to Atomic Energy, signed at Washingtonon 15 November 1945 (United Nations, Treaty Series,vol. 3, p. 131); the Moscow Instrument of 1 Novem-ber 1943 made by the Heads of the United States,British and Soviet Governments containing the solemndeclaration relating to the punishment of war criminals(Cmd. 6668); and the Universal Declaration of HumanRights adopted by the General Assembly of the UnitedNations in 1948. In some cases the absence of a truecontractual nexus in the instruments in question issomewhat obscured by the form, expressed in thetraditional form of agreement, given to the instrument.Thus the communique on the Moscow Conference,signed on 27 December 1945, and the Report of theMinisters of Foreign Affairs of Soviet Russia, theUnited States of America and the United Kingdom,dated 26 December 1945, was registered with theUnited Nations (United Nations, Treaty Series, vol. 20,p. 272) as " together constituting an agreement relatingto the preparation of Peace Treaties and to certainother problems''. The registered text of the instrumentstates that it " came into force on 27 December 1945,by signature ". Yet the communique which forms partof the instrument merely stated that " discussionstook place on an informal and exploratory basis andagreement was reached on the following questions ".The legal nature of assurances given in an instrumentmay be problematical notwithstanding the fact thatit is couched in the form usually given to bindingagreements such as an exchange of notes.9 The sameapplies to cases in which the formal character of anotherwise general undertaking is emphasized by thefact that, like an ordinary treaty, it contains provisionsfor adhesion by other States. This was the case, forinstance, with regard to the " Declaration by theUnited Nations " of 1 January 1942 subscribing to the

9 On 4 June 1940 the Prime Minister of the UnitedKingdom issued a statement to the effect that should theBritish Isles become untenable for British ships of war,the British Fleet would in no event be surrendered orsunk but would be sent overseas for the defence of otherparts of the Empire. On 29 August 1940 the followingenquiry was received by the British Ambassador to theUnited States: " The Government of the United Stateswould respectfully enquire whether the foregoing state-ment represents the settled policy of the British Govern-ment ". An affirmative answer was given. The enquiryand the answer were published in the form of an exchangeof notes: Department of State Bulletin, 7 September 1940,vol. I l l , p. 63, p. 191; American Journal of InternationalLaw, vol. 35 (1941), supplement, p. 37.

common programme of principles and purposes em-bodied in the Atlantic Charter, pledging the full employ-ment of the resources of each government in thecommon struggle, and undertaking not to make aseparate armistice and peace with the enemy (AmericanJournal of International Law, vol. 36 (1942), Supple-ment, p. 191).

The fact that the obligation provided for in the in-strument can be fulfilled by a somewhat nominal actof the parties does not necessarily detract from itscharacter as a treaty. To this category belong treatiesembodying the obligation of consultation such as theNine-Power Treaty of 6 February 1922 concerningChina. Similarly an undertaking to negotiate impliesa legal obligation to do so although it necessarilyleaves a wider margin of discretion to the State boundby it.10 A legal duty must also be deemed to exist inthose marginal cases in which, by virtue of the instru-ment in question, a State reserves for itself the rightto determine both the existence and the extent of theobligation undertaken by it, as, for instance, in thecase of some declarations of acceptance of the optionalclause of Article 36 of the Statute of the InternationalCourt of Justice in which the declaring States havereserved for themselves the right to determine whethera matter falls within their domestic jurisdiction. Forsuch determination must take place in accordancewith the implied obligation to act in good faith. Thefact that the interested State is the sole judge of theexistence of the obligation is, while otherwise ofconsiderable importance, irrelevant for the determina-tion of the legal character of the instrument.11 Thisis also the position with regard to treaties, suchas the North Atlantic Treaty of 4 April 1949, in whicheach party agrees to assist others by " such action as it

10 Also, although the Declaration of Denmark, Finland,Iceland, Norway and Sweden of 27 October 1938 for thepurpose of establishing similar rules of neutrality did notprobably amount to a reciprocal treaty obligation, withregard to the substance of the matters regulated therein,the Declaration (which was registered with the Leagueof Nations: League of Nations, Treaty Series, vol. 188,p. 293; M. Hudson, International Legislation, vol. VIII,p. 56) included an clement of obligation by virtue of theagreement not to modify such rules "without first giving,if possible, sufficient notice to the other four Governmentsto permit an exchange of views on the matter".

11 The position may be different when the effectivefulfilment of the obligation does not depend upon thewill of the Contracting State. Thus it has been held, ineffect, by the International Court of Justice in the advi-sory opinion concerning the status of South West Africathat an obligation to conclude an agreement is a contra-diction in terms and cannot legally exist. The Courtsaid: " An ' agreement' implies consent of the partiesconcerned, including the mandatory Power in case ofterritories held under Mandate . . . The parties must befree to accept or reject the terms of the contemplatedagreement. No party can impose its terms on the otherparty " (I.C.J. Reports 1950, p. 139). There is, however,room for the view that, like any other obligation, anagreement to conclude an agreement must be interpretedin good faith and in a reasonable manner and that, accord-ingly, the State undertaking to conclude an agreement islegally bound to fulfil that undertaking in so far as it liesin its power. There is an obligation to accept an agree-ment offered by the other party if its terms are such thatan impartial tribunal would consider them as taking intoaccount the legitimate interests of both parties. The


deems necessary " in case of attack directed againstthem. In other cases, as with regard to the reservationof action in self-defence proclaimed by some States inconnexion with their signature of the General Treatyfor the Renunciation of War of 27 August 1948 andcoupled with an assertion of the right of these Statesto determine when the contingency of recourse toself-defence has arisen, the freedom of action, thusclaimed, refers only to the decision called for by theexigencies of the situation and permitting of no delay.As in other cases of self-defence, it does not excludethe final impartial determination of the legitimacy ofthe action thus taken. There is in the instruments ofthis description no ground for questioning their legalcharacter as treaties.

On the other hand the absence of a true treatyrelationship, notwithstanding the formality and thesolemnity of the instrument, may be apparent from theterms, the designation and the history of the instrumentin question. This was probably the position withregard to the Agreement — often referred to as the

awards in the Tacna-Arica arbitration of 1925 betweenChile and Peru {Annual Digest, 1925-1926, case No. 269)and in the Spanish Zone of Morocco Case between GreatBritain and Spain (Annual Digest, 1923-1924, case No. 8)seem to affirm the legal nature of pactum de contrahendo.In its Advisory Opinion of 18 October 1931 concerningthe Railway Traffic between Poland and Lithuania, thePermanent Court of International Justice stated asfollows:

" The Court is indeed justified in considering that theengagement incumbent on the two Governments inconformity with the Council Resolution is not onlyto enter into negotiations, but also to pursue them asfar as possible, with a view to concluding agreements . . .But an obligation to negotiate does not imply an obli-gation to reach agreement, nor in particular does itimply that Lithuania, by undertaking to negotiate, hasassumed an engagement", and is in consequence obligedto conclude the administrative and technical agreementsindispensable for the establishment of traffic on theLandwarow-Kaisiadorys railway sector." (Publicationof the P.C.I.J., Series A/B, No. 42, p. 116.)

The relevant part of the Resolution of the Council was arecommendation to " the two Governments to enter intodirect negotiations as soon as possible in order to establishsuch relations between the two neighbouring States aswill ensure ' the good understanding between nations uponwhich peace depends' ". However, where the terms ofthe pactum de contrahendo are precise and mandatory and,in particular, where they are coupled with the conferment,upon an international tribunal, of jurisdiction in disputesarising out of the interpretation or application of thetreaty, the legally binding character of the obligationseems to admit of little doubt. Thus article 9 of theTreaty of Peace with Japan of 8 September 1951 providedthat " Japan will enter promptly into negotiations withthe Allied Powers so desiring for the conclusion of bila-teral and multilateral agreements providing for theregulation or limitation of fishery and development offisheries on the high seas". Identical provisions arecontained in article 12 (in the matter of trading, maritimeand other commercial relations) and article 13 (in thematter of civil air transport). Article 22 of the Treatyconfers upon the International Court of Justice jurisdic-tion in disputes, not otherwise settled, concerning theinterpretation or execution of the treaty. There is adefinite obligation and no mere paclum de contrahendo incases such as articles 284 and 354 of the Treaty of Ver-sailles in which a party agrees to accept a treaty orarrangement to be placed before it.

Lansing-Ishii Gentlemen's Agreement of 2 November1917 between the United States and Japan on thesubject of immigration. On occasion, as was the casewith regard to the Universal Declaration of HumanRights approved by the General Assembly in 1948,the absence of a legal obligation is not open to doubtwhen the parties expressly disclaim the intention toassume an obligation of this nature. In all such casesthe form given to an instrument is not decisive forthe determination of its legal character as a treaty. Inthe event of a dispute on the subject it must properlybe a question for judicial determination whether aninstrument, whatever its description, is in fact intendedto create legal rights and obligations between the par-ties and as such coming within the category of treaties.The circumstance that it has been registered with theUnited Nations, by one or more of the parties, as aninternational treaty or engagement is not decisive fordetermining this question — although the fact of itsregistration as the result of joint action by the partiesraises a strong presumption in that direction.

5. " Treaties are agreements between States, includ-ing organizations of States, intended to create legalrights and obligations of the parties." As a rule, treatiescreate legal rights and obligations between the partiesonly — a subject which will be examined in detail inPart IV of this draft relating to the operation oftreaties.1* However, the principle that treaties areinstruments intended to create legal rights and obliga-tions between the parties thereto does not necessarilymean that their legal effect is necessarily restricted tothe parties. Attention has been drawn above (para-graph 1) to the pronouncement of the InternationalCourt of Justice in the sense. The report, alreadyreferred to, of the Commission of Jurists appointedin 1920 by the Council of the League of Nations inconnexion with the Aaland Islands shows in a differentsphere — in the creation of a so-called public law ofEurope in relation to a general international settle-ment — the possibility of the same overreachingeffect of treaties. Some instruments of a general, quasi-legislative character appear to claim to regulate theconduct of States not parties thereto. To this categorybelongs Article 2 (6) of the Charter of the United Nationswhich lays down that " the Organization shall ensurethat States which are not Members of the UnitedNations act in accordance with the Principles (ofArticle 2) so far as may be necessary for the main-tenance of international peace and security ". TheArticle in question imposes no legal obligation uponnon-member States. It claims for the United Nationsthe right to regulate, in the interest of the maintenanceof international peace and security, the conduct ofnon-member States. It is possible that, with thegrowing integration of international society, collectivetreaties may, by general consent, be held to producenot only actual compliance but also legal rights andobligations in relation to States which are not partiesthereto. To that extent, without losing their characteras treaties as between the parties, they may alsobecome instruments of international legislation prop-erly so called.

12 See footnote 1.

Law of treaties 99

Notes

1. Treaties as agreements. This element of thedefinition of a treaty is open to the objection that itfails to distinguish between the purely contractualtype of treaty and the so-called legislative type, thetraites-lois. The Special Rapporteur ventures to hopethat, in the present context, that objection will not beadvanced. For whatever may be the legal conse-quences of that distinction — a controversial matterexamined in part VII of this draft1S — it does notalter the fact that at present international instrumentscreating legal rights and obligations have their sourcein the agreement either of the parties who accept themin the first instance or of those who adhere to them. Itmay be noted, however, in this connexion that thegeneral trend of legal opinion is to deny any essentialdifference — for the purpose of the elaboration ofrules governing their creation, operation and termina-tion — between the two types of treaties.1* Theessence of both is that they lay down rules governingthe conduct of the parties.

2. Treaties as agreements to which organizations ofStates are parties. The expression " organizations ofStates " is here intended as synonymous with theexpression " international organizations " conceivedas entities which are created by treaty between States,whose membership is composed primarily of States,which have permanent organs of their own, and whoseinternational personality is recognized either by theterms of their constituent instrument or in virtue ofexpress recognition by a treaty concluded by themwith a State.

The question, already referred to in the comment,whether the Code on the Law of Treaties to be draftedby the Commission should concern itself with treatiesconcluded by international organizations was discussedby the Commission during its sessions in 1950 and 1951.The view which it provisionally adopted was thatagreements by or between organizations of States donot fall within the province of the law of treaties tobe formulated by the Commission. That view, it issubmitted, needs revision. The fact of the existenceof the very great number of agreements concluded byand between the various international organizationswould render incomplete and deficient any codifica-tion of the law of treaties which would leave suchagreements out of account. Numerous agreements ofthis type have been entered into by the United Nationsas such. A substantial number of them have beenconcluded by the Economic and Social Council inpursuance of Article 63 of the Charter which providesthat the Economic and Social Council may enter intoagreements with specialized agencies defining theterms on which the agency concerned should be

13 See footnote l.j14 See, tor example, Harvard Draft Convention, Harvard

Law School, Research in International Law, III, Law ofTreaties, American Journal of International Law, vol. 29(1935), Supplement (general comment to article 1, pp. 688,689) ; Ch. Rousseau, Principes generaux de droil interna-tional public, vol. 1 (1944), p. 136 ; Balladorc Pallieri,Recueil des Cours de l'Acaddmie de droit international,vol. 74 (1949) (I), p. 513.

brought into relationship with the United Nations.1"A large number of agreements have been concludedbetween the various specialized agencies such as theInternational Labour Organisation, the Food andAgriculture Organization, the United Nations Educa-tional, Scientific and Cultural Organization and theWorld Health Organization. These agreements arewhat has been described as " essentially treaties ofamity and goodwill"16 inasmuch as they provide forclose co-operation and consultation in matters ofcommon concern. That feature does not deprive themof the character of treaties. The same applies, moreconspicuously, to the great number of agreementsconcluded between the specialized agencies with variousStates concerning the legal status and the immunitiesof these organizations, as well as in other matters,within the territories of the States concerned. Theseinclude agreements between the United Nations andthe United States of America, the United Nations andSwitzerland, the United Nations Educational, Scienti-fic and Cultural Organization and France, the Inter-national Labour Organization and Switzerland, theWorld Health Organization and Switzerland, the Foodand Agriculture Organization and Italy, the Inter-national Civil Aviation Organization and Canada,the International Refugee Organization and Switzer-land, the International Telecommunication Unionand Switzerland, and the Universal Postal Union andSwitzerland. An analysis of any of these treatieswill show how closely they approach the traditionaltype of treaty. Thus the final clauses of the agreementconcluded between the Swiss Federal Council and theWorld Health Organization on 12 January 1949 andregulating the legal status of the World Health Orga-nization in Switzerland read like the final clauses ofmost other treaties with regard to settlement ofdisputes as to the interpretation and application of theagreement, entry into force, approval by the competentconstitutional authorities, modification and denuncia-tion of the agreement, and the like (United Nations,Treaty Series, vol. 26, p. 333). The degree to whichagreements concluded by international organizationsexhibit and have been judicially treated as exhibitingthe common characteristics of treaties may be gaugedfrom the manner in which Judge Read in his opinionin the case concerning the international status ofSouth West Africa considered the question whetheras the result of a series of acts and declarations of theGovernment of South Africa an agreement had beenbrought about between the United Nations and

16 These agreements are now in force between theUnited Nations and ten specialized angencies, namely,the International Labour Organisation, United NationsEducational, Scientific and Cultural Organization, Foodand Agriculture Organization, International Civil Avia-tion Organization, the Fund, the Bank, World HealthOrganization, the Universal Postal Union, InternationalTelecommunication Union and World MeteorologicalOrganization. A detailed study of the history of theseagreements and an analysis of their provisions is containedin the Report of Action taken in pursuance of the Agreementsbetween the United Nations and the Specialized Agencies(Official Records of the Economic and Social Council,ninth Session, E/1317). See also Sharp, InternationalOrganization, vol. 1 (1947), pp. 460-474 and 2 (1948),pp. 247-267.

16 C. W. Jenks, British Year Book of InternationalLaw, vol. 28 (1951), p. 68.


South Africa. He said: " It is unnecessary to discussthe juridical nature of an international agreement. Itis sufficient, for the present purposes, to state that an' arrangement agreed between ' the United Nationsand the Union [of South Africa] necessarily includedtwo elements: a meeting of minds; and an intentionto constitute a legal obligation " (I.C.J. Reports 1950,p. 170).

Agreements by and between international organiza-tions have now become a prominent feature of interna-tional relations. The international personality ofinternational organizations — i.e., of organizationsof States — is becoming generally recognized. Thecapacity to conclude treaties is both a corollary ofinternational personality and a condition of the effec-tive fulfilment of their functions on the part of theinternational organizations. It is, for instance, withthe help, inter alia, of some such chain of reasoningthat the International Court of Justice in the advisoryopinion on Reparation for injuries suffered in the serviceof the United Nations affirmed the international per-sonality of the United Nations. After referring to theConvention on the Privileges and Immunities of theUnited Nations of 1946 which " creates rights andduties between each of the signatories and the Orga-nization ", it said: " It must be acknowledged that theMembers [of the United Nations], by entrusting certainfunctions to it, with the attendant duties and respon-sibilities, have clothed it with the competence requiredto enable those functions to be effectively discharged."(I.C.J. Reports 1949, p. 179.) The treaty-makingpower of international organizations is one of thesignificant instruments for their proper functioningand it seems desirable that that instrument shouldreceive adequate recognition and elaboration. In fact,there would appear to be no reason why, in the sphereof the treaty-making power, States acting collectivelyshould not be in the position to do what they can doindividually. Quite apart from the function of theInternational Law Commission to develop internationallaw, the treaty-making power of international organiza-tions has become so much part of international prac-tice that the inclusion, within the category of treaties,of the agreements made by and between them willcome in fact within the function of the Commissionconcerned with the codification of existing law. Itwould be unsatisfactory, it is submitted, to adopt theposition that although agreements made by interna-tional organizations are treaties they ought, for onereason or another, somehow to be left out of the orbitof the Law of Treaties as codified by the InternationalLaw Commission. Any such limitation of the codifica-tion of the law of treaties is probably as open toobjection as the exclusion, from its purview, of ex-changes of notes— a subject discussed, from this pointof view, in the comment to article 2. Reasoning of thatcharacter might lead to the exclusion of what someconsider to be legislative treaties — which, in theiropinion, differ radically from the traditional type ofcontractual treaties. The result might be to reduce toinconspicuous dimensions the entire task of codifica-tion of the law of treaties. The work of the Commissionon the subject ought to be complete both as a matterof principle and as a matter of assisting in the develop-ment of what is becoming a growing and beneficientaspect of relations of States. For these reasons although

at its session of 1951 the Commission seems to havedecided not to include in the codification of the law oftreaties agreements made by and between internationalorganizations, it is submitted that that decision oughtnot to be adhered to. In so far as, in particular matters,specific types of treaties require regulation differingfrom that applying to treaties generally, the considera-tion and formulation of such modifications falls pro-perly within the purview of codification.

3. The wording " agreements between States,including organizations of States " has not beenadopted without a previous consideration of alternativeformulations. The purpose of the wording as formu-lated is to lay down, in the first instance, that onlyStates or organizations of States can be parties totreaties. The present formulation is also intended toexclude the inference that it is sufficient if an instru-ment is concluded, on the one part, by a State or anorganization of States and that the other party neednot be a State or an organization of States. Thewording " agreements between States and (or) orga-nizations of States " might equally lend itself to a wronginterpretation. In fact there are three kinds of agree-ments, from the point of view of the parties thereto,contemplated in the present article: (1) agreementsbetween States; (2) agreements between States andorganizations of States; (3) agreements betweenorganizations of States. It is believed that the presentwording includes all three categories.

4. No reference is made in this article to the require-ment adopted in article 1 (a) of the Harvard DraftConvention and, for a time, in the tentative articlesapproved by the Commission that an instrument, inorder to be a treaty, must establish a relationshipunder international law. The apparent intention ofthat formula was that, in order to constitute a treaty,the instrument must, according to the intention of theparties or otherwise, be governed by rules of inter-national law. The reason underlying the view thusadopted was, it would seem, the existence of agreementswhich regulate matters usually falling within thesphere of private law such as loans of money, purchaseof foods, regulation of prices, leases or purchase ofimmovable property, and the like. With the growthof economic activity under the management of theState the scope of agreements of this kind has tendedto increase. This applies, in particular, to the widerange of so-called commodity agreements. Yet, it isdoubtful whether such agreements can be put in aspecial category so far as the law applicable is concerned.They are all governed, in the last resort, by interna-tional law. It is not the subjection of an agreementto international law which makes of it a treaty. It isits quality as a treaty which causes it to be regulatedby international law. This is so even if — which is anexceptional occurrence — the parties stipulate that itshall be governed by the municipal law of one of them.For in that case the specific law thus agreed upon isthe consequence of the will of the parties. As theresult of some such provision the law applicable istransformed into conventional international law expres-sing, in the terminology of Article 38 of the Statute ofthe International Court of Justice, " rules expresslyrecognized by the contesting parties". Usually,however, such transactions are governed by general

Law of treaties 101

principles of law applicable to them and the rulesrelating to the interpretation of treaties. For thisreason, provided that the instrument otherwise fulfilsthe requirements of a treaty, it establishes ipso factoa relationship under international law between theStates or organizations of States in question. Thisapplies even to the case, exceptional in modern condi-tions, of treaties containing marriage arrangementsbetween members of reigning houses.17 The definitionof a treaty as formulated in article 1 is wide enough toinclude treaties of this description.

Article 2Form and designation of a treaty

Agreements, as defined in article 1, constitutetreaties regardless of their form and designation.

Alternative version of article 2[Agreements, as denned in article 1, constitute

treaties regardless of their form and designation andregardless of whether they are expressed in one ormore instruments. A treaty obligation may be createdby a unilateral instrument accepting an offer or fol-lowed by acceptance.]

Comment1. The principle laid down in this article is generally

recognized. While the terms " treaty ", " convention "," agreement " and " exchange of notes " are the mostcommon and while they account for the great majority— probably four-fifths — of instruments of a contrac-tual character to which States or organizations ofStates are parties, a great variety of other terms areoccasionally also used. They include such terms as" protocol ", " declaration ", " statute ", "finalact"," general act ", " pact ", " modus vivendi", " arrange-ment ", " covenant ", " exchange of notes consti-tuting an agreement ", " compromis d'arbitrage "," additional articles ", " agreed minutes ", " instru-ment ", and others.18 The terms used are of no legalconsequence, so long as the instrument in questioncan properly be interpreted as creating legal rights andobligations. As the Permanent Court of InternationalJustice said in its advisory opinion concerning theCustoms regime between Germany and Austria, " fromthe standpoint of the obligatory character of interna-tional agreements, it is well known that such engage-ments may be taken in the form of treaties, conven-tions, declarations, agreements, protocols or exchangesof notes " . " In its judgement on the Interpretation

17 Such as the treaty of 27 October 1923 between GreatBritain and Sweden concerning the marriage of LadyLouise Mountbatten to the Crown Prince of Sweden. Thetreaty, signed by the plenipotentiaries of the two sove-reigns, was subject to ratification and was registered withthe League of Nations (League of Nations, Treaty Series,vol. 22, p. 387). For other examples of such treatiessee Ch. Rousseau, Principes gineraux de droit internationalpublic, vol. 1 (1944), p. 145.

18 See below, paragraph 5 of the note to the presentarticle.

19 Publications of the P.C.I.J., Series A/B, No. 41.Professor Hudson has pointed out that " this list was notintended to be exhaustive and that the names chosen foran instrument, frequently due to political or casualconsiderations, is seldom of juridical significance ". SeeM. Hudson, Permanent Court of International Justice, 1920-1942 (New York, 1943) p. 632.

of the Statute of the Memel Territory the PermanentCourt of International Justice declined to attachimportance to the fact that the Statute was in theform of a Lithuanian municipal enactment and gaveits decision on the basis that the Statute was " aconventional arrangement binding upon Lithuania andthat it must be interpreted as such " (Publications ofthe P.C.I.J., Series AjB, No. 49, p. 300).

2. Neither is it of importance that the assumptionof obligations (and, in some cases, of correspondingrights) takes place in the form of a unilateral declarationrelating to a pre-existing instrument such as thevarious declarations recognizing as compulsory thejurisdiction of the International Court of Justice inconformity with Article 36, paragraphs 2 and 3, of itsStatute; or the declaration of Switzerland of 6 July 1948(United Nations, Treaty Series, vol. 17, p. I l l ) accept-ing the conditions determined by the General Assem-bly of the United Nations for Switzerland to becomea party to the Statute of the International Court ofJustice; or the various " instruments of adherence "to the United Nations, such as those of Iceland,Sweden, Siam and others (ibid., vol. 1, pp. 41, 43, 47).Such unilateral declarations are in some cases in thenature of adherence or accession to a pre-existingtreaty (see below, article 7). This is so even if, as inthe case of the declarations under the so-called optionalclause of Article 36 of the Statute of the InternationalCourt of Justice, the terminology used does not ex-pressly refer to adhesion in its technical sense. For itis clear that the totality of the declarations underArticle 36 of the Statute of the Court constitutes atreaty as between the parties making the declaration.They have been so interpreted by the InternationalCourt of Justice, namely, by reference to the paramountconsideration of the intention of the parties. This isso notwithstanding the fact that as the text of thedeclaration is not " a treaty text resulting from nego-tiations between two or more States ", but " is theresult of unilateral drafting " by one party, particularrules of interpretation of treaties may not be applicable.(Judgement of the International Court of Justiceof 22 July 1952 in the Anglo-Iranian Oil Co. case(preliminary Objection): I.C.J. Reports 1952, p. 105.)The same applies to such instruments as the declara-tions made by various States and addressed to theCouncil of the League of Nations in the matter ofprotection of minorities. In its advisory opinionof 6 April 1935 concerning the Minority Schools inAlbania the Permanent Court of International Justiceinterpreted the Albanian Declaration on the subject asif it were one of the Minorities Treaties (Publicationsof the P.C.I.J., Series A/B, No. 62). In fact, thedeclaration substantially reproduced the text of thesetreaties. It provided for the compulsory jurisdictionof the Permanent Court of International Justice inthe matter of disputes as to questions of law or factarising out of its provisions. As in the case of manyother treaties, its ratification was deposited with theSecretary-General of the League. It may be addedthat these and similar declarations demonstrate alsothat a specifically expressed, exact reciprocity orcorrespondence of rights and obligations is not anessential prerequisite of a treaty. The benefits whichaccrue to a State from the assumption of an obligationneed not appear directly either in the instrument in


question or in any other instrument. Thus the declara-tion made by the Kingdom of Iraq on 30 May 1932concerning the minorities in Iraq was made in pur-suance of a resolution adopted by the Council of theLeague of Nations requesting such a declaration asa condition precedent to the termination of the Mandate(League of Nations, Official Journal, 1932, p. 474).The Council then approved the text of the declaration— which, in article 16, stated that its provisionsconstituted " obligations of international concern ".In circumstances such as these — i.e., of the existenceof a resolution of the Government, of a declarationadopted in pursuance of the resolution, and of afurther resolution approving the declaration — the" obligations of international concern " must beregarded as partaking of the character of a treaty.20

An apparently unilateral assumption of obligationswhich accepts the provisions of an already existinginstrument or which is followed by acceptance of theparty to which it is addressed constitutes a treatyobligation. This is also one of the reasons why,apart from cogent evidence of the practice of States,exchanges of notes must be regarded as constitutinga treaty (see below, note 4). The following passagefrom the report of the Rapporteur of the San FranciscoCommittee IV/2, which is concerned with the registra-tion of treaties under Article 102 of the Charter, maybe noted in this connexion: " The word ' agreement'must be understood as including unilateral engagementsof an international character which have been acceptedby the State in whose favour such an engagement hasbeen entered into."21 Thus viewed, the object ofarticle 2 is, it is believed, adequately expressed by thestatement that "agreements, as defined in article 1,constitute treaties regardless of their form and designa-tion ". The alternative version, which is enclosedin brackets, merely elaborates the principle inherentin it. The alternative version of the article is attachedin case it should be considered that such elaborationis necessary.

3. The designation of an instrument is irrelevantnot only in so far as its character as a treaty is concernedbut also in respect of the rules governing its conclusion,the conditions of its validity, its operation and inter-pretation, and its termination. Thus, as already stated,it does not follow from the mere fact that an instrumentis described as an exchange of notes that it does notrequire ratification. The normal absence of the require-ment of ratification in instruments of this descriptionfollows from the circumstance that as a rule theyexpressly dispense with ratification by providing thatthey shall enter into force on a specified date or onthe completion of the exchange of notes, i.e., on theacceptance and confirmation by one contracting partyof the document submitted and drafted — usually asthe result of a joint effort — by the other party.

4. The same applies to those differences in the formof treaties which spring from the fact that some of

10 For a different view as to the nature of these and simi-lar unilateral declarations see the comment to article 4 ofthe Harvard Draft Convention. Harvard Law School,Research in International Law, III, Law of Treaties inAmerican Journal of International Law, vol. 29 (1935),Supplement.

" UNCIO, vol. 13, p. 705 (Doc. 933, IV/2/42 (2)).

the parties to them are Heads of States while in othercases the parties are designated as the respectiveStates or Governments, or Heads of Governments, or-delegations of Governments, or governmental depart-ments, or heads of departments. Thus, for instance,,there is no rule of international law which lays downthat the answer to the question as the requirement ofratification depends on who is designated as a partyto the treaty — although according to the practice ofsome States treaties concluded by the Head of theState in person or between departments are not as arule considered to require ratification. It is impossibleto say that according to international practice anyparticular type of treaty requires a particular descrip-tion of parties, although as a rule, but not invariably,,political treaties of importance — such as treaties ofalliance — are concluded between Heads of States.Occasionally, for reasons of internal constitutionallaw, some States prefer to adhere to a particular descrip-tion. Thus, for a time, members of the BritishCommonwealth of Nations attached importance totreaties being concluded in the form of agreementsbetween Heads of States and States as such." OtherStates, such as the United States of America, havepreferred, without insisting on such preference in theface of contrary wishes of the other contracting parties,to describe the United States of America as such as.party to the treaty. In the case of the General Treatyfor the Renunciation of War of 27 August 1928,which was concluded between Heads of States, Japanwas reported to have raised objections to article 1 ofthe Treaty in which the parties declared, " in thenames of their respective peoples ", that they con-demned war as an instrument of national policy. Theobjection was raised on the ground that under theJapanese constitution the Emperor signs treaties inhis own name and not on behalf of his people. ThePreamble to the Charter of the United Nations,which is a document accepted by the " respectiveGovernments ", commences with the words " We thepeoples of the United Nations ". In the Constitutionof the Food and Agriculture Organization of theUnited Nations of 16 October 1945 the parties seemto be the " Nations accepting this Constitution."However, interesting as these innovations may befrom other points of view, they are, like other variationsof terminology on the subject, without legal significancein the field of the law of treaties.

Note

1. The main principle embodied in this article isgenerally admitted. That principle is that the designa-tion of the instrument or combination of instrumentsis, as a rule, irrelevant for the purpose of its (or their)being regarded as a treaty so long as the intention toassume an obligation is reasonably clear. Thus aunilateral declaration constitutes a treaty if the partyto whom it is directed accepts it or acts upon it.Similarly, an apparently unilateral declaration — suchas that of the optional clause of Article 36 of the Statuteof the International Court of Justice — may in itself

" For the statement on the subject made to theCouncil of the League of Nations by the British Secretaryof State for Foreign Affairs in 1927, see League of Nations,Official Journal, 1927, p. 377.

Law of treaties 103

•constitute an acceptance of an already establishedinstrument and as such constitute a treaty. Alterna-tively, a declaration may be regarded as an act ofaccession to an already established text. Similarly,the governing consideration seems to be that it isirrelevant in what way the text expressing the commonintention of the parties has been established — whetherit is composed of one instrument or a number of instru-ments (as in the case of exchanges of notes or accession)and whether the text of the instrument is establishedby the parties or by some other body and subsequently•accepted by the parties. It is probably by referenceto some such considerations that the Permanent Courtof International Justice held in the Jaworzina casethat a joint declaration of Czechoslovakia and Polandaccepting a decision of the Conference of Ambassadorswas in the nature of " two agreements " and that•" the two agreements give to the decision arriveda t . . . the force of a contractual obligation enteredinto by the parties " (Publications of the P.C.I.J.,Series B, No. 8, p. 30). This is so although it may notbe easy to state which document constituted, in theopinion of the Court, the treaty binding the parties— the joint declaration accepting the decision or thedecision itself. Probably the treaty was constitutedby both documents. There would be no difficulty inassuming, following the language of the Court, that thedecision constituted the treaty and the joint declarationwas in the nature of an acceptance of the treaty thusestablished.

2. There may indeed arise border line cases inwhich the character of a unilateral act conceived as atreaty is less apparent and therefore controversial.Thus in the Free Zones case the Permanent Court ofInternational Justice held that a manifesto of theRoyal Chamber of Accounts of Sardinia of 1829 em-bodying the assent of the King of Sardinia to a claimmade by the Canton of Valais terminated an interna-tional dispute relating to the interpretation of theTreaty of Turin, that it thus represented un accord desvolontes, and that in consequence it possessed " thecharacter of a treaty stipulation" (ibid., Series AjB,No. 46, p. 145). It is not clear from the judgementwho were the parties to the treaty relationship thusconstituted. In the same case the Permanent Courtof International Justice held that a declaration madeby the Swiss Agent in the course of the proceedingsbefore the Court was binding upon Switzerland not-withstanding the statement of the French Agent tothe effect that he had no power to accept the offercontained in the declaration (ibid., Series A/B, No. 46,p. 170). It may be difficult to bring an offer notaccepted by the other party as constituting a treatyobligation — although, as held by the Court, thedeclaration was binding. Otherwise the principlemust be accepted that whenever there exist in fact theelements of an offer and an acceptance thereof — arecorded instrument or succession or combination ofrecorded instruments — there may fairly be held toexist a treaty. The object of article 2 is to give expres-sion to that principle.

3. Similar considerations apply to the question,which article 2 is intended to answer with a clearaffirmative, as to whether an exchange of notesconstitutes a treaty. The Commission, in the course

of the discussion on the subject in 1952, decided, by amajority of six to five, not to omit exchanges of notesfrom the purview of its codification of the law oftreaties.23 That provisional decision was not reachedwithout considerable hesitation. In the HarvardDraft Convention reasons are given, in the Commentto article 4, for excluding exchanges of notes from theDraft. For reasons which are set out below in somedetail it is believed that there is no foundation for theexclusion, from the sphere of the law of treaties, of aclass of agreements which accounts for a large propor-tion of the international agreements actually concludedby governments.

4. It appears that the principal considerationswhich animated some members of the Commission onthis question was the view that as exchanges of notesdo not require ratification, and that as any procedurewhich dispenses with ratification is contrary to therequirements of democratic constitutional processes,no encouragement ought to be given, by way ofelevating them to the dignity of a treaty, to interna-tional agreements which as a rule dispense withratification. These assumptions — and the conclusionsdrawn from them — are in need of reconsideration.In general, in examining the question of exhanges ofnotes the following considerations ought to be bornein mind:

(a) In the last three decades exchanges of notes haveconstituted more than one-fourth — probably one-third — of the total number of international agreements.That proportion has been increasing.24 The reason forthat tendency is that that procedure of concludinginternational agreements provides a simplified form ofreaching and recording agreements, in particular whenconcluded between government departments andagencies. It supplies the appropriate method foragreements of a technical character and of limitedscope as well as for those which, notwithstanding theimportance of their subject matter, require expeditiousaction for their initiation and execution. The characterof exchanges of notes as being in the nature of agree-ments is emphasized in numerous instruments by thefact that they are expressly described as " exchangesof notes constituting agreements " . " In fact, it seemsalmost as if, in order to remove what are essentially

28 See Yearbook of the International Law Commission,1950, vol. I, 51st meeting, para. 38.

21 Thus it has been estimated that in the years 1921 to1930, out of 338 instruments published in the UnitedKingdom Treaty Series, 93 were exchanges of notes.Out of 453 instruments published in that Series between1941 and 1950 no less than 195 have been exchanges ofnotes. In the years 1951 and 1952 about one-half of theinstruments in that Series were exchanges of notes. Outof the first thousand instruments registered with theSecretariat of the League of Nations 212 were exchangesof notes. Out of the total 4,831 instruments publishedwith the League of Nations between 1920 and 1946nearly 25 per cent were exchanges of notes. Out of the1,000 instruments first registered with the United Nations280 were exchanges of notes. See Weinstein in BritishYear Book of International Law, vol. 29 (1952).

•6 See, for instance, the series of " exchanges of notesconstituting an agreement " relating to passport visasbetween the United States and a number of countries:United Nations, Treaty Series, vol. 88, pp. 3, 11, 19,33, 43, 255, 265, 275, 283.

104 Yearbook of the International Law Commission, Vol. EL

unfounded doubts, that terminology is assuming acomplexion of regularity.26

(b) The fact that numerous exchanges of notes covertechnical subjects of limited scope does not mean thatexchanges of notes in general are confined to questionsof minor importance.27 Exchanges of notes haveregulated such matters as limitation of armaments(as between Great Britain and the United Statesin 1817 covering the number and size of warships onthe Great Lakes, or between Great Britain and Germanyon 18 June 1935 limiting the future strength of theGerman navy in relaton to the aggregate naval strengthof the members of the British Commonwealth (UnitedKingdom, Treaty Series, No. 22 (1935) Cmd. 4953)),renunciation of extra-territorial rights, grant of per-petual leases, establishment of diplomatic relations,agreements on diplomatic and consular representation,commerce and navigation (as between the UnitedStates and Nepal (United Nations, Treaty Series,vol. 16, p. 97) and Yemen (ibid., vol. 4, p. 165), main-tenance of armed forces on foreign soil, cessions ofterritory, settlement of boundary disputes (e.g.,between the United Kingdom and Brazil (ibid., TreatySeries, vol. 5 p. 71) or between the United Kingdomand China (ibid., vol. 10, p. 227), aviation, shippingand, generally, communications, settlement of warclaims, and the like. Nearly one-fourth of the commer-cial agreements concluded by the United Kingdomhave been in the form of exchanges of notes.

(c) In so far as the objection to considering exchangesof notes as treaties arises from the notion that theyare not subject to ratification, it must be remembered:(i) That in some cases exchanges of notes are subject

to ratification (see, for example the exchange of notesbetween Germany and Spain — League of Nations,Treaty Series, vol. 26, p. 455 — providing forratification by both parties; between the UnitedKingdom and Denmark — United Nations, TreatySeries, vol. 45, p. 324 — providing for approval bythe Parliament of one party; between the UnitedStates and Denmark (ibid., vol. 27 (1949), p. 35);between South Africa and Germany (United Kin-g

21 See, for example, exchanges of notes constituting anagreement between Denmark and the Union of South Africaproviding for reciprocal exemption from government andlocal government taxation of income derived from theexercise of shipping activities and operation of aircraftservices (30 November 1950: United Nations, TreatySeries, vol. 84, p. 51); between Belgium and Chile concer-ning the reciprocal protection of industrial and commer-cial trade marks (10 February 1947: ibid., vol. 76, p. 113);between the United States and China concerning claimsresulting from activities of the United States militaryforces in China (13 October 1947: ibid., p. 157); betweenthe United States and Denmark concerning exchange ofofficial publications (27 July 1949: ibid., vol. 79, p. 147);between the United Kingdom and Italy concerningBritish military fixed assets in Italy (30 December 1947:ibid., vol. 77, p. 33); between the United Kingdom andthe Netherlands concerning the settlement of wartimedebts (11 March 1948: ibid., p. 69); between Greece andItaly concerning cultural institutions (21 Septem-ber 1948: ibid., p. 259).

27 " . . . it is the fact that at the present time it canscarcely any longer be said that an exchange of noteshabitually deals with matters of smaller importancethan do treaties or conventions": G. Fitzmaurice inBritish Year Book of International Law, vol. 15 (1934),p. 120.

dom, Treaty Series, No. 25 (1935), Cmd. 4961)and between the United States and Poland, Leagueof Nations, Treaty Series, vol. 37, p. 141).

(ii) That the omission of the requirement of ratificationis not limited to exchanges of notes. The practiceof many countries follows the rule that, unlessotherwise provided, inter-governmental and inter-departmental agreements do not require ratifica-tion — not to mention agreements concludeddirectly between Heads of States. Moreover, asshown below (article 6), a considerable andincreasing number of treaties are being concludedwhich expressly dispense with ratification.

(d) Numerous decisions of municipal courts exhibitno hesitation in regarding exchanges of notes astreaties — although there is some divergence of prac-tice on the question whether exchanges of notes are inthe nature of inter-governmental agreements whichdo not require ratification or whether they must beconsidered as formal treaties in the sense of the consti-tutional law of the State concerned with the resultthat they cannot be enforced unless ratified. In suchcases they are held to be inoperative not because theyare not treaties but because, being treaties, they havenot been incorporated into the law of the land.28

(e) For the reasons stated there would appear to bestrong objection to eliminating exchanges of notesfrom the purview of the law of treaties. As alreadymentioned in connexion with the question of unilateral

28 This has been so particularly in France: see, for exam-ple In re Talbot (where the Court held that an exchange ofnotes cannot, without ratification and publication, have theforce of law in the meaning of article 26 of the FrenchConstitution: Gazette du Palais, 1947, Part II, p. 17;Annual Digest, 1947, Case No. 68). In re Vermote (Sirey, 1(1950), Part II, p. 154) and Benzoni v. Davidouici (ibid.,1951, Part II, p. 79) are to the same effect. On the otherhand see In re Colman (Annual Digest, 1947, Case No. 67)and Zumkeller v. Florence (Sirey, 1946, Part I, p. 257).See also Vicens v. Bonfillon (Annual Digest, 1933-1934,Case No. 180); Huckendubler v. Hoeffler (ibid., 1931-1932, Case No. 213); and In re Sociile Ruegger (ibid.,1933-1934, Case No. 179). The decision of the ItalianCourt of Cassation in Russian Trade Delegation in Italyv. Querci (Foro Italiano, 67 (1942), Part I, p. 11; AnnualDigest, 1941-1942, Case No. 129) is to the same effect.For an analysis of these and other cases bearing on thesubject see Weinstein in British Year Book of Interna-tional Law, 29 (1952). See also M. Brandon in AmericanJournal of International Law, vol. 47 (1953), pp. 58-62,on exchanges of notes in relation to the question ofregistration under Article 102 of the Charter of the UnitedNations. In all the cases referred to above the courtswere confronted with exchanges of notes interpretingprevious agreements. In Minister of Finance v. UnitedStates Line Co. the French Court of Cassation appliedto an independent exchange of notes what it describedas un accord diplomatique (Clunet, Journal de droitinternational, vol. 65 (1938), p. 532). In two importantAmerican cases — United Slates v. Belmont, (1937)301 U.S. 324, and United States v. Pink, (1942) 314 U.S.203 — the Supreme Court treated exchanges of notesaccompanying the recognition of the Government ofSoviet Russia as an international compact involvingfar-reaching — indeed startling — consequences in thesphere of municipal law. See also United States v.Guy W. Capps Inc. (1951), F. Supp. 30, where it washeld that an exchange of notes between the UnitedStates and Canada concerning the import and exportof potatoes, although not a treaty in the meaning of theConstitution, had the force of law. And see the ParisAgreement case decided by the German Reichsgerichi(Annual Digest, 1919-1922, Case No. 225).

Law of treaties 105

declarations, it may be unsatisfactory to leave outsidethe framework of codification of a particular topic asubject which, although exhibiting certain peculiarities,intrinsically falls within its purview. There is, apartfrom the method of establishing the text, no differenceof substance between exchanges of notes and otherinternational agreements in the matter of their validity,operation, interpretation and termination. In themunicipal sphere the method of concluding a contractby way of parallel complementary instruments isgenerally recognized. To deny to exchanges of notesthe full character of treaties may mean depriving abroad segment of international contractual relationsof the authority and effectiveness which the status ofa treaty imparts to an instrument. Any such course,if acted upon, would signify neglect of a methodwhich experience has shown to be particularly suitedto the growing needs of expanding internationalintercourse unemcumbered by elaborate procedure andsolemnity.29

The modern tendency, frequently commented uponby writers, has been in the direction of making theprocedure of conclusion of treaties less formal than inthe past, when difficulties of communication betweengovernments and their agents were a conspicuousfeature of the situation and when the variety andurgency of the interests to be represented did not equalthose of the modern expanding intercourse of States.Some drafts, including those previously before theCommission, have referred to a treaty as " a solemninstrument". The fact is that a treaty need not be asolemn instrument; nor need it consist of a singleinstrument. It may or may not be desirable to requireratification as an invariable prerequisite of the validityof a treaty. Practice has certainly not considered itas such.80 If ratification is considered as a procedurecongenial to the climate of constitutionality anddemocracy, that result must be achieved by theexpress adoption in treaties of provisions to that effect.It cannot be accomplished by eliminating from thesphere of treaties contractual agreements which pro-perly belong there. On the contrary, such a coursemay be of doubtful value even when viewed as a meansof discouraging the conclusion of international agree-ments not followed by ratification. For the reformthus achieved would be merely one of terminology. Itwould not prevent governments from undertakingcommitments, expressly described as not requiringratification, by way of instruments other than exchangeof notes.

" This is so, in particular, seeing that exchanges ofnotes may, in effect, be used for bringing about agreementsof more than two States. See, for instance, the parallelexchanges of notes between Italy and the United Kingdomand Italy and the United States of America (UnitedKingdom, Treaty Series, No. 52 (1951), Cmd. 8294).These parallel notes constitute an agreement betweenItaly of the one part and the United Kingdom andUnited States of the other. The procedure of exchangeof notes has also been resorted to when one of the parties hasnot been a State: see, for example, the Exchange of Notesbetween the International Court of Justice (representedby the President) and the Netherlands concerning pre-cedence: United Nations, Treaty Series, 8 (1947), p. 61.

30 For this reason there seems to be little persuasivepower in the argument, occasionally adduced, that ifexchanges of notes are assimilated to treaties theywould be automatically subject to the procedure ofratification.

(/) For these reasons the wording of article 2 asproposed — " Agreements, as defined in article 1,constitute treaties regardless of their form and designa-tion " — is intended to include exchanges of noteswithin the purview of treaties. In order to removedoubts from what has become a subject of somecontroversy and uncertainty, it may be consideredwhether it would not be desirable to elaborate thatstatement by the addition of the words " and regardlessof whether they are expressed in one or more instru-ments ". The alternative version of the article isintended to serve that purpose.

5. The great variety of the designations used fordescribing international agreements raises the questionof the justification for that diversity and of thepossibility — or desirability — of keeping it withinreasonable bounds. In most cases there is no apparentreason for the variation in the terms used. They oftencreate the impression that they were dependent upona factor no more decisive than the mood of the drafts-man. Thus, to give an example provided by onevolume of the United Nations Treaty Series — vol. 84 —in 1946 and 1948 the United States concluded withFrance a series of agreements described variously asmemorandum of understandings constituting an agreement(relating to lend-lease, reciprocal aid, and the like:p. 59); agreement and an accompanying supplementaryunderstanding (transfer of surplus United States armyand navy property: p. 79); agreed combined statement(disposition of claims: p. 93); memorandum constitutingagreement (shipping: p. 113); declaration constituting anagreement (commercial policy: p. 151); understandingconstituting an agreement (exhibition of motion pictures:p. 161); declaration (economic and financial problems:p. 167); agreement (financing of educational exchangeprogrammes: p. 173); joint declaration constituting anagreement (motion pictures: p. 185). There is littlemethod in, and no obvious explanation for, the diversityof terminology in this and many other cases. Yet it isdoubtful whether there is room for a deliberate effort,by way of codification or otherwise, to introduceuniformity of terminology on this field of the law. Solong as no conclusions of legal relevance are drawnfrom this diversity of expression the mischief, if any,resulting from it is insignificant. The same appliesto the discrepancies of practice in the description ofthe parties.

Article 3

The law governing treaties

In the absence of any contrary provisions laid downby the parties and not inconsistent with overridingprinciples of international law, the conditions of thevalidity of treaties, their execution, interpretation andtermination are governed by international custom and,in appropriate cases, by general principles of lawrecognized by civilized nations.

Comment

To a large extent the above article reproduces, inrelation to treaties, the substance of Article 38 of theStatute of the International Court of Justice, whichenumerates the sources of law to be applied by theCourt. To that extent article 3 seems to be redundant


inasmuch as the sources of international law enumer-ated in Article 38 of the Statute of the Court governalso other parts of international law. However, as inArticle 38 treaties themselves figure as the first sourceof international law enumerated, it is essential to statein an introductory article of a Code of the Law ofTreaties that that law is based on and owes its validityto customary international law and to the generalprinciples of law recognized by civilized nations.Although, with few exceptions, all the pronouncementsof the International Court of Justice and of its predeces-sor have been concerned with the interpretation oftreaties, such interpretation has taken place against abackground of general rules of customary internationallaw. This subordination to international law in itsentirety expresses itself in particular in relation to thefundamental aspects of the law of treaties, namely,their binding force and the principle — which is thebasis of the law relating to the interpretation oftreaties — that they must be interpreted in accordancewith the canons of good faith. Thus the binding forceof treaties is independent of the will of the Stateswhich conclude them in the exercise of their sovereignty.Their binding force and other basic conditions of theiroperation are grounded in customary internationallaw. WhUe, therefore, States are free to shape theirtreaty relations and the conditions of their performancein accordance with their will, they can do so onlysubject to the overriding principles of internationallaw, the general principles of law and principles ofgood faith. The question of the degree of the overridingeffect of these principles is examined in article 15 inpart III of this draft. Accordingly, while most of theprovisions of the present Code of the Law of Treatiesare framed so as to give wide latitude to the autonomyand discretion of the parties and so as to be operativeonly if the parties have made no provision to thecontrary, others are binding upon the parties in allcircumstances and must be interpreted accordingly.This is so for the reason that in the matter of treatiesthe will of States is only one source — and in somecases only a subordinate source — of international law.

Note

On the face of it the subject matter of article 3seems purely doctrinal and to that extent redundant.However, it is believed that some such article isessential in order to put in its proper perspective whatmay be provisionally called the Code of the Law ofTreaties. As in many other spheres of internationallaw, the parties may by treaty change or modify exist-ing rules of international law. The Code is intendedto a large extent to regulate matters which are notexpressly provided for by treaty. But, as was perceivedin the discussions of the Commission in connexionwith the Code of Arbitral Procedure, there are certainrules and principles which are above and outside thescope of the jus dispositivum of the parties. Anexpress statement to that effect is particularly neces-sary with regard to treaties for the reason that theythemselves constitute a source of international law.The Code of the Law of Treaties safeguards in manycases the freedom of action enjoyed by the parties.Its articles will be frequently prefaced by the statement" unless otherwise provided by the parties ". Evenin the absence of some such express provision, the

parties will often be entitled to adopt rules and pro-cedures to meet their particular requirements. On theother hand, it is clear that they cannot contract out ofsuch rules as those which lay down that treaties mustnot violate binding rules of international law (althoughit may on occasions be doubtful which rules of inter-national law are so compelling and mandatory thatthey have the result of nullifying a treaty which isinconsistent with them: see article 15 below); or that atreaty must not, lest it be void, involve the violationof a previous treaty to which the contracting Statesare parties; or that a treaty imposed by unlawfulexercise of force is not binding. In fact, the principleunderlying article 3 as drafted provides the basis ofthe law relating to the validity of treaties as formulatedin part III of this draft. As such it is properly — andnecessarily — included in the present general andintroductory part I.

Part II

Conclusion of treaties

Article 4Assumption of treaty obligations

A treaty becomes binding by signature which is-not subject to confirmation, ratification, accession,acceptance, or any other means of expressing thewill of the parties, through a competent organ, inaccordance with the provisions and practice of theirconstitution.

Comment

1. The object of this article, which is of a formalcharacter, is to state the principle that parties totreaties enjoy a wide freedom of choice in the matterof the means by which they assume treaty obligations.This includes, in addition to the traditional methodsof signature, ratification and accession, not only themore recent method of so-called " acceptance "(article 8 below), but also such methods as concurrentaction by way of exchanging notes (see comment toarticle 2 above), a unilateral declaration accepted bythe other party or parties (ibid.) and, generally, anyother procedure which the parties may find it necessaryto employ.

2. Although signature is enumerated in the presentarticle as one of the means by which a party may assumea treaty obligation, it is also one of the methods forestablishing — authenticating — the text of a treaty.It is difficult — and perhaps unnecessary — to decidewhich is its primary function. The answer to thatquestion will depend largely upon the view eventuallytaken as to the nature and the necessity of ratification(see article 6 below). It will also depend to some extenton the realization of the fact that at present over one-third of bilateral contractual instruments becomebinding without ratification. The purpose of theseobservations is merely to remove a source of misunder-standing resulting from the fact that signature isoften regarded and is referred to in paragraph 4 of thiscomment as one of the means of establishing the textwhereas in the present article it appears as one of themethods of assuming a treaty obligation. Moreover,as explained in the comment to article 5, signature is

Law of treaties 107

seldom, if ever, merely a means of establishing thetext of the treaty, i.e., of authentication. Even ifsubject to ratification, it creates, within a limited sphere•certain obligations which are by no means of a merelyprocedural character (see article 5 below).

3. The concluding passage of this article, whichprovides that the various means of concluding a treatymust be expressed by a competent organ in accordancewith the provisions of the constitution — which meansboth constitutional law and constitutional practice —•of the parties refers to one of the conditions of thevalidity of a treaty and is the subject matter of article11 in Part III of the present draft (Validity of Treaties).

4. The present article is not concerned with theprocedural question of the methods by which the textof a treaty is established. This takes place by thesignature on behalf of the parties which have takenpart in the negotiation of the treaty or of the conferenceat which the treaty was negotiated; by incorporationin the final act of the conference; by incorporation in aresolution of an organ of an international organizationin accordance with its constitutional practice; in anote or letter which provides the first link in an exchan-ge of letters; by a unilateral declaration subsequentlyaccepted by the party or parties to whom it is addres-sed; or by any other means agreed upon by the nego-tiating States. These other methods may includewhat is in effect a provisional signature, namely,initialling or signature ne varietur, which occasionallytakes place in cases in which there is an intervalbetween the conclusion of the negotiations and thesignature of a treaty. The signature or initialling nevarietur is thus a guarantee of the authenticity of thetext. It was resorted to in the Locarno Treaty ofMutual Guarantee of 16 October 1925. The treatywas initialled on that day ne varietur and it bore thatdate. It was signed on 1 December 1925. Theestablishment of the text of a treaty by a resolutionof an organ of an international organization is a compa-ratively recent method. It has been followed inconventions adopted by resolutions of such bodies asthe International Labour Organisation, the Food andAgriculture Organization of the United Nations, theUnited Nations Educational, Scientific and CulturalOrganization, or by the United Nations itself, as,for example, in the case of the Convention on Privilegesand Immunities of the United Nations of 1946 or theGenocide Convention of 1948. A case in which " otherformal means" were adopted is that of the GeneralAct for the Pacific Settlement of International Disputesof 1928. It was signed by the President of the Assem-bly of the League of Nations and by the Secretary-General. There was no provision either for signaturesor ratification; article 43 of the act merely providedfor accession.

5. Signature, ratification and accession as methodsof assuming treaty obligations each form the subjectof a separate article in the present section. Thesame applies to "acceptance" — a procedure which,although used occasionally before the second worldwar (as in the case of the United States joining theInternational Labour Organisation), is of recent origin.It has been adopted largely owing to the desire of someStates to avoid the usual reference to " ratification ",

and so render unnecessary the literal observance ofthe constitutional procedure appropriate for ratifica-tion. Subject to minor variations it enables a partyto become bound by either signature without reserva-tion as to acceptance; or signature with reservation asto acceptance followed by acceptance; or acceptancepure and simple. In article 8 and in the commentthereon the question is raised whether the notion ofacceptance thus conceived in fact constitutes a distinctmeans of assuming treaty obligations.

Note1. As pointed out in the comment, article 4 — which

otherwise lays down no substantive rule of law — hasbeen included largely as an occasion for stating theprinciple of the freedom of choice of methods for estab-lishing the text of a treaty. Apart from that theSpecial Rapporteur considers that the elaboration ofprocedural rules falls outside the scope of the Commis-sion's work on treaties. An authoritative manual ofprocedure for international conferences and conclusionof treaties may be of great usefulness, and the Commis-sion may ask at some future date whether it ought notto embark on some such study as that which wasfore-shadowed by the League of Nations Committee ofExperts for the Progressive Codification of Internatio-nal Law, namely, " whether it is possible to formulaterules to be recommended for the procedure of inter-national conferences and the conclusion and draftingof treaties, and what such rules should be ". However,although it is not believed that that subject fallswithin the purview of the law of treaties now beforethe Commission, it is not a matter which can be altoge-ther disregarded in this connexion. A great deal of thedifficulties and of the discussion surrounding the lawof treaties has been due to the imperfections of themachinery for formulating and concluding them. Thus— as will be suggested in the comment to article 7 —the controversy, largely unreal in character, whethertreaties which contain no specific provision on thequestion of the requirement of ratification must beratified in order to be binding is due in most cases toan omission which could have been avoided by carefuldrafting. The same applies to discrepancies of practicein the matter of accession. Some treaties state thataccession shall be admissible at any time; others laydown a date after which accession can be effected;others still provide that accession shall be admissibleonly after the treaty has entered into force. Thereseems to be no reason for these differences in procedure.It would not be difficult to multiply such examples.They all raise the question whether some machinerycould not be devised which would obviate obscuritiesand the confusing absence of uniformity in matterswith regard to which no apparent interest of the partiesand no considerations of convenience seem to requireconflicting or ambiguous regulation.

2. In this connexion the Commission may wish toconsider whether a measure of support should not begiven to a proposal made in 1945 by an authority ofrecognized experience for the establishment of aninternational legislative drafting bureau " to advise

11 The proposal was put forward by Mr. C. W. Jenksin the American Journal of International Law, vol. 39(1945), pp. 163-179.

108 Yearbook of the International Law Commission, Vol. H

governments and conferences engaged in draftingtreaties. While the exact nature of the machinerywhich might thus be set up must be a matter forcareful examination, it is very probable that some suchmachinery would be useful. In many States parliamen-tary draftsmen attached to the legislative body havebecome an essential part of the legislative process.Their intimate knowledge of the entire field of thestatutory law has been recognized as an invaluablemeans of preventing embarrassing inconsistencies inlegislation and of ensuring the requisite degree ofuniformity of technique. In the international spherethe need for some such assistance is even more impera-tive having regard to the differences of language and,above all, the baffling diversity of the municipal and,in particular, the constitutional law of States. Thus,for instance, the embarrassing problem of the relevanceof constitutional limitations would be alleviated ifparties to treaties could rely in this respect upon theadvice given by international draftsmen whose functionwould embrace, inter alia, the provision of informationon the subject. Similarly, with regard to reservationsit may not be easy for a government to assess theeffect, in all its ramifications, of reservations attachedby a State to a particular convention. Here, again,expert information might be of assistance. Finally,although uniformity of nomenclature or structure isnot an essential prerequisite of the satisfactory opera-tion of treaties, it is possible that the elimination orthe diminution of the present — and often confusing —diversity of practice would be beneficial to the autho-rity and development of this branch of internationallaw. Undoubtedly governments are well served bytheir own legal advisers, who are fully conversant withinternational law. However, in the nature of thingsthey cannot be expected to possess the detailed andspecialized knowledge springing from intimate expe-rience of the totality of treaty law and of the relevantmunicipal law of States. In view of this it must be amatter for consideration whether, apart from anysubstantive formulation of the law of treaties, theCommission should not recommend the creation of abureau, under the responsibility and as part of theactivities of the United Nations, from which govern-ments could enlist the assistance of experts for draftingtreaties and whose presence would become a regularfeature of international conferences assembled for thepurpose of formulating conventions. It will be recalledthat at the sixth and seventh sessions of the GeneralAssembly proposals were made and discussed forplacing under some expert guidance legal acts andinstruments emanating from the General Assemblyitself, including conventions concluded under theauspices of the General Assembly.32

Article 5Signature

1. The signature of a treaty constitutes an assump-tion of a binding obligation in all cases in which the

" For the proposal to that effect made by the repre-sentative of the United Kingdom see Official Records ofthe General Assembly, Sixth Session, Sixth Committee,Annexes, agenda item 63. And see for a review of therelevant discussions of the General Assembly the noteby Y. L. Liang and H. T. Liu in American Journal ofInternational Law, vol. 47 (1953), pp. 70-83.

parties expressly so agree or where, in accordancewith article 6, no confirmation of the signature isnecessary.

2. In all other cases the signature, or any othermeans of assuming an obligation subject to subse-quent confirmation, has no binding effect exceptthat it .implies the obligation, to be fulfilled in good,faith:

(a) To submit the instrument to the proper consti-tutional authorities for examination with the viewto ratification or rejection;

(b) To refrain, prior to ratification, from any actintended substantially to impair the value of theundertaking as signed.

Comment

1. The subject matter of this article is closelyconnected and overlaps with that of article 6 relatingto ratification. However, signature as an independentmeans of assuming a treaty obligation is so widely andso increasingly followed in practice that it is properto put on record in a separate article its position assuch. At the same time, signature as a means ofassuming an obligation must still be regarded as adeparture from what is the normal rule, namely, therequirement of ratification. For that reason it will beconvenient, in connexion with the article on ratificationto comment in more detail on this part — i.e., para-graph 1 — of article 5.

2. The statement that " signature, or any othermeans of assuming an obligation subject to subsequentconfirmation . . . implies the obligation, to be fulfilledin good faith, to submit the instrument to the properconstitutional authorities for examination with theview to ratification or rejection ", is controversial,as expressing a rule of international law, even inthe present — conspicuously qualified — formulation.The view most frequently expressed is that there isno obligation to ratify a treaty previously signed by aState. That view accurately expresses the existingrule of international law on the subject. At the sametime it must be borne in mind that, on the part of asubstantial number of writers, that view has beenaccepted only subject to the qualification that theright to refuse ratification is not unqualified; that itmust not be exercised capriciously or arbitrarily; andthat misuse of that right is fraught with injury not onlyto the reputation of the State in question but also to theauthority of international law and the needs of inter-national intercourse. The opinion has also occasionallybeen voiced that there is a legal obligation to ratify incases in which the full powers issued to the plenipoten-tiaries include the authority not only to negotiate butalso to conclude the treaty. While these and similarviews are not, it is believed, borne out to any substantialdegree by the existing practice, they constitute areminder of the inconvenience and disadvantages ofthe rule which recognizes an unqualified right to treatthe signature as being no more than a method ofauthentication. Considerations of that nature under-lay the resolution of the Assembly of the League ofNations of 1930 which authorized the Secretary-General of the League to address annual requests tosignatories of treaties concluded under the auspices of

Law of treaties 109

the League as to their intentions with regard to ratifi-cation of a convention signed by them. These consid-erations do not affect the existing principle affirmingthe right to refuse to ratify a signature freely appended.However, that principle can in the long run operate ina satisfactory way only if some qualifications, howeverlimited in compass, are adopted for modifying itsrigidity. It may not be sufficient to rely on theprobability that a State which habitually and withoutgood reasons fails to ratify its signature will impairits own contractual capacity for the reason that otherStates will decline to conclude treaties with it. Sucha probability has not prevented Governments fromfailing indefinitely to take action on signatures freelygiven — with the resulting impairment of the treaty-making process as a whole.

3. The remedy cannot lie in imposing upon theGovernment a duty to confirm signatures appended onthe express understanding that they will be free todecide whether to confirm them or not. No such duty,unless accepted expressly or by compelling implication,is imposed by international law. However, that doesnot mean that the codification of the law of treatiesmust limit itself to the mere statement that there is noduty to confirm the signature of a treaty. It must beregarded as a requirement of good faith, which is initself part of the law and not merely of political pru-dence, that signature implies the obligation to causethe treaty thus signed to be examined by the competentconstitutional authorities with the view to determiningwhether the signature ought to be confirmed. Ofnecessity it is an imperfect obligation, which must befulfilled by the Government concerned having regardto all the circumstances. It may be occasionally, ineffect, a nominal obligation in cases in which the viewsof the competent constitutional authorities are notlikely to differ from those of the Executive determinednot to proceed with the treaty. It is nevertheless alegal obligation, though not an unduly onerous one.Under the Constitution of the International LabourOrganisation Governments are bound to submit to thenational authorities, for approval or rejection, conven-tions against which the representatives of thoseGovernments have voted at the Conference whichadopted them. Governments have full freedom ofaction in confirming or rejecting a treaty which theyhave signed subject to the condition of subsequentconfirmation — such condition being the normal rulein the absence of express or implied provisions to thecontrary (see article 6 below). What, as a matter ofgood faith, they cannot do is to sign a treaty andsubsequently conduct themselves as if they had noconcern with it or as if their signature thereto weremerely a clerical act of authentication. There is nowarrant in international law for reducing to that levelthe meaning of the signature. Signature of an instru-ment — even when made subject to subsequentconfirmation or ratification — is more than a methodof authenticating a text. In many cases the textexists already, as is the case when an established textis approved by a conference and opened for signature,33

n The following example shows that even from theformal point of view the function of the signature, al-though not amounting to a binding acceptance of obliga-tions, may be different from that of merely establishing

subject to ratification, within a prescribed period, orwhen accession to or acceptance of an already estab-lished text takes place throught signature subject toratification. The correct principle of law with regardto the legal consequences of signature is accuratelystated, it is submitted, in the following passage fromthe Comment to article 9 of the Harvard DraftConvention:

" It is believed that when a duly authorizedplenipotentiary signs a treaty on behalf of his State,the signature is not a simple formality devoid ofjuridical effect and involving no obligation whatever,moral or legal, on the part of the State whose signa-ture the treaty bears. It would seem that not onlythe treaty-making organ itself but also the otherorgans of the State which are competent to act for it,once a treaty has been signed on its behalf, are not,if they observe good faith, entirely free to act as ifthe treaty had never been signed. It would seemalso that one signatory State has the right to assumethat the other will regard the signature as havingbeen seriously given, that ordinarily it will proceedto ratification, and that in the meantime it will notadopt a policy which would render ratification uselessor which would place obstacles in the way of theexecution of the provisions of the treaty, onceratification has been given."

In disregarding the question of the obligation to takeappropriate measures in the matter of confirmation orotherwise of the signature the authors of the HarvardDraft failed to draw the necessary conclusions fromthe principle thus stated. The present draft drawsthese conclusions. There are compelling reasons why asignatory should not be permitted to treat his signatureas a meaningless formality. In signing a treaty itexercises an important influence on some of the pro-cedural clauses of the treaty. (These are usuallyreferred to as the " Final Clauses," although in someconventions they appear in the opening chapters.) Itssignature is instrumental in determining such mattersas the right of accession, the admissibility of reserva-tions, the conditions of entry into force, and manyothers. In fact this consideration applies not only tothe formal and procedural clauses of the treaty butto its substantive provisions as well. For these pro-visions may have been substantially — or decisively —influenced by the signatory State or States in question.The treaty is in many respects the result of a painfullyachieved compromise to which some States agree,often with reluctance, in order to secure the participa-

the text. The texts of the four Geneva Conventions of1949 were stated in the Final Act to have been establishedby the Conference. The Final Act was signed by allsixty-one participating States on 12 August 1949. Thiswas not tantamount to signature of the Conventions.For only sixteen of the delegations signed all four Con-ventions; the United States of America signed onlyConventions No. 1, 2 and 3. The remainder of thedelegations signed the four Conventions at a specialmeeting convened on 8 December 1949, when the UnitedStates also signed Convention No. 4. Each Conventionbore the date of 12 August 1949. Each was open forsignature until 12 February 1950 in the name of theStates represented at the Conference and by States partiesto the previous relevant Geneva Convention. Afterthat date the Conventions were open to accession.(International Committee of the Red Cross, the GenevaConventions of August 12,1949, Geneva).


tion of others. Often a State signs — or ratifies — aconvention because the signature of another State orStates is regarded by it, in case of doubt, as a sufficientinducement for its own signature. But if these otherStates are subsequently at liberty to treat their signa-ture as implying no manner of obligation whatsoever,the concessions made by other signatories will havebeen made in vain seeing that the consideration whichthey could legitimetely expect will not be forthcoming.Moreover, the mere fact of signature confers upon thesignatory certain rights — some of them admittedlycontroversial — and it is proper that there shouldexist some obligation in consideration of those rights.Thus, according to the widely held view, a signatoryState has a voice in determining the admissibilityof reservations and, in some cases, of accessions.According to a view, which in the present article isrepresented as the correct view, signature has theeffect of obliging the signatories to abstain, prior toratification, from a course of action inconsistent withthe purpose of the treaty. But if signature is a mereformality which implies no obligations whatsoever onthe part of others, there would appear to be no justifi-cation for such self-denying restraint. All these con -siderations prompt the conclusion that signature,although not implying an obligation of ratification,implies the duty to take some action showing a delib-erate acknowledgement of the principle that eventualratification is the natural outcome and purpose of thesignature.

4. On the other hand, the authors of the HarvardDraft Convention correctly applied the principle, asstated in the passage cited above, to the question ofthe obligation resting upon a signatory State betweensignature and ratification. With regard to that ques-tion the present article adopts, as expressing theexisting law on the subject, the principle that thesignature implies the obligation " to refrain, prior toratification, from any act intended substantially toimpair the value of the undertaking as signed ". Itwill be noted that: (1) that obligation constitutes alegal, and not merely a moral, duty; (2) that it refersonly to such acts as are intended, and not merelycalculated, to impair the value of the obligation assigned. For the purpose of that rule is to prohibitaction in bad faith deliberately aiming at deprivingthe other party of the benefits which it legitimatelyhoped to achieve from the treaty and for which it gaveadequate consideration. Thus, for instance, a Statewould be acting in bad faith and in violation of alegal duty if, to mention a concrete case which pre-sented itself to the Permanent Court of InternationalJustice in the case referred to below, after havingundertaken to cede to another a portion of its territoryit were to proceed to alienate, in the interval betweensignature and ratification, all the public property ofthe State which would otherwise pass to the othercontracting party under the rules of State succession.On the other hand, apart from deliberate action in-tended to deprive the other party of some of the benefitsof the treaty, a contracting party cannot be divestedduring a period, which may be long and occasionallyindefinite, of its freedom of action with regard tonormal activities of State administration. Subjectto that qualification, the signature imposes upon aState the duty as formulated in the present article.

The Permanent Court of International Justice ineffect affirmed that rule in the Case concerning certainGerman interests in Polish Upper Silesia. Whileupholding the right of a State to dispose of Stateproperty after the signature of the treaty, it qualifiedthat right by laying down that abuse of it would endowan act of alienation with the character of a breach of aninternational obligation; that such abuse cannot bepresumed; and that the burden of proof rests uponthe party alleging it (Publications of the P.C.I.J.,Series A. No. 7, p. 30). The Court then examined thefacts of the case and found that the German acts ofalienation did not overstep the limits of the normaladministration of public property and that they werenot intended to deprive Poland of a right to which shewas entitled. There are decisions of other internationaltribunals and of municipal courts to the same effect.3*Practically all writers who have examined the questionsupport the rule as formulated. There exist a numberof treaties which state expressly the obligation of theparties to act on that rule, for instance, article 38 ofthe Final Act of Berlin of 26 February 1885, whichlaid down that « en attendant la ratification, les Puis-sances signatoires de cet Acte general s'obligent a n'adopteraucune mesure qui serait contraire aux dispositions duditActe ». In so far as this and similar provisions refer toaction aimed at by the present article 5 they are nomore than declaratory of an existing principle. In sofar as they prohibit all action contrary to the treatythey probably go beyond that article, which forbidsonly such action as is deliberately intented to deprivethe other contracting party of the benefits of thetreaty.

5. With regard to paragraphs 3-5 of the presentcomment, the reference to the legal effect of signaturein some cases is amplified by the statement that thiscovers also " any other means of assuming an obligationsubject to subsequent confirmation ". This refers tocases in which, for instance, an accession (see article 7below) or an acceptance or a unilateral declaration(see article 2 above) is made subject to subsequentconfirmation.

Note

1. Article 5 as here formulated differs substantiallyfrom the relevant articles tentatively adopted by theCommission, and the observations which follow maytherefore be appropriate. Among these articles therewas no separate article on signature although signaturefigured in the enumeration of the means of assuminga treaty obligation. This was so probably for the rea-son that the Commission, while recognizing that theparties may treat the signature as binding, was inclined

84 See, for example Megalidis v.Turkey, decided in 1923by the Turkish-Greek Mixed Arbitral Tribunal (Recueildes Decisions des Tribunaux Arbitraux Mixtes, vol. 8,p. 390; Schrager v. Workmen's Accident Insurance In-stitute, decided in 1927 by the Supreme Court of Poland(Annual Digest, 1927-1928, Case No. 274); Rentenguts-vertrag (Danzig) Case, decided in 1928 by the Obergerichtof Danzig (ibid., Case No. 276). In the case of Kemenyv. Yugoslav State the Hungarian-Yugoslav Mixed Ar-bitral Tribunal held that the conferment of miningrights on 20 March 1920, i.e., before the date of the signingof the Treaty of Trianon (although after the date of thearmistice), was not inconsistent with the obligations ofthe Treaty (ibid., Case No. 374).

Law of treaties 111

to treat the signature primarily as a means of authen-tication and viewed with some disfavour, as contraryto precepts of constitutionalism, its use as a means ofassuming an immediate obligation. Yet the fact isthat the practice of governments recognizes it as suchto an increasing degree. Moreover, even when signa-ture does not go to the length of the assumption of animmediate obligation, it has a legal significance goingbeyond mere authentication. It is a declaration ofintention, whether it is subject to ratification or not,to become a party to the treaty. It is of interest tonote the frequency with which multilateral conventionsbrought about by the signature of the States ororganizations of States participating in the conferenceswhich adopted them provide for additional possiblesignatures up to a fixed date and for accession subse-quent to that date. Moreover, the place of signature aspreliminary to accession (article 7) or acceptance(article 8) is conspicuous in numerous recent conven-tions concluded under the auspices of the UnitedNations and dispensing with ratification.'5

2. The Special Rapporteur does not consider that themere negative statement that there is no obligation toratify a signature does justice to the problem from thepoint of view either of codification or of development ofinternational law. That negative statement, whenproperly supplemented, is correct. When standing inisolation it is incomplete and to that extent inaccurate.A party which has signed a treaty is not bound toratify it. But it cannot, consistently with legalprinciple and good faith, act — or refrain from acting —as if it had never signed the treaty at all. It mustexamine the treaty in order to come to a decision,with regard to which it enjoys full freedom of action,whether to approve the treaty or not. It is not ofdecisive importance that governments have notexpressly accepted that principle or that the report onthe subject produced by a committee appointed by theAssembly of the League of Nations and pointing to anobligation to submit the treaty to the proper authoritiesfor approval or rejection did not secure formal accep-tance. In codifying international law the Commissionis not limited to registering uniform practice. If thatwere its purpose its work would be partly nominal andpartly redundant. While in some matters the Commis-sion will adequately discharge its function by the merefact of drafting rules expressive of uniform practice,in other fields — where uniform practice is lacking —it is its function to formulate rules based on what itconsiders the correct legal principle, the requirements ofgood faith, and such practice as it considers mostconducive to the effectiveness and development ofinternational law.

3. The same considerations apply to the secondlegal consequence of the signature, namely, abstention— in the period between signature and ratification —from action intended to deprive the treaty wholly orin part of its effectiveness and thus to deceive the other

" See.for example, the International Sanitary Conven-tion for Aerial Navigation of 15 September 1944, wichprovides, in article XVIII, that it shall come into forceas soon as it has been signed or acceded to on behalf often or more Governments (United Nations, Treaty Series,vol. 16, p. 247).

contracting party. This, again, is a legaljobligation.The Commission refrained from laying down thatprinciple on the ground that, as stated in its commentto tentative article 7, the material available is " of toofragmentary and inconclusive a nature to form thebasis of codification ". However, as shown in thecomment to the present article, judicial practice,including that of the highest international tribunal,is as complete as can be desired in the circumstances.Even if there existed a regularly functioning interna-tional judiciary endowed with compulsory jurisdictionit could hardly be expected that it would produce arich crop of cases bearing on what is in the nature ofthings an unusual occurrence. Here, again, what isdecisive for the purpose of codification is the drawing,in the light of existing practice, of the necessaryconclusions dictated by the principles of good faith(which form part of the law), of the function of signature(which goes beyond that of mere authentication), andof the requirement of honest international intercourse.Practically all writers who have examined this questionhave come to the conclusion formulated in the presentarticle — although some, including Anzilotti, basethat conclusion not on the effect of the treaty as suchbut on the principle prohibiting abuse of rights. ThusAnzilotti says:

« 7/ faut encore observer que, en excluant tout effetobligatoire du traite anterieurement a la ratification,on ne veut pas dire que VHtat puisse ne tenir aucuncompte du texte intewenu et faire comme si rien nes'etait produit. II y a lieu, par contre, d'admettre que,lorsque la procedure de ratification d'un traite regulU-rement signe est pendante, I'Etat doit s'abstenir d'ac-complir des actes de nature a rendre impossible ou plusdifficile Vexecution reguliere du traite une fois ratifie.Mais il est clair qu'il ne s'agit pas alors d'un effet dutraite comme tel, mais Men d'une application duprincipe qui defend d'abuser du droit. » (Cours dedroit international (Gidel's translation, (Sirey, Paris,1929), p. 372.)

4. The Special Rapporteur has not found it necessaryto refer in the comment to the conventional exceptionsto the principle that a party is entitled to refuse toproceed with ratification. This exception is createdby article 19 of the Constitution of the InternationalLabour Organisation which provides that, when theconsent of the competent authority has been obtained,a member of the Organisation is bound to communicateits ratification of the convention for which consenthas been given. In the case of International LabourConventions there is no question of ratification of asignature previously given. Such ratifications aremore in the nature of accession than ratification in theaccepted sense. With regard to other treaties thematter is not free from difficulty. It is frequentlyasserted that a contracting party is under no obligationto proceed to ratify a treaty which it has signed andwhich has received the legislative approval necessary forratification. (See, for example as to French decisionsand practice in the matter L. Preuss in American Jour-nal of International Law, vol. 44 (1950), p. 649.) Howe-ver, refusal to ratify in such circumstances strains tobreaking point the principle that a contracting partyis free to decline to ratify a tre aty which it has signed.For it is largely the necessity of legislative approval


which is the raison d'etre of ratification. There may bereasons justifying refusal to ratify in such circum-stances — the reasons being largely identical with thosewhich justify unilateral termination of a treaty — butthey must be regarded as exceptional. The questiondeserves consideration by the Commission. It isparticularly acute in cases in which the wording of thearticle requiring ratification is such as to make legis-lative approval appear to be the sole reason for therequirement of ratification.

Article 6

Ratification

1. Ratification is an act by which a competentorgan of a State formally approves as binding thetreaty or the signature thereof.

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

(a) The treaty in effect provides otherwise by layingdown, without reference to ratification, that it shallenter into force upon signature or upon any otherdate or upon a specified event other than ratification;

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

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

(d) The attendant circumstances or the practiceof the contracting parties concerned indicate theintention to assume a binding obligation without thenecessity of ratification.

[Alternative paragraph 2]

[2. Confirmation of the treaty by way of ratificationis required only when the treaty so provides.]

Comment

1. Ratification as an act of confirmation by a compe-tent organ. The question as to who is the competentorgan to ratify a treaty is one which internationallaw leaves to the constitution and, generally, to thelaw of the parties whether they be States or organiza-tions of States. With regard to States, although asa general rule the power to ratify treaties is formallyvested in the Head of the State, most constitutionsqualify this rule by laying down that ratification shallnot be given, or shall not be binding, unless the priorapproval of the legislature or part thereof has beenobtained. In some States this limitation applies to alltreaties; in others only to certain categories of treaties.The rule prevailing in some countries, such as theBritish Commenwealth of Nations, that the Head ofthe State has the unfettered power to ratify treaties isa practice modified by the convention that importanttreaties or certain categories of treaties are submittedfor parliamentary approval prior to ratification. Also,in these countries the theoretically unrestricted powerof the Head of the State to ratify treaties is limitedby the principle that provisions of treaties affecting

the private rights of the subject must be incorporated,by an act of legislation, into the law of the land beforethey can be applied by the courts. The law of onlyvery few States — such as Ethiopia, Jordan, Morocco,Saudi Arabia and the Vatican City — reserves anunlimited power of ratification to the Head of theState. Occasionally the written constitution or consti-tutional practice empowers organs other than theHead of the State to ratify international agreements.38

Such provisions, however, are infrequent for the reasonthat, according to the practice of many States, inter-departmental agreements are not subject to ratifica-tion (see below, paragraph 5 (c)). In any case, what-ever may be the provisions, if any, of the national lawon the subject, compliance with them, in so far asthey are known and ascertainable (see article 11 below),is an essential condition of the coming into force ofthe treaty.37

2. The expression " formally approve as bindingthe treaty or the signature thereof " is intended toconvey that, as a rule, the act of ratification may bean approval either of an instrument which the Statehas not previously signed or, which is the normal rule,of a signature previously appended by the representa-tives of the State duly authorized to sign the treaty.The views is occasionally expressed (as, for instance,in the comment to article 6 of the Harvard DraftConvention) that ratification is a confirmation not ofthe signature (or its equivalent) but of the treaty. Itis believed that that view (adopted in the comment tothe Harvard Draft Convention and in article 5 of thetentative draft of the Commission) does violence tothe language customarily used in instruments of rati-fication, that it is contrary to the preponderantauthority, and that it fails to do justice to the indepen-dent status of the signature, which is productive oflegal effects of its own. It is irrelevant for this purpose

»6 An United States Act of 1934 provides that the Post-master General may, with the advice and consent of thePresident, negotiate and conclude postal treaties orconventions. These treaties and conventions are ratifiedby the Postmaster General. The seal of the Post OfficeDepartment of the United States is affixed to the rati-fication.

87 It must be noted in this connexion that the termratification as here used refers to international ratifi-cation. The law and constitutions of some countriesoccasionally use the term " ratification" for what isessentially approval given by the legislature to subse-quent international ratification by the Head of theState. The following message from the PeruvianCongress to the President of the Republic illustrates thatterminology: " Resolution Legislativa No. 11828, Lima,3 de abril de 1952. Senor: El Congreso, en ejercicio de laatribucidn que le conflere el inciso 21 del articulo 123 dela Constitucidn politico del Estado, ha resuelto ratificar elConvenio Comercial suscrilo con la Repiiblica Federal deAlemania, en Bonn, el 20 de julio de 1951." (ReuistaPeruana de Derecho International, 1952, pp. 130-131).On the other hand, article 27 of the French Constitutionof 1946 uses what is declared to be more precise languagein this connexion: " Article 27. Treaties relative to theinternational organization, peace treaties, commercialtreaties, treaties involving national forces, treaties rela-tive to the personal status and property rights of Frenchcitizens abroad, and those that modify French internallegislation, as well as those involving cession, exchange oraddition of territories shall not become final until theyhave been ratified by virtue of a legislative act {en vertued'une loi).

Law of treaties 113

•whether the signatures are those of the personalrepresentatives of the Head of the State or of therepresentatives of the State as such.38 The motiveunderlying this conception of signature — which isnot here admitted as accurate — is, by diminishingits legal importance, to emphasize the absence of anylegal obligation to confirm the signature. No suchinterpretation of the value of the signature is necessaryin support of what is an unchallenged rule. This, ashas been suggested in the comment to article 5 and aswill be suggested presently, does not mean that signa-ture is of no legal value or effect.

The wording used in the present paragraph has beenadopted in order to accommodate the eventual occur-rence — as is the case with the conventions of theInternational Labour Organisation or of some treatiesconstituting international organizations where thetreaties are adopted by the Conference and submittedfor subsequent acceptance by States — of ratificationof treaties which are not subject to signature (althougheven in these cases the signature is implied in mostcases by the participation of the representative of theState in the drafting and adoption of the treaty by aconference or an organ of an international organiza-tion).

3. The second paragraph of article 6 is concernedwith the question which is often discussed but whosepractical importance is distinctly limited, namely,whether treaties, in the absence of an express or impliedprovision to the contrary, require ratification. Forthe reasons stated below two — seemingly contradic-tory — versions of the relevant paragraph may pro-perly be considered. In the first version that questionis answered in the affirmative. This version of thesecond paragraph by obvious implication rejects theview that treaties do not require ratification unlessthey provide expressly or implicity that they aresubject to ratification. The reasons underlying thatview may be stated as follows: The importance of thesubject matter of treaties is such that unless the partieshave waived the requirement of ratification the lattermust be considered essential to the international vali-dity of the treaty. There is little persuasive force in

38 The legal position in the matter has been putcorrectly, it is believed, by Judge Basdevant in hisdissenting opinion in the Ambatielos case between Greeceand the United Kingdom (Preliminary objection). Hesaid: " The drafting and the signature of an internationalagreement are the acts by means of which the will of thecontracting States is expressed; ratification is the actby which the will so expressed is confirmed by the compe-tent authority, for the purpose of giving it binding force "{I.C.J. Reports 1952, p. 69). Similarly, any tendency todistinguish between ratification as understood in thelanguage of general jurisprudence and a conception ofratification peculiar to international law (or betweenthe notion or ratification in earlier and in modern inter-national law) was, in effect, discouraged by the learnedjudge in the following terms: " When they signed theinstruments of ratification — act by which they confirmedthe agreement reached by their respective plenipoten-tiaries and by which they gave the declaration a defini-tive character of the will of the contracting States —the President of the Greek Republic and the BritishMonarch were merely confirming what had alreadybeen declared by their plenipotentiaries."

the argument that as numerous treaties expresslyprovide for ratification it must be considered that inall other cases the parties must be deemed to havewaived it. For the inclusion of an express provisionin the matter of ratification may mean no more thanthat the parties intended to emphasize the solemnityand the importance of the treaty and that they desiredto leave no room for uncertainty in the matter. Ithas alos been pointed out that by party of reasoningit might be argued that as numerous treaties lay downexpressly that they shall enter into force upon signature(i.e., that they do not require ratification), the absenceof any reference to the matter would mean thatratification is indicated. The controversy surroundingthe subject is to a large extent theoretical. The moreformal type of instruments designated as treaties andconventions between Heads of States or States include,practically without exception, express provisions onthe subject. They are to be found on occasions,admittedly rare, also in exchanges of notes and inter-departmental agreements. Whatever may be theirdescription, treaties either provide that the instrumentshall be ratified or, by laying down that it shall enterinto force on signature or on a specified date or event,dispense with ratification. This is the regular practice.Silence on the subject is exceptional. In view of thisthe elaboration, in the second paragraph of article 6,of the situations in which, in the absence of any pro-vision on the subject, ratification is not required mayseem otiose. However, it is one of the purposes ofcodification to provide for cases — even if rare — inwhich the subject is not expressly regulated by theparties.

4. As stated, the practical importance of article 6 asformulated is somewhat reduced by the fact that anincreasing number of treaties provide, without refer-ence to ratification, that they shall enter into force onsignature or on a specified date or event thereafter.Nearly one-third of the bilateral instruments betweenStates or organizations of States contain provisions tothat effect. That circumstance may well act as areminder of the element of exaggeration inherent in theoccasional statements to the effect that modern prac-tice has tended to reduce the importance of the signa-ture— a statement which must be received with noless caution than the view that recent practice shows atendency to dispense with ratification in favour eitherof signature or of new methods such as acceptance.The fact is that both signature and ratification are— apart from accession — the typical means of assum-ing treaty obligations. It might be conducive toclarity and simplicity if they were to remain so. Itmay now be convenient to comment on the first versionof paragraph 2.

5 (a). " In the absence of ratification a treaty is notbinding upon a contracting party unless: (a) the treatyin effect provides otherwise by laying down, withoutreference to ratification, that it shall enter into forceupon signature or upon any other date or specificevent other than the ratification of that particulartreaty." As mentioned, the various methods of dis-pensing with ratification — in particular, the precisedetermination of the date of entry into force — havebecome a frequent feature of international practice in


relation to bilateral agreements.39 The " other date ",referred to in this paragraph, is occasionally left tofuture determination by agreement of the parties.Occasionally it is stated to be the " appointed date "or a date prior to signature.

" Thus, to give examples taken from one volume,chosen at random, of the United Nations Treaty Series —vol. 76 (1950) — more than one-third of the instrumentsreported there provide that they shall enter into forceupon signature. In the second category — entering intoforce upon any other date — the Trade Agreement of15 December 1958 between Turkey and Denmark providesthat it shall enter into force on 1 January 1949 (ibid.,p. 21). The Exchange of Notes Constituting an Agree-ment, of 28 February 1945, between the United Statesof America and the Provisional Government of theFrench Republic relating to the Principles Applyingto the Provision of Aid to the Armed Forces of the UnitedStates laid down that it should enter into force on thedate of signature with retroactive effect as from 6 June 194(ibid., p. 214). In the third class — entering into forceupon a specified event — the Payment Agreement of15 December 1948 between Denmark and Turkey providedthat it shall enter into force on the same day as theTrade Agreement signed by the parties (ibid., p. 7). Asimilar provision was included in the Exchange of Notesbetween the Netherlands and New Zealand of 18 Octo-ber 1947 constituting a Supplementary Agreement tothe General Agreement on Tariffs and Trade (ibid.,p. 42). It is of interest to note that in the above-tioned volume of the Treaty Series only two treatiesprovide for ratification, and only one for " approval "(the agreement between the Food and Agriculture Orga-nization and the World Health Organization). In respectof one agreement only, published in the volume in ques-tion, the position as to ratification remained partlyundetermined, namely, the agreement of the Netherlandswith the International Refugee Organization of20 June 1950 relating to the care to be given to fortyrefugees resident in the Netherlands (ibid., p. 56)" partly undetermined ", for this agreement, in view ofthe urgency of its execution, probably falls within the cate-gory of agreements not requiring ratification havingregard to " attendant circumstances " (see below, para-graph 5 (c)). The footnote of the Secretariat of theUnited Nations states that the agreement came intoforce on the date of signature. The only other agreementin that volume which contains no provision on thesubject is the Exchange of Notes of 8 November 1945between France and the United States of Americasupplementing a previous agreement, which enteredinto force on the date of signature, relating to the Prin-ciples Applying to Mutual Aid in the Prosecution of theWar (ibid., p. 153). The agreement is one which pro-bably falls within the category of declarations of policyrather than of legal instruments (see article 1 above).A footnote appended by the Secretariat of the UnitedNations states that the notes came into force on the dayon which they were exchanged. The above volume of theTreaty Series, which is believed to be typical with respectto bilateral treaties, in addition to providing examplesof contractual instruments entering into force withoutratification is instructive as providing further evidencethat, in view of the normal regulation of that questionin the instruments themselves, the question whethertreaties require ratification is, while of considerabletheoretical interest, of limited practical importance.

In a matter of this description, in which doctrinalcontroversy has to a considerable degree obscured therealities of the problem which confronts the task ofcodification, it is useful to scrutinize closely the practiceof agreements, and the Special Rapporteur has thereforethought it useful to verify the results of the analysis ofvolume 76 of the United Nations Treaty Series by anexamination of volumes 66, 56 and 46 of the TreatySeries. Volume 56 is entirely devoted to a mimeographedreproduction of schedules of tariff concessions in connexion-with the General Agreement on Tariffs and Trade, and

The nature of the " event" upon which the treaty is toenter into force is described in terms of great diversity.Thus the series of agreements concluded in 1947 be-tween the United Kingdom and Ceylon on matters ofdefence, external affairs and trade provided that they" will take effect when the constitutional measuresnecessary for conferring on Ceylon fully responsiblestatus within the British Commonwealth of Nationsshall come into force " (United Nations, Treaty Series,vol. 86, p. 28). The Agreement of 5 June 1946 betweenthe Government of the United Kingdom and theGovernment of Canada for the Avoidance of DoubleTaxation provides, in article 10, that it shall come intoforce " on the date on which the last of all such thingshave been done in the United Kingdom and Canadaas are necessary to give the Agreement the force oflaw in the United Kingdom and Canada respectively"(ibid., p. 5).

5 (b). " In the absence of ratification a treaty is notbinding upon a contracting party unless: (b) the treaty,while providing for ratification, provides that it shallcome into force prior to ratification." There arefrequent examples of this type of treaty. For instance,the Trade and Payments Agreement between Denmarkand Argentina of 14 December 1948, after providing,in article 41, that it " shall be approved 40in conformitywith the constitutional procedure of each of theHigh Contracting Parties ", lays down that " withoutprejudice to its final approval, this Agreement shallenter into force provisionally fifteen days from thedate of signature and shall remain in force for five

may therefore be left out of account. Volume 66 recordsthe following position: Twelve instruments, being ex-changes of notes, entered into force on the date of thefirst or the second note; nine instruments, not beingexchanges of notes, entered into force on the date ofsignature; six instruments entered into force on a datefixed by the treaty. It thus appears not only that innot one out of twenty-six instruments was the questionof ratification left open, but that all these agreementsentered into force without any ratification at all (exceptin one case in which the approval of the national Par-liament of one party — but not ratification —- wasstipulated). In volume 46 ten instruments, being ex-changes of notes, entered into force immediately; fourother agreements entered into force upon signature;and four others upon the date of exchange of ratification.In one case — that of the Franco-Belgian Convention of29 December 1947 (p. 112) — the convention came intoforce provisionally upon signature and finally uponexchange of ratification. Of the three remaining in-struments the Protocol of the Circulation and Traffic inObscene Publications (p. 170) provided that States maybecome parties by (a) signature without reservation asto approval; (b) acceptance to be effected by the depositof a formal instrument with the Secretary-General ofthe United Nations. The Parcel Post Agreement of15 July 1949 between the Philippines and Australia(p. 216) laid down that the Agreement shall come intoforce upon ratification or approval by the proper autho-rities but that, pending ratification or approval, it maybe put into force administratively on a date to be mutuallysettled between the postal administrations of the twocountries. Again, in no case was the question of thenecessity for ratification left in abeyance.

40 The English text has the term " approved ", whilethe French text lays down that the " accord sera ratifie ".The Spanish text provides: " El presente Convenio seraaprobado ". It is probable that the intention was to referto international ratification, as distinct from internalconstitutional approval.

Law of treaties 115

years" subject to a right of denunciation after thefirst year. The Franco-Belgian Convention for theAvoidance of Double Taxation signed on 29 December1947 provided, in article 10, that it shall be ratifiedand the instruments of ratification exchanged as soonas possible, but that it shall enter into force provisi-onally on the date of its signature (United Nations,Treaty Series, vol. 46, p. 117).

5 (c). " In the absence of ratification a treaty is notbinding upon a contracting party unless: (c) the treatyis in the form of an exchange of notes or an agreementbetween government departments." Normally theform or designation of the treaty cannot be regardedas relevant to the question of necessity for ratification.For, as already mentioned, exchanges of notes haveoccasionally been made subject to ratification. How-ever, as a rule — and this applies also to agreementsconcluded between government departments — theyspecify the date on which they shall enter into force andthus, by obvious implication, dispense with ratifica-tion. That date may be — and usually is — the dateof the exchange of the notes. In some cases it is laiddown that the agreement established by the exchangeof notes or by the inter-departmental arrangement41

shall enter into force on a date to be settled by theparties. To that extent the matter is governed byparagraph 2 (a) which lays down, in effect, that thetreaty is binding without ratification if the parties,without referring to ratification, determine the dateor accept a date on which the treaty shall enter intoforce.

In general, exchanges of notes, apart from excep-tional cases, leave no doubt as to the intention of theparties to dispense with ratification. With regard tosuch exceptional cases, reasons of convenience, theuniformity of existing practice, and considerations ofexpedition which characterize exchanges of notes— and agreements between government departments—urge acceptance of the presumptive rule that they donot require ratification.

5 (d). " In the absence of ratification a treaty is notbinding upon a contracting party unless: (d) the atten-dant circumstances or the practice of the ContractingParties concerned indicate the intention to assume abinding obligation without the necessity of ratifica-tion." The nature of the attendant circumstanceswhich make ratification unnecessary cannot be cir-cumscribed in advance. They will as a rule coveragreements of limited scope concluded by Governmentsand requiring speedy action. The agreement referredto above (note to paragraph 2 (a)), between the Nether-lands and the International Refugee Organization forthe care of forty refugees in Holland may be mentionedas an example. Also, if it can be shown that thepractice of a contracting party has been such as not torequire the ratification of a particular type of agreement

" Thus, for instance, the Parcel Post Agreement bet-ween the United States and Korea (signed by Korea on17 February 1949 and by the United States on13 April 1949) concluded between the Post Office Depart-ment of the United States of America and the Departmentof Communications of Korea laid down that it shouldtake effect on a date to be mutually settled between theadministrations of the two countries.

that party will be bound by the instrument in questionunless the requirement of rati fication has been ex-pressly made part of the agreement. To that extent thesubject of this paragraph 2 (d) is identical with thatof paragraph 2 (c). Thus Sir Arnold McNair haspointed out that, in view of the consistent custom ofinserting a provision for ratification in all cases inwhich the parties desire that procedure to be followed,the Government of the United Kingdom does notdeem it necessary to ratify a treaty which containsno such clause. In particular, he states, ratificationis unnecessary, from the point of view of the UnitedKingdom, with regard to inter-governmental agree-ments even if they are concerned with matters ofimportance, for instance, arbitration agreements orboundary agreements; protocols or declarations " oradditional articles modifying or adding to the principalagreement which does or did not require ratification;and " many exchanges of notes, agreements establishingmodi vivendi or other provisional arrangements, andagreements prolonging the duration of commercialtreaties and extradition treaties " (The Law of Treaties,Oxford, 1938, pp. 85-87).

6. The general manner of formulation of this partof paragraph 2 of article 6 is deliberate. No attempthas been made to define in detail the nature of theattendant circumstances which raise the presumptionthat no ratification was intended and that none isrequired. However, in some cases the practice ofStates has assumed the complexion of a well established— though not necessarily rigidly defined — custom.It is that custom which makes it permissible to statethat, in general and subject to any express provisionsto the contrary, interdepartmental agreements andarrangements which are obviously concerned withmatters of limited importance do not require ratifi-cation. The same applies to other instruments — wha-tever their designation — which, within a limitedsphere, are supplementary to agreements previouslyconcluded. As already stated, in all these cases it isthe content of the instrument and the attendantcircumstances rather than the designation of the in-strument which are decisive. Although there is occa-sionally some correlation between the designation ofthe instrument and its content, this is not always so." Conventions " or " treaties " is the term often usedto cover agreements on matters of a general characterand of obvious political importance—just as in suchcases it is frequently the Head of the State or theState as such who are described as the contractingparties. However, these designations of the instrumentand of the parties thereto are occasionally used inconnexion with instruments of limited importance orof a purely technical character. The decisive consid-eration is that there are factors which make ratificationappropriate and natural in some cases, but not inothers. Thus, for instance, a treaty, bilateral or mul-tilateral, requiring extensive changes in municipallaw and detailed inter-departmental consultation in

" In the Ambatielos case Judge McNair was preparedto hold, if necessary, that a declaration which, in hisview, did not form part of a ratified treaty was bindingwithout ratification having regard to the practice of theUnited Kingdom (I.C.J. Reports 1952, p. 60).

116 Yearbook of the International Law Commission, VoL II

this connexion, may require ratification notwithstand-ing its designation — though it is natural to assumeand to expect that in such cases the designation of thetreaty will not be that of an exchange of notes or of anagreement between administrative agencies. As arule the previous practice, in the matter of ratification,of the State concerned may legitimately be relied upon.It is not possible, in commenting upon this part ofarticle 6, to go beyond this necessarily general state-ment. In practice, as previously suggested, the ques-tion arises only in rare cases. As a rule treaties, ofwhatever description, leave no doubt as to the inten-tion of the parties in the matter of ratification. But arule there must be both in order to meet the rare casesand as an inducement to governments, in case theydesire the ratification of an instrument which is herestated as normally not requiring it, to give clear expres-sion to their intentions. In general, with regard tomultilateral treaties — because of their importanceand frequently, their resulting implications in themunicipal sphere — more stringent porof will be requi-red to show that, in the language of paragraph 2 (c),the " attendant circumstances and the practice of theparties" are such as to justify the conclusion that noratification is required.

7. However — and this consideration leads to thealternative version of the second paragraph of article 2— if there must be a rule, if the cases in which theparties in effect fail to regulate the matter are con-spicuous for their rarity, and if the rule as stated aboveprovides for so many exceptions as almost to betransformed into a principle opposed to that whichseemingly underlies it, is it not preferable to lay down,as expressing either the existing or the desirable law,that no ratification is required unless the partiesprovide for it expressly ? Constant practice of govern-ments shows that, with minor exceptions, in all casesof multilateral treaties of importance express provisionis made for ratification. It would seem reasonable toassume that with regard to such treaties the absenceof provision for ratification shows that the partiesdid not wish ratification to be a condition of entryinto force. For it could hardly be assumed that thematter escaped their attention. Undoubtedly, itwould be better if they had said something, e.g., thatthe treaty shall enter into force upon signature orupon some specified date or event. They do so occa-sionally.43 However, having regard to the constantpractice of expressly providing for ratification wherethe parties wish the treaty to be ratified, the implica-tion of necessity for ratification seems an inconclusiveinference from their mere silence. In fact in those

48 The Agreement of 31 December 1934 concerningpostal exchanges between Denmark, Finland, Iceland,Norway and Sweden was concluded between the PostOffice authorities of those countries. It laid downthat it shall enter into force on 1 January 1935. TheAgreement of 3 April 1939 between Belgium, France andthe Netherlands concerning navigation on the Rhineprovided that it shall enter into force on the date ofsignature (M. Hudson, International Legislation, vol. 8,p. 283). The Nyon Arrangement of 14 September 1937and the Supplementary Arrangement of 17 Novem-ber 1937 concerning attacks upon merchantmen in theMediterranean provided expressly that they shall enterinto force immediately (ibid., vol. 7, pp. 831, 841).

rare cases in which a treaty has been silent on thematter, there has been a tendency to assume that norequirement of ratification was intended.44 For thesereasons it has been deemed convenient to presenthere an alternative version of the second paragraphof article 6 — a version according to which ratificationis not required if it is not expressly provided for in thetreaty. As will be submitted — in notes 1 and 2 tothis comment — the actual practical difference be-tween these two versions is not substantial. Thepresent alternative version, in addition to the con-siderations outlined above, takes into account thechanges which have taken place in internationalintercourse in the matter of conclusion of treaties,These changes, especially in relation to bilateral treatiesare the result of factors which are not of a merelytransient character. In the first instance, as theresult of developments in the sphere of telecommunica-tions and facilities for travel generally, ratification isno longer a confirmation of a treaty negotiated byplenipotentiaries out of touch with the central autho-rities of their State and unable to receive day-by-dayinstructions with regard both to the details of thenegotiations and to the signature itself. Secondly,whatever may be the political divisions of the world»the growing interdependence of States, and the mani-fold variety of their contracts have added very substan-tially to the range of treaties and to the necessity forexpedition in bringing them into force. The increasingand already largely consummated tendency towardssimplification of the procedure in the treaty-makingprocess is an inevitable consequence of these changes.

Note

1. With regard to the main question connectedwith the present article, namely, whether in theabsence of relevant provisions in the treaty ratifica-tion is required in order to make the treaty binding,the solution, or solutions, outlined by the SpecialRapporteur differ, in effect, but little from thattentatively adopted by the Commission. In the firstversion of paragraph 2 they differ from it in so far asthey envisage a wider range of cases in which the partiesmust be presumed to have intended to dispense withratification. However, even in the article tentativelyadopted by the Commission the range of exceptionswas so wide as to leave but little scope for the operationof the principal rule laying down that in the absence ofrelevant provisions a treaty must be ratified in orderto be binding. In view of this there is only a slightpractical difference between that formulation and theseemingly contrary rule, formulated in the alternativeversion of paragraph 2, that in the absence of expressprovisions requiring ratification no ratification is

44 The Final Act of the Conference of Wheat Export-ing and Importing Countries of 25 August 1933 wasstated to have entered into force on that day (League ofNations, Treaty Series, vol. 141, p. 71; M. Hudson,International Legislation, 1932-19S4, vol. 6, p. 437).The Act contained no reference to the subject. Thiswas also the case with regard to the Agreement of20 December 1935 between the United Kingdom, Canada,Australia, New Zealand and South Africa, on the onehand, and Germany on the other, concerning war graves(ibid., vol. 7, p. 213).

Law of treaties 117

necessary for the validity of the treaty. This conclu-sion is, on the face of it, startling. But it is startling-only if we forget that a wholly unqualified rule requir-ing ratification is contrary to practice and thatqualifying exceptions, if numerous, tend to bridge thegap between the opposing formulations.

2. As there is no substantial difference between thetwo seemingly opposed solutions as expressed in thetwo alternative versions of paragraph 2, it wouldappear that it does not matter very much whichsolution is accepted — although purely practicalconsiderations counsel the adoption of a rule whichis precise and clear. As a matter of doctrine the differ-ence between the two methods of approach is substan-tial. One will recommend itself to those who, forreasons of constitutionality, of the importance of theinterests affected, and of the historic function ofratification as a natural concomitant of signature,consider ratification to be essential unless expresslydispensed with. The second solution will be favouredby those who, having regard to the requirements ofinternational intercourse in modern conditions and tocogent deductions from actual practice, see in thesignature an act of a significance greater than mereauthentication and establishment of the text. Asstated, the practical difference in the effect of eithersolution is small. The importance of the subject isfurther reduced by the circumstance that the questionhardly arises in practice. For with minor exceptionstreaties either provide that they shall be ratified or,in various ways, indicate conclusively the intentionof the parties to bring them into effect without ratifi-cation. While, as shown in the comment to article 11,there are examples of States attempting to avoid atreaty on the ground that it was not ratified in accor-dance with the requirement of their constitution, thereare probably no instances of their attempting to do soon the ground that the treaty required ratification asa condition of its international validity and that it wasnot in fact ratified. That circumstance does not absolvethe Commission from the task of formulating a rulefor the very small residuum of cases in which the partieshave left the question open. For it is only the existenceof a clear presumptive rule which will induce the partiesto adopt an explicit provision in case they desire aprocedure differing from that as expressed within theframework of general codification.

3. In formulating the present article the specialRapporteur has avoided undue elaboration of mattersof detail — some of them obvious — connected withratification. These matters include the principle,which ought not to give rise to controversy, that wher-ever in an international instrument there is a referenceto a "treaty", such reference means a valid treaty,i.e., a treaty which has been ratified, and that wherereference is made to " parties to a treaty " such refer-ence means parties who have ratified a treaty. This— and no other — is in fact the import of the relevantpronouncement in the Judgement of the PermanentCourt of International Justice given in 1929 in theCase concerning the territorial jurisdiction of the Inter-national Commission of the River Oder (Publicationsof the P.C.I.J., No. 23, pp. 17-22), where referencein article 338 of the Treaty of Versailles to a conventionto be drawn up by the Allied and Associated Powers

was held to mean, in relation to Poland, a conventionratified by Poland. This was so, in particular, seeingthat the convention in question — the BarcelonaConvention — provided expressly that it was subjectto ratification. In view of this the Court held that theBarcelona Convention, not having been ratified byPoland, could not be invoked against her.46 InPhillipson and Others v. Imperial Airways Ltd. [1939],A.C. 337, the British House of Lords held that theterm " High Contracting Party ", used in a contract ofcarriage and referring to the Warsaw Conventionof 1929 on Air Transport, included Belgium, who hadsigned but not ratified the convention. The decision canprobably be explained by reference to the specialcircumstances of a commercial contract. In a subse-quent communication addressed to the United States,the Government of the United Kingdom seems tohave dissociated itself from that decision. It said:" H.M. Government are of the opinion that the ordi-nary meaning of High Contracting Party in a conven-tion is to designate a party who is bound by the pro-visions of a convention and therefore does not cover asignatory who does not ratify it." The United StatesDepartment of State agreed with that view (Hackworth,Digest of International Law, vol. 4, p. 373).

4. In general, it is not the ratification, but theexchange or deposit of ratifications, which brings thetreaty finally into force. That rule comes moreconveniently within the purview of part IV, which isconcerned with the operation and enforcement oftreaties, and it is proposed to examine it there.

5. The Special Rapporteur did not consider it neces-sary to elaborate the principle, expressed in paragraph 1,that ratification is a formal document — whichmeans, in any case, that it is a written document.Writers have occasionally discussed the questionwhether ratification may be in the form of an oral dec-laration. It is. believed that there are no instances ofsuch ratification and that, in any case, the considera-tions which require the written form for the conclusionof a treaty (see article 17 below) apply, a fortiori, toits ratification. It is of the essence of ratificationthat it should be a deliberate and formal act directedexclusively to that purpose. For similar reasons it isdifficult to admit the legal possibility of implied rati-fication, i.e., ratification by conduct. When a party orthe parties have in fact acted upon a treaty whichprovided for ratification, the correct legal constructionis not that they have ratified it by conduct butthat their conduct amounts to a waiver of the re-quirement of ratification.

Article 7

Accession

1. A State or organization of States may accedeto a treaty, which it has not signed or ratified, byformally declaring in a written instrument that thetreaty is binding upon it.

*• This judgement of the Court is occasionally referredto as an authority for the proposition that treatiesrequire ratification. However, this is hardly the trueimport of the judgement.


2. Accession is admissible only subject to the provi-sions of the treaty.

3. Unless otherwise provided, accession may beeffected at any time after the establishment of thetext of the treaty.

Comment

1. In the present article the expression " accession "is used as synonymous with "adhesion". Attemptshave occasionally been made to give different meaningsto these terms. It is not believed that such attemptsfind support in international practice, except that asa rule " accession " is used in the English and adhesionin the French language.

2. " A State or organization of States may accedeto a treaty, which it has not signed or ratified..." Theexplanation of the words " or ratified " is that occasi-onally — though not frequently — a treaty makes itpossible for the parties who participated in a conferenceto adhere to a treaty which they signed but for somereason failed to ratify within the period described bythe treaty. In such cases there would appear to beroom for a modification of the usual — and logical —practice of limiting the right of accession to non-signatory States. Thus, for instance, the Protocolof 19 September 1949 on Road Signs and Signals,which lays down that ratifications thereof could takeplace only up to 1 January 1950 (article 56 (3)),provides that " from 1 January 1950, this Protocolshall be open to accession by States signatories to theConvention on Road Traffic and by States accedingor having acceded to it ". This seems also to be thecase with regard to the Convention approved by theGeneral Assembly on 9 December 1948 on the Preven-tion and Punishment of the Crime of Genocide, whichsets the date of 1 January 1950 as the date after whichStates invited to sign it may accede to the Convention.This, again, may refer to States which, availing them-selves of the invitation, have signed it but have failedto ratify it by 1 January 1950. Where no time limitis set for ratification by the signatories, it is difficultto see why such signatories should not at any timeproceed to ratification instead of accession.*• Mostmultilateral conventions expressly limit the right ofaccession to non-signatory States. Thus the Inter-national Telecommunications Convention of 2 October1947 provides, in article 17, that "the Government ofany country, not a signatory to this Convention, mayaccede thereto at any time. . ." The Telecommunica-tions Convention of 9 December 1932 contained, inarticle 4, an identical provision (M. Hudson, Interna-tional Legislation, vol. 6, p. 113). The Geneva Pris-oners of War Convention of 12 August 1949 provides,in article 139, that "from the date of its coming intoforce, it shall be open to any Power in whose namethe present Convention has not been signed, to accede

to this Convention". Similar provisions have beenadopted in the Protocol of 23 April 1946 to prolongthe International Sanitary Convention for AerialNavigation of 1944 (United Nations, Treaty Series*vol. 16, p. 179); in the various Peace Treaties signedin Paris on 10 February 1947; in the Convention of2 December 1949 for the Suppression of the Trafficin Persons and the Exploitation and Prostitution ofOthers; in the Sanitary Convention for Air Navigationof 2 April 1933; and in many others. On the otherhand, the General Agreement on Tariffs and Tradeof 30 October 1947 (United Nations, Treaty Series,,vol. 55, p. 194), the Protocol of 19 September 1949 onRoad Traffic and some other instruments are open to.the construction that States which have signed butnot ratified them may accede to them (although notime limit is provided for ratification). In view ofthe great — and to some extent confusing — varietyof treaty provisions on the subject it seems advisableto adopt a fairly wide formulation of the relevantprovision of article 7. It must be a matter for consid-eration whether the codification of this subject oughtnot to be accompanied by an attempt to introduce inthis respect a measure of uniformity into a practicewhich may otherwise become a source of confusion.47

3. The article as formulated provides for the possi-bility of accession by international organizations. Thisis in accordance with the scheme of the present draftwhich recognizes the treaty-making power both ofStates and of organizations of States. Obviously thepractical possibility of international organizationsbecoming parties to multilateral treaties is limited.The World Meteorological Organization cannot, consis-tently with its purpose, aspire to participate in theconvention concerning, say, the regulation of whaling.However, any limitation of the right of internationalorganizations to become parties, by accession, tomultilateral conventions must take place, by referenceto the above considerations, in accordance with para-graph 2 of the article, in which the right of accessionis dependent upon the parties to the treaty.

4. Paragraph 2 of the article lays down the self-evident principle that parties to a treaty must agreeto the participation, by way of accession, of any newparties. The principle that there is no right of acces-sion apart from the provisions of the treaty wasclearly laid down by the Permanent Court of Interna-tional Justice in the Case concerning certain Germaninterests in Polish Upper Silesia (Judgement No. 7,pp. 28, 29.)

" As is the case with regard to the General Treatyof Peace and Amity of 7 February 1923 between theCentral American Republics which, while setting notime limit for ratification, provided that " any of theRepublics of Central America which should fail to ratifythis treaty shall have the right to adhere to it while it isin force."

" Thus, for instance, the Agreement of 22 Novem-ber 1950 on the Importation of Educational, Scientificand Cultural Materials provides in article IX (1) that itshall remain open for signature by all Member States ofthe United Nations Educational, Scientific and CulturalOrganization, all Member States of the United Nationsand any non-member State if subsequently invited.The same article provides that the Agreement shall beratified. Article X provides that States referred to inparagraph 2 of article IX (1) may accept this Agreementfrom 22 November 1950. It is difficult to follow themeaning of article X unless its intention is to make itpossible for States referred to in article IX (1) to becomeparties without resorting to ratification. Article IXseems to constitute an accession clause of indefiniteduration and irrespective of the question whether theAgreement has entered into force.

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A State cannot be allowed to foist itself against theirwill upon the parties to an existing treaty. Such•consent is as a rule given in the accession clause of thetreaty. It may also be given subsequent to its conclu-sion, as, for instance, in the North Atlantic Treatyof 4 April 1949 which provides, in article 10, that theparties may, by unanimous agreement, invite any otherEuropean State possessing the necessary qualificationto accede to the Treaty (United Nations, Treaty•Series, vol. 34, p. 243). Similarly, the treaty of 3 No-vember 1934 establishing the Balkan Entente laid•down, in article 7, that it was open to accession byother States, " such accession to take place only ifall the High Contracting Parties consent thereto "{M. Hudson, International Legislation, vol. 6, p. 939).The treaty may limit the right of accession on the partof certain categories of States, as, for instance, in theInternational Civil Aviation Convention of 7 December1944 which laid down, in article 92, that the conventionshall be open for adherence by Members of the UnitedNations and States associated with them, and Stateswhich remain neutral during the present world con-flict " (ibid., vol. 9, p. 1950). A treaty may alsoprovide that, in addition to the States referred to inthe treaty, a designated body may declare any otherState or any category of States eligible for accession.Thus the Convention on Road Traffic of 19 September1949 provides, in article 27, that, in addition to Statestherein designated, any other State may accede" which the Economic and Social Council may byresolution declare eligible ". Similar provisions arecontained in the Convention of 6 April 1950 on theDeclaration of Death of Missing Persons (article 13).In case of such delegation of the exercise of the rightof assent to accession it must be presumed that thebody thus designated determines the matter by a votein conformity with its accepted procedure.

5. While, as a rule, definite provision for accessionis made in the treaty itself, occasionally the treatyleaves to some subsequent action or condition thedetermination of the question of accession. Thus theGeneral Agreement of 30 October 1947 on Tariffs andTrade lays down, in article 23, that accession may takeplace, inter alia, by " a government not party to thisAgreement.. . on terms to be agreed between suchgovernment and the contracting parties " (UnitedNations, Treaty Series, vol. 55, p. 194). This does notnecessarily mean " all the contracting parties ". Thesein any case may include States which were not partiesto the original agreement but which acceded at asubsequent date. When, as in the Monetary Conven-tion of 5 November 1878, a treaty expressly providesthat unanimous agreement of the contracting partiesis necessary for the accession of a new party —" contracting parties " including presumably partieswhich subsequently acceded to the Treaty — theposition leaves no room for doubt. Occasionally, asin the Geneva Convention of 6 July 1906, it isprovided that non-signatory States shall have theright to accede provided that within a prescribedperiod no contracting party has raised objection tothe adhesion. However, the treaty may provide thatunanimity is not required. Thus the Convention of13 October 1919 on the Regulation of Aerial Naviga-tion provided, in article 42, that after 1 January 1923

accession " may be admitted if it is agreed to by atleast three fourths of the signatory and adheringStates " voting in a manner prescribed by the Conven-tion. In general, in multilateral conventions estab-lishing international organizations the organs of theorganization have been given power to permit acces-sion by a decision falling short of unanimity.

6. In so far as the original instrument makes acces-sion dependent upon some subsequent action or condi-tion, there is room, so far as the future developmentof the law is concerned, for relaxing in cases of doubtthe requirement of unanimous consent. In theorythere is force in the view that every contracting partymust possess the right to agree to — or reject — theparticipation of a new party in the contractual relation.However, multilateral treaties regulating matters inthe sphere of the general interest of the internationalcommunity cannot properly be viewed as mere contrac-tual bargains. There is in them an inherent tendencyto universality which deserves encouragement. Thus,for instance, there is probably little justification, otherthan that of legal theory,48 for making accession to aconvention such as that for the Pacific Settlement ofInternational Disputes dependent upon agreementbetween the contracting parties. This was whatThe Hague Conventions of 1899 and 1907 on the subjectin fact provided. But it does not appear that when,after the first World War, some newly created States— such as Poland, Czechoslovakia and Finland —acceded to these conventions any serious attempt wasmade to act upon the provision requiring the consentof all the contracting parties. Except where the treatycontains rigid provisions to the contrary, the resultought to be avoided which would permit a singlecontracting party to prevent the accession of a Stateto a humanitarian and non-political convention intrin-sically aiming at general application.

7. Such restrictive interpretation of the rule ofunanimity is especially indicated when the originaltreaty makes accession dependent upon the fulfilmentof certain conditions of status or otherwise and thequestion arises whether the party seeking to accedefulfils these conditions. This may include the questionwhether that party is a State.49 In many cases theanswer to that question can properly be given by anytribunal upon which the parties have conferred juris-diction in the matter of interpretation of the clausesof the treaty. In the absence of such compulsoryjurisdiction of an international tribunal or of voluntarysubmission of the ensuing dispute to judicial determi-nation there is no occasion for adhering rigidly to theprinciple of unanimous consent of all the contractingparties. At the time of the original establishment of

48 Or, possibly, for the reason — not unconnectedwith doctrines of legitimacy — that the contractingparties may wish to reserve for themselves freedom ofaction with regard to any States which may arise subse-quently to the conclusion of the treaty.

19 Thus in connexion with the establishment of theso-called State of Manchukuo the question arose, inconnexion with possible attempts by Manchukuo toaccede to multilateral conventions, whether the essentialcondition of accession, namely, the quality of statehoodas required by international law, was present in thatcase.


the text of the treaty the vote of one State cannot infact prevent the insertion of the accession clause.There is no reason why such faculty should be enjoyedby it at a subsequent stage. In view of this, the pro-posed second paragraph of article 7 abstains from layingdown the rule, which is to be found in some other drafts,that a State can adhere to the treaty only subject tothe unanimous consent of the other contractingparties.

8. " Unless otherwise provided, accession may beeffected at any time after the establishment of thetext of the treaty." The present article adopts, in thisrespect, a solution different from some previous drafts,including that of the Harvard Draft Convention(article 9 (b)), which laid down that a State can accedeto a treaty only after that treaty has come into force.This latter solution has occasionally been stated to bethe only one which is consistent with logic seeing thatunless a treaty has entered into force there is nothingto which a State can accede. The compelling characterof that logical argument is open to doubt. There seemsto be no convincing reason why the object of accessionshould not be an instrument which will enter into forceand which is identical with an already establishedtext as distinguished from an instrument which hasalready entered into force. Moreover, the view whichunderlies the present article is believed to be supported,on the whole, by practice. Undoubtedly some, thoughnot many, treaties provide expressly that accessioncan be effected only after they have entered intoforce. Thus the General Treaty of 27 August 1928 forthe Renunciation of War provided, in article 3, " thatit shall, when it has come into effect... remain open aslong as may be necessary for adherence by all thePowers of the World ". The four Geneva Conventionsof 12 August 1949 provide uniformly that " from thedate of its coming into force, it shall be open to anyPower in whose name the present Convention has notbeen signed, to accede to this Convention ". TheConvention on Aviation Salvage at Sea of 29 September1938 was to the same effect (M. Hudson, InternationalLegislation, vol. 8, p. 145). The Convention of 22 No-vember 1928 concerning International Exhibitionsprovided for accession " at any time after the cominginto force of the present convention " (M. Hudson,International Legislation, vol. 4, p. 2571). So did theConvention of 31 May 1928 concerning Safety of Lifeat Sea (article 64: ibid., p. 2768). The same principlewas followed in the Convention of 20 July 1936 concern-ing the Regime of the Straits (ibid., vol. 7, p. 399)and in the Convention of 8 June 1937 concerningRegulation of Whaling (ibid., p. 761). The treatyof 25 March 1936 of Limitation of Naval Armamentprovided expressly that accessions if made prior tothe date of the coming into force of the Treaty shalltake effect on that date (ibid., p. 283). At the secondHague Conference of 1907 it seems to have beenassumed as evident that an " adhesion may have noeffect except, at the earliest, from the time the Conven-tion goes into effect".

However, the preponderant practice of Governmentshas been in the opposite direction. Treaties constantlyprovide for accession irrespective of the date of entryinto force. The Convention of 11 October 1933 forFacilitating International Circulation of Films of an

Educational Character entered into force on 15 January1935 (ibid., vol. 6, p. 457). Article 16 of the Conventionprovided that it may be acceded to on or after 12 April1934. The Convention of 11 October 1933 for theSuppression of Traffic in Women and Children enteredinto force on 24 August 1934 (ibid., p. 469). Article 7of the Convention provided for accession as from1 April 1934. The Convention of 28 October 1933concerning the International Status of Refugees enteredinto force on 13 June 1935. It provided, in article 19,for accession on or after 16 April 1934. The Conven-tion of 8 November 1933 for the Preservation of Faunaand Flora entered into force on 14 January 1934. Itprovided, in article 17, for accession as from 31 March1934 (ibid., p. 519). The Convention of 14 December1928 concerning Economic Statistics entered into forceon 14 December 1930. It provided for accession asfrom 1 October 1929 (ibid., vol. 4, p. 2586). TheConvention of 20 Apri] 1929 concerning CounterfeitingCurrency entered into force on 22 February 1931.Provision for accession was made as from 1 January1930 (ibid., p. 2702). The same system was followedin the Convention of 20 February 1935 for the Campaignagainst Contagious Diseases of Animals (ibid., vol. 7,p. 9) and in the Convention of 20 February 1935concerning Export and Import of Animal Products(ibid., p. 35). The Convention of 25 July 1934 con-cerning Protection against Dengue Fever laid down,without referring to any limitation as to the time limit,that it is open to accession of any country which hasnot signed it (ibid., vol. 6, p. 934). The UniversalPostal Convention of 20 March 1934 provided foraccession " at any time " (Article 2: ibid., p. 649). Sodid the European Broadcasting Convention of 15 April1939 (ibid., vol. 8, p. 2961). The Arrangement of18 August 1938 concerning the Powers of the EuropeanCommission of the Danube (United Kingdom, TreatySeries, No. 38 (1939), Cmd. 6069) provided, in additionto ratification, for the right of accession of any Staterepresented on the European Commission. It madeprovision for a prods-verbal of the deposit of instru-ments of ratification or accession and laid down that" the Arrangement will enter into force three monthsafter the closing of the proces-verbal ". The Conventionof 10 February 1938 concerning the Status of Refugeescoming from Germany entered into force on 26 October1938. But article 21 of the convention provided that" on and after 10 August 1938 any Member of theLeague of Nations or any other State referred to in theconvention may accede to it (M. Hudson, InternationalLegislation, vol. 8, p. 29). The Convention of 1 March1939 on Tax Exemption in Air Traffic (United KingdomTreaty Series, Misc. No. 7 (1939)) laid down, in article 5,that after 1 June 1939 it shall be open to accession onbehalf of any country on whose behalf it had not beensigned. By 1946 the Convention had not yet enteredinto force. The Convention of 7 June 1930 concerningStamp Law and Bills of Exchange provided, in article 5,that it shall not come into force until it has beenratified or acceded to on behalf of the seven Statesspecified therein (ibid., No. 14 (1934)).

The practice as outlined above assumes an evenmore conspicuous complexion in cases in which acces-sion is the only means for the entry of the treaty intoforce — as is the case with regard to the Conventionon the Privileges and Immunities of the United Nations

Law of treaties 121

approved by the General Assembly on 13 February1946 (United Nations, Treaty Series, vol. 1, p. 15), orthe Convention on the Privileges and Immunities ofthe Specialized Agencies, approved by the GeneralAssembly on 21 November 1947 (ibid., vol. 33, p. 261).The General Act of 1928 for the Pacific Settlement ofInternational Disputes was to the same effect. So wasthe Revised General Act approved by the GeneralAssembly on 28 April 1949. The International Sani-tary Convention for Aerial Navigation, which was openedfor signature on 15 September 1944, provided inarticle 18 that it shall come into force as soon as it hasbeen signed or acceded to on behalf of ten or moreGovernments (ibid., vol. 16, p. 247). A substantiallyidentical provision on the subject was included in theInternational Convention of 20 April 1929 for theSuppression of Counterfeiting Currency (League ofNations, Treaty Series, vol. 112, p. 371). The GenocideConvention approved by the General Assembly on9 December 1948 provided, inter alia, for accessionas from 1 January 1950. But by that date only fiveStates had ratified the convention — which providedin article 13 that twenty instruments of ratificationor accession were required for its entry into force.There are many other examples of similar provisions.60

9. In view of the preponderance of practice, asshown here, there is no justification for regardingascession as not operative prior to the entrance of thetreaty into force. Important considerations connectedwith the effectiveness of the procedure of conclusionof treaties seem to call for a contrary rule. Manytreaties might never enter into force but for accession.Where the entire tendency in the field of conclusionof treaties is in the direction of elasticity and elimina-rion of restrictive rules it seems indesirable to burdenthe subject of accession with a presumption whichpractice has shown to be in the nature of an exceptionrather than the rule.

10. For similar reasons there is no cause for limitingthe freedom of a State to accede to a treaty subject tosubsequent confirmation. A State may attach impor-tance to signifying its intention to consider accessionto a treaty without limiting the power of its constitu-tional organs to consider the question of the ratifica-tion of accession in the same way as they are free toconsider treaties signed by their representatives. Inview of this the matter may well be allowed to restwhere it was left by a resolution of the Assembly ofthe League of Nations in 1927, which was to the effectthat " The procedure of accession to internationalagreements given subject to ratification is an admissibleone which the League should neither discourage norencourage. Nevertheless if a State gives its accession,it shall know that, if it does not expressly mentionthat this accession is subject to ratification, it shall bedeemed to have undertaken a formal obligation. If itdesires to prevent this consequence, it must expresslydeclare at the time of accession that the accession isgiven subject to ratification." (League of Nations,Assembly Records, Plenary Meetings, September 1927.)

M See, for example, the Convention of 19 September 1949on Road Traffic (article 27) and the International SanitaryConvention for Aerial Navigation opened for signatureon 15 December 1944 (United Nations, Treaty Series,vol. 16, p. 247).

Note

1. As in other articles of the present draft, theSpecial Rapporteur has refrained from giving a defini-tion of the procedure involved (i.e., in this case, adefinition of accession). The necessary element ofdefinition is contained in the substantive rules embodiedin the article.

2. The Special Rapporteur has felt compelled todepart, for reasons given in the comment above, fromthe article as tentatively adopted by the Commissionand to formulate conclusions which are, in some ways,in the opposite sense. This applies to the questionof the requirement of consent of all the contractingparties subsequent to the entry of the treaty intoforce and, in particular, to the question whetheraccession can become operative before the treaty hasfully entered into force.

3. The question has been discussed by somewriters 61 whether the acceding State becomes a partyto the treaty on a footing of full equality with theoriginal contracting parties. The answer to thatquestion really admits of no doubt. It is occasionallyobscured by the argument that the effect of the acces-sion clause if accepted is to result in a new treaty— albeit identical with the old one between the originalcontracting parties and the acceding State. Even ifthat argument were correct, it is difficult to see whatdifference it makes to the legal situation. However,in either case the circumstance that the accedingState becomes a party, in effect and in law, to theoriginal treaty on a footing of equality has the furtherresult, which will be commented upon in the part oninterpertation of treaties, that the acceding State mustbe deemed to possess full knowledge of the facts andrecords, if published, relating to the history of thenegotiations preceding the conclusion of the treaty andthe establishment of its text.

4. The Special Rapporteur does not consider itnecessary to comment in detail upon the first paragraphof the article, which lays down that accession to atreaty must be formally declared in a written instru-ment. That rule is no more than an application ofthe principle, examined below in article 17, that theconclusion of a treaty must take place through aformal written instrument. It follows that a tacitaccession is not possible. In the Case concerningcertain German interests in Polish Upper Silesia(Judgement No. 7, p. 28) the Permanent Court ofInternational Justice held that " there has been nosubsequent tacit adherence or accession on the partof Poland to the Armistice Convention or Protocolof Spa ". It seems hardly permissible to deduce fromthis phraseology that the Court admitted by implica-tion the admissibility of implied accession. In anycase, practically all the relevant treaties provide eitherthat accessions must be notified to the depositary ofthe convention or that they must be effected by thedeposit of a formal instrument. The Commission mayattach importance to inserting an express provisionto that effect in the present article.

51 See, for example, comment to article 9 (e) of theHarvard Draft Convention.

122 Yearbook of theTInternational Law Commission, Vol. II

Article 8

Acceptance

[Wherever provision is made for the assumptionof the obligations of the treaty by acceptance a Statemay become a party to the treaty by a procedure whichconsists either: (a) In signature, ratification, oraccession, or; (6) In an instrument formally describedas acceptance; or (c) In a combination of the twopreceding methods.]

Comment

1. This article is enclosed in brackets for the reasonthat the necessity of including it within the codifica-tion of the law of treaties may be open to doubt. Thereason which prompted the deliberate adoption, duringand after the end of the second World War, of " accep-tance " as a means of assuming treaty obligations wasto provide an instrument of a less formal characterthan some of the traditional methods, in particularratification, and thus to make available appropriatemachinery in cases in which the municipal law of aparticular State renders the assumption of treatyobligations by the traditional method of ratificationmore complicated than is the case if other methods arefollowed. Thus the Constitution of the United NationsEducational, Scientific and Cultural Organizationof 16 November 1945 provided in article 15: " 1. ThisConstitution shall be subject to acceptance... 2. Signa-ture may take place either before or after the depositof the instrument of acceptance " (United Nations,Treaty Series, vol. 4, p. 275). The relevant articles ofthe Constitution of the International Monetary Fund(ibid,, vol. 2, p. 39) and of the International Bank forReconstruction and Development included similarprovisions: " Each government on whose behalf thisAgreement is signed shall deposit with the Governmentof the United States of America an instrument settingforth that it has accepted this Agreement in accordancewith its law and has taken all steps necessary to enableit to carry out all of its obligations under this Agree-ment." This formula was followed, on a somewhataltered form, in a number of other agreements. TheGeneral Agreement on Tariffs and Trade of 30 October1947 provided that it " shall be open to acceptance byany government signatory to the Final Act". Thiswas also the case in the Havana Charter of 24 March1948 for an International Trade Organization. In anumber of agreements " the parties have adopted auniform formula providing for the assumption of thetreaty obligations by: (a) signature without reservation

** e.g., Protocol approved by the General Assemblyon 3 December 1948 amending the Agreement for theSuppression of Circulation of Obscene Publications(United Nations, Treaty Series, vol. 30, p. 3); Conventionof 6 March 1948 on the Inter-Governmental MaritimeConsultative Organization; Convention of 10 May 1948of the International Institute of the Hylean Amazon.For a survey of the use of the term " acceptance " in thepractice of the United Nations in the matter of conclusionof treaties see Y. L. Liang in American Journal of Inter-national Law, vol. 44 (1950), pp. 342-349.

as to acceptance; or (b) signature subject to acceptance'followed by acceptance; or (c) acceptance. It must benoted that the contracting of international obligations,by that method was not altogether novel. Thus in 1934when accepting membership in the International,Labour Organisation, the United States did so not byway of ratifying any international instrument butby way of accepting an invitation extended to it— that step, in turn, following a Joint Resolution ofCongress authorizing the President " to accept mem-bership for the Government of the United States ofAmerica in the International Labour Organisation "."•

2. In 1948 the Sixth Committee of the GeneralAssembly, after detailed discussion, adopted a resolu-tion in connexion with the draft Convention for theSuppression of the Traffic in Persons and of the Exploi-tation of the Prostitution of Others, expressing bya substantial majority (of 30 votes to none, with4 abstentions) preference for the traditional method(of signature followed by ratification) as comparedwith the uniform formula of acceptance as describedabove.6* Although since then it appears that onlytwo agreements have provided for acceptance — inaddition to signature followed by ratification " •—there is no decisive reason for assuming that thatexpression of opinion was intended to cover all inter-national instruments.

3. The term " acceptance " does not exclude theassumption of treaty obligations by ratification oraccession. Nor does it exclude signature; it is oftencombined with it. Its effect is to leave to governmentsthe option of assuming the treaty obligation either bythe traditional methods of signature, ratification oraccession or by using the — apparently less formal —machinery of " acceptance ". Various objections maybe raised against the conferment of a formal status of adistinct method of concluding a treaty upon " accep-tance " thus conceived. Thus it may be said that noformula used in a treaty can absolve a government fromcomplying with the constitutional limitations upon thefinal conclusion of a particular treaty. A governmentratifying a treaty may or may not be under an obliga-tion, according to its municipal law, to obtain thenecessary approval or authorization. The formula of" acceptance " used in a treaty will not release it fromthat obligation. The possibility of accession, which,

" The United States had previously assumed mem-bership in some international organizations in accordancewith that procedure, as in the case of the InternationalHydrographic Bureau in 1921 and the International Sta-tistical Institute in 1924. The Proclamation of acceptanceof membership of the International Labour Organisationwas made by the President in a form not dissimilar to theproclamation of treaties in general. In the Proclamationthe President did " proclaim and make public the Con-stitution of the International Labour Organisation, acertified copy of which is hereto annexed, to the endthat the same and every article and clause thereof maybe observed with good faith by the United States ofAmerica and the citizens thereof ".

" Official Record of the General Assembly, Third Session,Part I, Sixth Committee, 88th and following meetings.

54 Agreement of 22 November 1950 on the Importationof Educational, Scientific and Cultural Materials andthe Universal Copyright Convention of 6 September 1952drawn up under the auspices of the United NationsEducational, Scientific and Cultural Organization.

Law of treaties 123

as has been shown, is open to States which have signedthe treaty but have not ratified it and which does not•depend upon the treaty having already come into force,provides an informal method of assuming a treaty'obligation. For in most, if not all, States — to use the'language of Sir Arnold McNair — " an accession doesnot require ratification and is regarded as constitu-tionally equivalent to ratification ".66 On the otherhand—and that circumstance is probably decisive — if•a government finds that the use of a certain proceduremay facilitate, without setting aside a legitimate andrequisite expression of national will, the assumptionof international obligations, there would seem to bereason for not discouraging such simplified methodsby making obligatory, in effect, the use of more compli-cated machinery. From this point of view it would beregrattable if a treaty were to provide for ratificationas the only means of finalizing the acceptance of itsobligations.

4. In view of this it would appear that " acceptance "fulfils a function different from that of merely general-izing the various methods — more or less formal —of assuming a treaty obligation or confirming or approv-ing an obligation provisionally undertaken by signa-ture (or, in some cases, by accession). A number ofrecent agreements refer to " approval" instead of" acceptance " H while some authorize both procedureswith the underlying — though by no means obvious —assumption that there is a difference between the two.Thus according to the Constitution of the WorldHealth Organization of 22 July 1946 (United Nations,Treaty Series, vol. 14, p. 185) States may become partiesto the Constitution by (1) signature without reserva-tion as to approval; (2) signature subject to approvalfollowed by acceptance; or (3) acceptance.

5. While the Commission believes that the law oftreaties ought to encourage elasticity and flexibilityin the matter of the machinery used for assuming treatyobligations, it is bound to acknowledge the force of theview that it may not be necessary to give the rigidcomplexion of an article to terminology which has nospecific content. The law of treaties need not ignorethe tendencies implied in the terminology of " accep-tance ". But it may be sufficient to consider it asadequately accommodated within the wide orbit ofarticle 4, which refers to " any other means " acceptedby the parties. These means include a procedurewhich, while leaving room for confirmation of thesignature by a subsequent act of approval, does notmake such approval dependent upon formal ratifica-tion. This, of course, was the practice also prior to theexplicit emergence of " acceptance " as a means ofassuming treaty obligations. On the other hand,nothing in the nature — or in the practice — of" acceptance" prevents a party from finalizing itsundertaking by way of formal ratification.

" The Law of Treaties, op. cit., p. 99. He adds: " Itis not the usual practice to pass an instrument of acces-sion under the Great Seal. A notification signed bythe Secretary of State for Foreign Affairs or some otherduly authorized person is considered adequate."

" See, for example, the Protocol concerning the OfficeInternational d'Hygiene Publique (United Nations,Treaty Series, vol. 9, p. 66) or the Protocol amending theAgreements, Conventions and Protocols on NarcoticDrugs )ibid., vol. 12, p. 179).

Note

The Special Rapporteur has included the presentarticle largely out of deference to article 10 as tenta-tively adopted by the Commission and as a basis fordiscussion. He is not certain that a separate articleon the subject ought to be retained. As already men-tioned in the comment, a decision to refrain from adop-ting a separate article on " acceptance " would nothave the result of disregarding a practice which hasfound some following and which is not altogetherdevoid of usefulness. The case would be met by theexisting reference in article 4 to " other means ofaccepting or approving " a treaty. These means mustnecessarily be formal means. In fact, most of thevarious agreements providing for acceptance requirethe formal deposit of an instrument of acceptance.For these reasons it may be held to be conducive toclarity and the avoidance of confusion if " acceptance "," approval", and similar procedures are includedwithin the whole formula of article 4 without beingcreated into a category of their own. Only so, itmight be said, can we hope to avoid the ambiguitiesand contradictions which threaten to surround thesubject. Thus the article 10 tentatively adopted bythe Commission defines acceptance of a treaty as " anact by which a State, in lieu of signature or ratificationor accession or all of these procedures, declares itselfbound by the treaty ". Yet it is clear both from prac-tice and from the comment which followed that articlethat " acceptance " does not necessarily take placein lieu of signature or ratification or accession. It isoften effected by or combined with any of these threeprocedures. On the other hand, although there maybe but little in the procedure of " acceptance " — assu-ming that it constitutes a procedure of its own —which cannot, internationally, be achieved by thetraditional methods of signature, ratification, oraccession or by a combination of them, this need notnecessarily be the decisive consideration. If, in somecases, governments and the cause of internationalco-operation can be assisted by the use of terminologywhich leaves room for the desired freedom of procedure,such terminology may deserve encouragement evenat the risk of some inelegancy or redundancy.

Article 9

Reservations

A signature, ratification, accession, or any othermethod of accepting a multilateral treaty is void ifaccompanied by a reservation or reservations notagreed to by all other parties to the treaty.

Comment

1. In the view of the Commission, article 9 as heredrafted must be regarded as probably still representingthe existing law. Prior to the advisory opinion ofthe International Court of Justice in the matter of theGenocide Convention (I.C.J. Reports 1951, p. 15) andapart from the so-called " American system " initiatedin 1938 as the result of a resolution adopted at theEighth International Conference of American States


held at Lima, the principle as stated in article 9 wasgenerally, if not universally, recognized as expressiveof a rule of international law. This was so notwith-standing the doubts occasionally and increasingly raisedin respect of its operation. The practice of the deposi-tary authority of The Hague Conventions and of theLeague of Nations was based on that principle. So wasthe report, approved in 1927 by the Council of theLeague of Nations, prepared by the Committee for theProgressive Codification of International Law. 68 Thiswas also the practice of the Secretary-General of theUnited Nations, which until the controversy occasionedby the reservations to the Genocide Convention, wasnot seriously challenged. The report which theInternational Law Commission submitted in 1951 tothe General Assembly was based on that principle.59

In the view of the Commission, in the absence of anydeliberate change in this respect effected by generalagreement or constant practice acknowledged as law,this must be regarded as still constituting the existingrule of international law.

However, although nothing decisive has occurred todislodge the principle of unanimous consent as arule of existing international law, the Commission, forreasons stated in the comment which follows, is notnow of the view that it constitutes a satisfactory ruleand that it can — or ought to — be maintained.Accordingly, the statement of law in the present draftof article 9 is accompanied by a number of alternativedrafts which accept a different principle as the basisof the future law on the subject. These drafts arecommented upon in considerable detail. The subjectof reservations to multilateral treaties is one of unusual•— in fact baffling — complexity and it would serve nouseful purpose to simplify artificially an inherentlycomplex problem. This applies in particular to situa-tions in which the task of the Commission is one ofdeveloping international law after the existing principlehas been found to be unsatisfactory and not acceptableto a large number of States.

In view of the fact that the Commission does not con-sider the principle of unanimous consent as expressedin article 9 as drafted to offer a satisfactory basisfor the future operation of this aspect of the law oftreaties, no detailed comment on article 9 is believedto be necessary — although a number of considerationsrelevant to the subject will be found in the commentto the alternative drafts, in particular in the commentto the alternative draft A.

Alternative draft A

If, in any case where a multilateral treaty does notexpressly prohibit or restrict the faculty of makingreservations, a State signs, ratifies, accedes to orotherwise accepts the treaty subject to a reservationor reservations limiting or otherwise varying theobligations of any article or articles of the treaty,the following procedure shall apply in the absence ofany other provisions in the treaty:

1. Whenever a treaty provides that it shall enter -into force on a specified number of States finallybecoming parties thereto, the fact that a State hasappended a reservation or reservations to any articleof the treaty is not taken into account for the purposeof ascertaining the existence of the requisite numberof parties to the treaty.

2. If within three years of the treaty having enteredinto force less than two-thirds of the States acceptingthe treaty, whether they have accepted it with orwithout reservations, agree to the reservation orreservations appended by a State, that State, if itmaintains the reservation, ceases to be a party thereto.If, at the end of that period and as the result of theoperation of the rule as stated, the number of partiesis reduced below the requisite number stipulated forthe entrance of the treaty into force, the treaty isdissolved.

3. If, at the end of or subsequent to the periodreferred to above, a reservation is agreed to expresslyor tacitly by two-thirds or more of the total numberof the States accepting the obligations of the treaty,then the State making the reservation is deemed tobe a party to the treaty in respect of all parties theretosubject to the right of the other parties not to considerthemselves bound by the particular clause of thetreaty iri relation to the State making the reservation.

4. A State is deemed to have agreed to a reservationmade by another State if, within three months of thereceipt of notification of the reservation in question,it has not forwarded to the depositary authority astatement containing a formal rejection of the reser-vation.

Comment

I. General observations

1. Before proceeding to an explanation of the legaleffect of draft A of article 9 it is convenient to recallonce more that with regard to the subject-matter ofthe article the Commission was not, more conspicuouslythan with regard to other articles of the draft of theLaw of Treaties, in a position to limit itself to a codifi-cation of the existing law. This is so to some extentfor the reason that there is at present no generalagreement as to the law on the subject. In the viewof some States 60 this was the position even prior tothe advisory opinion of the International Court ofJustice in the matter of the reservations to the Genocideconvention. While what is subsequently referred to asthe " unanimity view " was followed by the generalityof States and while that view found expression in the,on the whole,61 consistent practice of the Secretary-

68 League of Nations publication, V. Legal, 1927.V.16 (document C.357.M.130.1927.V).

fc* Yearbook of the International Law Commission,1951, vol. II (doc. A/1858, Ch. II), pp. 125-131.

60 Including the United States—as shown in the writtenstatement of the Government of the United States ofAmerica before the International Court of Justice inconnexion with the advisory opinion on Reservations tothe Convention, on the prevention and punishment of thecrime of Genocide see (I.C.J., Pleadings, Oral Arguments,Documents, pp. 23-47).

61 In its advisory opinion on Reservations to the Con-vention on the prevention and punishment of the crime ofGenocide the International Court of Justice quoted in full(I.C.J. Reports 1951, p. 25) the following passage from

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General of the League of Nations and the Secretary-General of the United Nations, the American Stateshave since 1938 followed a different practice. Onoccasions the principle of the requirement of unanimousconsent was operative only by virtue of implied consent— as was probably the case with regard to some of thereservations appended to certain of The Hague Conven-tions relating to the law of war.62 The advisoryopinion of the International Court of Justice in thematter of the Genocide Convention has further im-paired the authority of the principle of unanimous con-sent as expressing a generally recognized principle ofinternational law. This is so although that opinionwas, by its terms of reference and by its own language,limited to the particular issue before it. For thereasoning both of the Court and of the importantdissenting opinion of four of the judges is, in manyways, of a general character applicable to reservationsto any international treaty. Finally, it is impossibleto disregard the fact that, subsequently to thatadvisory opinion, a substantial majority of Statesrepresented at the Sixth Session of the General Assem-bly declined to accept, as expressive of existinginternational law, the principle of unanimous consentwhich underlay the report of the International LawCommission presented to it in 1951. Moreover, itappears that some of the Governments, including thatof the United Kingdom, who in the past have con-spicuously advocated that principle, may be ready toadmit that it is too rigid and that it may have to bereplaced by a system based on some kind of majority 63

vote.

2. In view of the fact that the principle of unanimousconsent has ceased to be regarded as supplying asatisfactory solution of the problems which havearisen and are likely to arise in this connexion, theCommission no longer feels justified in limiting itselfto the formulation, by way of codification, of a legalrule on the subject based on that principle. Nor doesit consider itself justified in making the princuple ofunanimous consent the basis of the future law on thesubject. At the same time the Commission has felt

the Report of the Secretary-General of the United Nationsof 21 September 1950:

" While it is universally recognized that the consentof the other Governments concerned must be soughtbefore they can be bound by the terms of the reser-vation, there has not been unanimity either as to theprocedure to be followed by a depositary in obtainingthe necessary consent or as to the legal effect of aState's objecting to a reservation."98 See, however, the statement of the Government of

the Netherlands submitted on 19 January 1951 to theInternational Court of Justice concerning the stepstaken by that Government, as depositary of The HagueConvention of 29 July 1899 concerning the adaptation tomaritime war of the principles of the Geneva Conventionof 1864, to obtain the unanimous consent of the signa-tories of the Convention to reservations appended bysome States with regard tc article X of that Convention(I.C.J. Reports 1951, p. 288).

•s See the observations of Sir Gerald Fitzmauricet,representative of the United Kingdom, at the 267th Meet-ing of the Sixth Committee of the General Assembly on10 December 1951 (Official Records of the General Assembly,Sixth Session, Sixth Committee, pp. 86, 87). Also SirGerald Fitzmaurice's article in International and Compa-rative Law Quarterly, vol. 2, part I (1953), pp. 1-27.

unable to accept, either as expressive of existing lawor as a basis of future legal regulation, the so-called" sovereignty principle " according to which a Statepossesses an unlimited right to append reservationscoupled with the right to become a party to the conven-tion regardless of the objections of the other parties.Finally, although the alternative drafts of article 9follow in some limited measure the flexibility of theso-called American system, they differ from it insubstantial respects. In fact, these drafts attempt asolution independent of any of the three main principles(the " unanimity " rule, the " sovereignty " principleand the " American " system) which have been advo-cated or which have found more or less wide acceptancein the past.

3. It may now be convenient to outline here theprincipal considerations underlying the alternativedrafts, in particular draft A.

A. It is desirable to recognize the right of States toappend reservations to a treaty and become at thesame time parties to it provided these reservationsare not of such a nature to meet with disapproval onthe part of a substantial number of the States whichfinally accept the obligations of the treaty;

B. It is not feasible or consistent with principle torecognize an unlimited right of any State to become aparty to a treaty while appending reservations howeversweeping, arbitrary, or destructive of the reasonablyconceived purpose of the treaty and of the legitimateinterests and expectations of the other parties;

C. The requirement of unanimous consent of allparties to the treaty as a condition of participationin the treaty of a State appending reservations iscontrary to the necessities and flexibility of interna-tional intercourse.

These three principal considerations may now bereviewed.

4. Justification of reservations. While the right of aState to become a party to a treaty subject to reserva-tions is not at issue, the cognate question as to theextent of its right to do so regardless of the consentof the other parties is controversial. It is a questionclosely, though indirectly, connected with that of theintrinsic justification of reservations, and a briefconsideration of that question appears therefore to beindicated. Although the argument concerning thejustification of reservations in general is inconclusive,there has been a growing tendency to acknowledgethat there is nothing inherently improper in thepractice of appending reservations. If the view isadopted that, in principle, it is proper and desirable toadmit the right to attach reservations, then, apartfrom the disputed logical emanations of the doctrineof the unity of the contractual nexus between theparties to the same conventions — a subject referredto in the course of this comment — the requirement ofunanimous consent to a reservation falls to the ground.Undoubtedly, the objections, in principle, to attachingreservations cannot be lightly dismissed. There isroom for the view that a State must choose between,on the one hand, any particular provision of its lawand constitution or any particular interest of its own


and, on the other hand, participation in internationaltreaties, and that it cannot reasonably claim both.If the interest to be safeguarded by the reservationis real and far-reaching then, it may be said, the reser-vation renders participation in the treaty somewhatnominal. If the interest involved is of limited signi-ficance then, it may be contended, it ought to yield tothe paramount necessity of uniformity of internationalregulation. States cannot claim to be parties totreaties without sacrificing some interest; a treaty haslittle meaning and approaches a purely nominaldeclaration of principle unless the parties undertake,within a given sphere, to abandon their freedom ofaction, to sacrifice a particular interest and to changetheir legislation. If the existing law of the State isregarded as sacrosanct and if the State can agree to atreaty only if the latter is not incompatible with itslaw, then the conclusion of a treaty is no more than agesture. Naturally, the various executive departmentsof a State view with apprehension the inconvenienceand complications resulting from the necessity ofchanging the law of the State and are therefore proneto encourage reservations which obviate the necessityof any such changes. This phenomenon of departmen-tal conservatism need not be decisive. Moreover,experience has shown that very often the subject matterof the reservations, although giving expression to theviews strongly held by the reserving State on a givenmatter, is not of great importance in comparison withthe significance of the treaty as a whole and that thereservation could have been omitted without sacrificingany true interest of the State in question.

5. On the other hand, there is force in the contentionthat, in practice, a particular reservation, howevermuch it detracts from the symmetry and uniformityof the treaty and although it touches upon an impor-tant point of principle, does not unduly impair thevalue of the treaty. That circumstance, which explainsthe relative rarity of objections to reservationsappended in good faith, must temper the notion thatthe practice of attaching reservations is in itselfblameworthy — especially having regard to the factthat, in a sense, it provides a safeguard for the rightsof the minority of States who have agreed to becomeparties to a treaty drafted by the majority in disregardof the views and attitude, however well founded, of thedissenting minority. In cases of accession that mino-rity may have had no opportunity at all to voice itsobjections. In such cases it may be difficult, at times,to dissent from the view that the rights of the minoritymust be admitted by the effective recognition of theirfaculty to make reservations. However, if the pro-priety of making reservations is admitted, then recog-nition of that right has a meaning only if it is coupledwith the admission of the right to append reservationswithin the limits of propriety and good faith, even ifthese are not unanimously agreed to by all the otherparties. On the other hand, it is important to put inproper perspective the argument based on the rightsof minorities. For, in contrast with the case of legisla-tion within the State, no minority is compelled tobecome a party to a multilateral treaty. Nor is aminority entitled to impose its own view, which inpractice may amount to altering drastically the charac-ter of the treaty, upon the majority.

6. The requirement of unanimous consent. For thereasons stated — as well as for others — the presentalternative draft of article 9 and the other alternativedrafts do not follow what is the most widely, thoughnot uniformly, adopted opinion and practice in thematter, namely, the so-called " unanimity" viewwhich asserts the right of a single State — whetheran actual or a potential party to the treaty — to pre-vent, in disregard of the attitude adopted by the otherparties, the participation in the treaty of one or morereserving States. According to the present draft ofarticle 9 there must be one-third of the total numberof States, who themselves have expressed in a bindingform the wish to become parties, to prevent the par-ticipation of a State making a reservation. If two-thirds or more of the parties feel that the State makingthe reservation acts in good faith and in a mannerwhich is not so unreasonable as to interfere decisivelywith the purpose of the treaty, then, according todraft A of article 9 as proposed, that State ought notto be precluded from becoming a party to the treaty. Itis true that many States who are prepared to take alenient or liberal view of the reservations made byothers may do so because they themselves have appen-ded reservations. However, so long as the number ofsuch States is substantial — two-thirds of the totalnumber represents a substantial proportion — thatconsideration ought not to be decisive. A treatycannot aspire to an excellence transcending the atti-tude of the parties to it. The strict requirement ofunanimous consent is, on the face of it, unreasonableand out of keeping with the necessities and the flexibi-lity of international intercourse. The requirement ofunanimous consent to reservations is open to objectionsof an order similar to that to which the rule of absoluteunanimity is open in other spheres. In the matter ofreservations there may be a semblance of justificationfor that rule inasmuch as reliance is placed on prece-dent, namely, on what has admittedly been the generalpractice or on a somewhat technical reasoning — which,as will be suggested, is of doubtful validity. Otherwisethere seems to be little justification for a rule whichmakes it possible for one State to prevent, howeverarbitrarily, the participation of another State in aconvention on account of a single reservation, evenif reasonable and proper. The requirement of unani-mity of consent is, upon analysis, motivated alternatelyby the suspicion that all reservations are captious anddishonest and therefore to be discouraged or by theassumption that assent to reservations will not bearbitrarily withheld. There may often be no justifica-tion for either of these assumptions. In particular,the confidence that assent to reservations will not becapriciously or vexatiously withheld ignores the factthat the harmony and courtesies of international inter-course are more conspicuously in evidence in someperiods than in other periods.

7. The requirement of unanimous consent can beupheld only by reference to considerations, whichhave been frequently and authoritatively stated,94 of

•« See McNair, The Law of Treaties (Oxford, 1938),p. 105; H. W. Malkin in British Year Book of Inter-national Law, vol. 7 (1926), p. 142; Harvard DraftConvention, American Journal of International Law,vol. 29 (1935), Supplement, p. 870.

Law of treaties 127

legal logic drawn essentially from the notion of theconsensual nexus in bilateral contracts and treaties,based on strict reciprocity of obligations and on theequivalence of consideration — the quid pro quo —which every party is entitled to expect in return forits own unconditional acceptance of the obligations ofthe treaty. A party which, the argument runs,ratifies a treaty subject to reservations not previouslyagreed by the other parties in fact rejects the originalinstrument and makes a new offer; that offer, if it isto produce legal results, must be accepted by all theother parties. This is so, it is argued, quite apart fromthe obvious reasons of convenience and propriety whichdiscourage the idea that a State may by unilateral actionwrite new terms into an instrument which has evolvedpainfully, as the result of prolonged negotiations, amidsta process of mutual compromise and accommodation.These arguments cannot be regarded as decisive. Thusthere is only limited force in the view that in acceptinga multilateral treaty a State justifiably regards it asan essential part of the consideration received that allother parties accept the treaty without qualifications.This may apply to some treaties, for instance, to thoseof an economic character and treaties such as theconventions concluded under the auspices of theInternational Labour Organisation where the depar-ture by one party from the standards laid down inthe treaty makes it difficult for others to adhere to it.But this is not invariably the case in humanitarian andsimilar conventions of a general character — in whathas been described as conventions of a normativetype. The conspicuous aspect of many, perhaps most,of these treaties is not the establishment of a nicelybalanced system of rights and obligations — of giveand take — of the parties inter se, but rather theassumption of an absolute obligation towards a trans-cending and imperative international interest subscribedto out of a sense of moral obligation and internationalsolidarity. It is probable that in obligations of thatnature the number of the parties and the conditionsunder which they accept the treaty are not alwaysregarded as of decisive importance by the other partiesaccepting the treaty. Undoubtedly, it is inconvenientand it provides a legitimate cause of grievance if thesymmetry of the edifice of the treaty, so laboriouslyconstructed, is disturbed by qualifications and limita-tions added, without any effort at co-ordination, bysubsequent reservations. However, in relation to thegeneral purpose and character of the treaty, this maybe no more than an inconvenience. The rigid dicho-tomy of choice — the choice whether the reservingState or the other States ought to be excluded fromthe treaty — does not in fact arise.88

8. Moreover, while a multilateral treaty is basicallya treaty and as such a contract to which it is properto apply the fundamental notions of the general prin-ciples of the law of contract, that analogy must stopshort of a reasoning which in effect transforms therequirement of consensual agreement into a negationthereof. That point is reached when the will of one

" The reasons underlying, from this ppint of view,the doctrine of unanimous consent are lucidly stated inthe general comment of the Harvard Draft Conventionto articles 14, 15 and 16 (foe. cit., pp. 870, 871).

party frustrates the will of all the others by renderingineffective their consent to reservations appended bya State. It is difficult to apply to multilateral treatiesthe rigid requirements of the unity of the contractualrelation. There is, for instance — to mention whatis in effect one of the most important multilateralinstruments — only a general unity and symmetry ofcontract in what is essentially a collective treaty ofinternational judicial settlement resulting from thedeclarations of acceptance of the optional clause ofarticle 36 of the Statute of the International Court ofJustice. We find there a multiplicity of relationsbrought about by the interplay of reciprocity inconnexion with reservations nowhere expressly autho-rized in the original instrument and never expresslyaccepted by the States parties to the optional clause.In the field of the law of war the undesirable effectsof the so-called general participation clause, which isbased on the notion of an exacting symmetry of treatyobligations equally applicable to all, have caused itto be abandoned in more recent conventions such asthe Gas Protocol of 1925 and, in particular, the GenveaConventions of 1949. International practice shows,in a different sphere, numerous examples of States andgovernments not recognized by other parties to thesame treaty and yet participating fully, in relation toother parties, in the treaty in question. There areobvious limits to the mechanical application to multi-lateral treaties of the logical reasoning appropriate tobilateral treaties. In the chain of relationships broughtabout by reservations to a multilateral treaty theelement of consent — which is inescapable in anytreaty, whether bilateral or multilateral — can besecured only by way of giving an opportunity towithdraw from the treaty to the State or the smallminority of States who find it necessary to oppose thegeneral desire of other contracting parties to acquiescein reservations made by other parties. The element oftrue consent can thus be secured by means other thanthat of permitting one State or a small number ofStates to disregard — and frustrate — the accommo-dating attitude of others. But it would have to be onlyone State or a small number of States. Otherwisethe somewhat paradoxical result is reached that thosevery countries which are prepared to accept the treatyin its entirety, without making any reservations, arecompelled to withdraw from the treaty and to leavethe field to those who are willing to accept only someof its obligations.

9. The unlimited right to make reservations. It isalso by reference to the same fundamental requirementof general — as distinguished from mere individual —consent that this alternative draft of article 9 deniesthe so-called sovereignty doctrine in the matter ofreservations, namely, the unlimited right of a Stateto append reservations, however arbitrary and howeverdestructive of the essential purpose of the treaty, andto claim at the same time the right to participate inthe treaty in disregard of the objection of a substantialnumber of the parties. If the reservation is of such anature as to call seriously in question the good faithand sincerity of the State making the reservation then,it may be assumed, there will be found the requisiteone-third of States who have finally accepted the treatywhether with reservations or not, who will object to


the participation of that State in the treaty. In faceof opposition on such grounds and in such numbers, aclaim, by reference to the rights of sovereignty, toparticipate in the treaty amounts to a denial of thesovereignty of the other parties to the treaty. Thatright of effective objection, as laid down in the presentdraft, asserted by a substantial number of Statesacting, as their number shows, in the general interest,provides the necessary safeguard against an abuse ofthe treaty-making power which might otherwiseenable a State to claim advantages, including theintangible but important advantage of participatingin the treaty, without assuming substantive obliga-tions thereunder. As experience has shown, govern-ments will not lightly avail themselves of that safe-guard, which consists in the exclusion of the reservingState. But a safeguard there must be, in the interestof the authority of treaties and of maintaining anadequate standard of international intercourse and,in a distinct sense, of international morality. Certainlythe codification of the law of treaties should give nocountenance to practices by which governments canuse the faculty of making treaties for the purposenot of undertaking international obligations but ofmerely creating the impression that they have under-taken them.

10. There is force in the view that one of the prin-cipal objects of the codification of the law of treatiesmay be to provide a safeguard of that nature. Theobject is not so much to secure the integrity of treatiesin the sense that they must be homogeneous and ofuniform application to all, but that they should exhibita minimum degree of reality of the obligations under-taken. In the absence of such minimum of effective-ness the measure of universality, achieved at the expenseof the reality of the undertaking, represents no morethan a nominal advantage. It is in the light of suchconsiderations that a compromise must be soughtbetween the claims of universality and the integrityof the convention. These considerations provide theanswer to the contention that half a loaf, secured bythe universality of treaties, is preferable to no loofat all or to its integrity achieved at the expense ofdrastically reducing the number of the parties to thetreaty. Half a loaf 6e may be better than no bread.But there ought to be at least some approximationto half a loaf. Thus, for instance, if a Government inaccepting a treaty were to add a reservation to theeffect that it is under no obligation to apply the pro-visions of the treaty in cases in which they are inconflict with its law or if it were to reserve the right todetermine in each disputed case the extent of itsobligation, it might be held that the right to concludea treaty is being diverted from its true purpose andthat the reservation is of such a nature as to excludethe State in question from participation in the treaty.This is a conclusion which ought not to be madelightly. The danger of abuse or arbitrariness in reach-ing a conclusion of so serious a nature is effectively metby the provision of the present draft requiring the

concurrence, for that purpose, of not less than one-third of the States accepting the obligations of thetreaty concerned. On the other hand, there is dangerof conduct inimical alike to the authority of treaties andof international law in general in the concession, forthe sake of the universality of the treaty, of an absoluteright to become a party to a multilateral treaty regard-less of the nature of the reservations appended, or inthe grant of the right to become a party so long asthere is one State which does not object to a reservation.If, to use the language of the written statement of theGovernment of the United States of America beforethe International Court of Justice in connexion withthe Genocide Convention, a reservation is fraudulent,unreasonable, and making a mockery of ratification,then it is in the nature of an anti-climax to say thatnotwithstanding a reservation of that kind the reserv-ing State may become a party if it finds one Statewhich does not object to it. The more rational solu-tion is that if a substantial number of parties findsthat the reservation is, for the reasons stated, of ahighly objectionable character, then the reservingState cannot become a party to the treaty. Thatnumber is given in the present draft as at least one-third of the parties.67

11. In so far as the " American " or any other systempostulates that only the refusal of all the parties tothe treaty to accept a reservation should prevent thereserving State from becoming a party to the treaty,this draft adopts a solution opposed to those systems.It represents an attempt to strike a balance betweenthe seemingly opposing considerations of universalityand integrity — in either of the two meanings of thelatter term — of the treaty. Universality may be anachievement which is deceptive and inimical to thedignity of international intercourse if it is obtainedthrough acquiescence in a transparent device ofparticipation in treaties not accompanied by accep-tance of tangible and binding obligations. At the sametime the so-called integrity of treaties, if attempted tobe achieved through the operation of a rigid rule ofunanimity in disregard of the legitimate views andinterests of individual States, may become an obstruc-tive factor in the conventional regulation of mattersof common international interest. Universality, ifinsisted upon at all costs, can be achieved only at theexpense of the reality and genuineness of treaties." Integrity ", if an attempt is made to bring it aboutthrough the requirement of unanimous consent toreservations and the resulting possible disregard of alegitimate claim to diversity, may unnecessarily res-trict the field of international co-operation.

•• The deceptiveness of some manifestations of the" half a loaf " doctrine is lucidly illustrated by Sir GeraldFitzmaurice in a valuable article on " Reservations toMultilateral Conventions ", International and ComparativeLaw Quarterly, vol. 2 (1952), part I, pp. 1-26.

67 Inasmuch as the present draft is intended to strikea balance between the rival principles of unanimity ofconsent and of the right of the reserving State to becomea party to the treaty provided that at least one Stateaccepts the reserving State as a party, the details of thecompromise implied in the proposed solution are subjectto modifications, in the light of any discussion before theCommission, without affecting the essential characterof that solution. Thus, for instance, the draft requiresacceptance, express or implied, of the reservation by atleast two-thirds of the parties. There is room for dis-cussion whether such acceptance should not be requiredby a larger or smaller proportion of the total number ofparties.

Law of treaties 129

12. In the light of these general considerations,which to a large extent apply to all the alternativedrafts here submitted, it is now convenient to distin-guish between two problems which are of a differentnature and which ought to be kept apart in the exami-nation of draft A. The first problem is that connectedwith the entry of the treaty into force. Treatiesprovide, as a rule, that they shall enter into force onthe occurrence of a certain event amounting to theassumption of a treaty obligation — that event beingeither signature, or ratification, or exchange or depositof ratifications, or accession including ratificationthereof, or deposit of an instrument of acceptance orapproval — on the part of a specified number of States.When such States assume a treaty obligation subjectto reservations the question arises whether — in caseof objection to the reservation or until all the contract-ing parties have expressed approval or failed toexpress disapproval — the State or States making thereservation may be counted among the required num-ber of States and whether, accordingly, the treaty hasentered into force. The second, and main, questionis the right of a State making a reservation to becomea party to the treaty regardless of the objections ofthe other parties. These two questions can and, it isbelieved, ought to be treted separately.

II. Entry into force

13. The attempt at a solution of the first question,that of the entry into force of treaties whose signature,ratification, accession or other means of acceptanceis accompanied by reservations not expressly agreedto by the other parties, constitutes the main featureof draft A of article 9. The principal aspect of theproposed solution is that in all cases in which a treatyprovides that it shall enter into force when a namednumber of States have definitely accepted obligationsthereunder, the fact that a State has attached a reser-vation or reservations to any of its articles ought to bedisregarded for the purpose of ascertaining whetherthe requisite number of States have ratified the treatyor otherwise finally accepted its obligations. Thissolution, if accepted as the basis of the future law,might obviate the difficulties connected with thecontroversial question whether consent to reservationsis required on the part of those States only whichhave ratified or otherwise finally assumed obligationsunder the treaty, or whether it extends also to Stateswhich have signed the treaty but which have notproceeded to ratify it and which may never ratify it,or, even, whether it extends to States, often indeter-minate in number, which have not signed the treatybut have the right to accede to it. Reasons haveoccasionally been advanced why a State which hassigned a treaty but has not yet ratified it shall beentitled to prevent, by its objection, the participationof a State ratifying (or otherwise finally acceptingthe treaty obligation) subject to reservations. Thesereasons, although not without some force, may not bedecisive.68 The International Court of Justice declined,

«8 In its report on the work of its third session (1951)the Commission expressed the view that, notwithstandingthe contrary practice of the Secretary-General, " theconcern of a mere signatory State should also be takeninto account". For, as the Commission then put it," at the time the reservation is tendered, a signatory

in its advisory opinion on the Genocide Convention, toadmit such a right69 — though apparently such rightwas asserted, without any indication of reasons, withregard both to signatories and to States merely entitledto accede, by four judges of the Court. In its report(Yearbook of the International Law Commission, 1951,vol. II (doc. A/1858, ch. II)) presented to the GeneralAssembly at its Sixth Session in 1951 the Commission,while acknowledging the right of a mere signatory toprevent the participation of a reserving State, qualifiedthe exercise of that right by the proviso that an objec-tion by such a State should cease to have the effect ofexcluding the reserving State from becoming a partyif within twelve months from the time of the makingof its objection the objecting State has not ratified orotherwise accepted the treaty. It is probable, in thelight of discussions which have since taken place, thatthe proposals, even if modified, acknowledging theright of actual or potential mere signatories to preventthe participation of a reserving State, are not accep-table to many States, that in some respects they arenot practicable, that in other respects they are opepto grave objections, and that they can no longer beupheld.70

State may be actively engaged in the study of the conven-tion, or it may be in the process of completing the pro-cedure necessary for ratification, or, for some reason,such as the assembling of its parliament, it may havebeen compelled to delay its ratification " (Section 29).These considerations probably do not outweigh thedisadvantages of a rule according to which a State whichis not — and may never become — a party to the treatyis entitled to prevent the participation in it of a Statewhich declares, albeit with reservations, that it assumesbinding obligations under it. These doubts apply also toconferring a right of this nature upon States which havenot signed the treaty but who have been given the rightto adhere to it. In view of this the Commission does notconsider it necessary to express an opinion on the ques-tion whether there exists in this matter a difference instatus, with a consequent difference in the right toobject to reservations, between the two categories ofStates, namely, the signatory States and those entitledto accede. That question was answered in the affirmative,though only for a very limited and almost nominal pur-pose, by the majority of the Court in its advisory opinionon the genocide convention {I.C.J. Reports 19S1, p. 28).The four dissenting judges, without giving reasons,answered it in the negative {ibid., p. 48). They recognizedthe right of objection, with the effect of preventing thereserving State from becoming a party to the treaty, onthe part both of the signatories and of States merelyentitled to accede.

69 Although it attributed to an objection by a meresignatory the effect of a notice of objection, which acquireslegal force by ratification of the treaty by the objectingStates (J.C.J. Reports 1951, p. 30).

70 Such scant practice as exists on the matter suggeststhat only those States which have finally adhered to thetreaty are entitled to offer objections to reservations.Article 22 of the Convention of 20 April 1929 concerningCounterfeiting Currency provided that ratifying or acced-ing States desiring to be allbwed to make reservationsshall inform the Secretary-General to this effect and thatthe latter shall thereupon communicate such reservationsto the High Contracting Parties on whose behalf ratifica-tions or accessions have been deposited and inquirewhether they have any objections thereto. " If withinsix months of the date of the communication of theSecretary-General no objections have been received, theparticipation in the Convention of the country makingthe reservation shall be deemed to have been acceptedby the other High Contracting Parties subject to thesaid reservation." (M. Hudson, International Legislation,vol. 4, p. 2703.)


14. It may be convenient to draw attention to someof the possible objections to the proposals containedin the report of the Commission of 1951 which includemere signatories and States entitled to adhere amongthose entitled to prevent the participation of a reserv-ing State.

(a) The system proposed may have the effect ofdelaying the entry into force of multilateral conventionsat least for a period of twelve months and, in view ofthe time limits provided elsewhere for raising objec-tions to reservations, for a considerably longer periodas the result of an objection by a State which objectsto the reservation and subsequently fails to ratify thetreaty. Moreover, in many cases the period of twelvemonths allowed to an objecting State for proceedingwith ratification may not be sufficient having regardto the complexity of many multilateral treaties which,in view of the necessary consequential changes inmunicipal law, may require prolonged inter-departmen-tal consultation. The ratification of multilateral con-ventions within a period of such short duration is anexception rather than the rule.

(b) The proposals formulated by the Commissionin 1951 confer the right to object only upon Stateswhich have signed or ratified the convention. Theyleave out of account the position of States entitled toaccede. Assuming that a right of objection properlybelongs to signatory States, it is difficult to see why itshould be denied to States which are entitled to accedeto the convention at any time on the same basis assignatory States. AH the reasons adduced by theCommission for conferring that right upon signatoriesapply also to States entitled to adhere.

(c) The proposals disregard the complicated ques-tion as to the position arising from the fact that theStates upon whose consent the participation of thereserving State depends may themselves have ratified(or otherwise finally acceded to) the treaty subject toreservations. Shall tiiese States, whose very participa-tion in the treaty may be in doubt on account of theirown reservations, have the right effectively to objectto the reserving States being counted among thosewhose participation is necessary for the entrance ofthe treaty into force ?

(d) If the principle of unanimous consent is regardedas paramount, it is difficult — with respect to conven-tions entering into force as on the deposit of a specifiednumber of ratifications — to regard as satisfactory asolution according to which a State which makes areservation at the time of ratification can become aparty to the convention if there, is no objection on thepart of any State which has previously ratified (orotherwise finally acceded to) the treaty. Apart fromthe difficulty which may arise from the fact that theselatter States may themselves have ratified the conven-tion subject to a reservation, the resulting situation maybe that a very small number of States whose ratifica-tion or accession is required for the entrance of thetreaty into force will be in a position to determinefinally the participation of the reserving State withrespect to a convention subsequently ratified oracceded to by thirty or forty States.

(e) As admitted in the Commission's report (para-graph 31), the proposed solution leaves out of account,as raising special problems, the question of treaties

open to accession and not open to signature, such asthe Convention on the Privileges and Immunities ofthe United Nations of 13 February 1946. The reportstates, in explanation, that such treaties raise specialproblems and are exceptional. However, in fact suchconventions are quite frequent.71 This is so in parti-cular if it is borne in mind that the position is substan-tially identical with regard to treaties to which Statescan become parties by acceptance or approval only,or to which they become parties either by signature orby acceptance (or approval). The number of suchtreaties lias been increasing. Far from being excep-tional, they may become typical. In view of this anypurported solution which leaves such instruments onone side cannot be regarded as complete or satisfactory.

15. Having regard to the difficulties as outlinedabove, the solution which may be practicable and whichis adopted in paragraph 1 of draft A of article 9 asproposed is that the entry into force of a treaty, at atime specified in it, should be entirely independentof the fact that the State or States upon whose finalacceptance the entry into force depends have entereda reservation to any of the provisions of the treaty.Such States shall, for that purpose, be regarded ashaving fully accepted the obligations of the treaty andthe latter shall therefore enter into force forthwith.No decision in the matter would be incumbent upon— or, in fact, admissible on the part of — the deposi-tary authority. The latter will have to communicatethe reservations to the other States which have signedthe treaty, or have become parties to it, or which areentitled to accede to it. But such communication andany replies thereto, although, as is explained later on,relevant for other purposes, must be regarded asirrelevant for the purpose of the treaty entering intoforce. It will enter into force forthwith. As subse-quently pointed out, there remains a possibility— albeit slight — that the treaty which has thusentered into force may have to be regarded as dissolvedon account of the fact that, as the result of objectionsraised to the participation of reserving States, thenumber of parties to the treaty has fallen below therequired minimum. However, the probability ofsuch a contingency materializing is so small that itcannot be regarded as outweighing the advantages ofthe solution here proposed. Subject to these safe-guards the procedure suggested in draft A of article 9would appear to be free from complications. Thetreaty which has entered into force continues to beoperative in relation to any reserving State unless,after a period of adequate duration — which it issuggested should be three years — at least one-thirdof the number of States which have finally accepted theobligations of the convention declare a reservation tobe so objectionable as to prevent the reserving Statefrom continuing to be a party to the treaty. It mustbe irrelevant for that purpose whether any of theone-third (or more) States thus objecting have them-selves made a reservation. The same principle would

71 See, for example, the Convention on the Privileges andImmunities of the Specialized Agencies, approved by theGeneral Assembly on 21 November 1947; the RevisedGeneral Act, approved by the General Assembly on28 April 1949, for the Pacific Settlement of InternationalDisputes; the Convention of 6 April 1950 on the Declara-tion of Death of Missing Persons.

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apply to a State adhering to a treaty after the expira-tion of the period of three years. Admittedly, intheory the solution here proposed may give, opportuni-ties for abuse and for nullifying in effect the purposeof the treaty. This might happen, for instance, if allor most of the States were to attach reservations whichrender the acceptance of the treaty purely nominal.However, it may be pessimistic to assume the likeli-hood of a large number of governments resorting tosuch devices, which, in any case, may be ineffectual.In the first instance, in view of the governing principleof reciprocity such States would be unable to obtainany advantages under the treaty in the sphere coveredby their own reservations. Secondly, any practicaladvantage accruing from recourse having been had toa device of that nature would in any case be limitedto the relatively short period of three years, as ex-plained below, at the expiry of which a majority of theparties may, by objecting to a reservation, cause thereserving State to cease to be a party to the treaty.Thirdly, even within that period, if some parties wereto feel that the entry of the treaty into force was obt-ained by purely nominal acceptances which in effectnullify the treaty, they would be in a position to availthemselves of any right of withdrawal provided forin the treaty.

16. There are other objections to the scheme asproposed which are more cogent and which requireconsideration.

(a) In the first instance, Governments may beunwilling to accept a position in which they have beenparties to a convention for three years subject toreservations and are subsequently excluded from par-ticipation in the treaty. A possible answer to thatobjection is that such Governments, if they have accep-ted the procedure as proposed, will have no legitimatecause for grievance seeing that they knew in advancethat this might be the result of their reservations. Forthe provisional character, in the first three years, ofthe participation of a State which has made a reserva-tion is of the essence of the solution here pro-posed.

(b) In view of the serious and invidious situationwhich is bound to arise if a State which has been aparty, if only provisionally, for three years, were tocease to be a party, it is doubtful whether otherStates would be inclined to exercise the right of object-ing to reservations unless these were obviously frivo-lous or made in bad faith. Reluctant as Governmentsare to offer a positive objection to a reservation, evenif they disapprove of it, that reluctance is bound to bemuch greater if the convention has in fact enteredinto force with the reserving State as a party to itand if that reservation has in fact been in existencefor some time. The result might be that reservationswould be upheld which are destructive of or inconsis-tent with the purpose of the treaty. There cannot inthe nature of things be a conclusive answer to thatargument except that action resulting in terminationof the membership of a reserving State would not bethe result of any individual action of one party, butthe cumulative result of the objection of at least one-third of the parties. Moreover, as rejection of a reser-vation must take place within a short period after

its notification, in the event of a number of Statesobjecting to the reservation within that period thereserving State would really not be for long in doubtas to the fate of its reservation.

(c) Finally, it may be said that there is an obviousdisadvantage in a solution which makes possible thedissolution of a treaty as a result of the fact that, onaccount of the objection of one-third or more States,the total number of parties may fall below that requiredby the treaty. It is difficult to deny the inconveniencewhich would result from the dissolution of the treatyand the necessity of dealing with the legal effects ofacts performed during its operation. However, theresulting difficulty is not insurmountable. The proba-bility of its occurrence is small seeing that it presup-poses a large number of States making reservations anda large number of States objecting to them.

III. Acceptance and rejection of reservations

17. While paragraph 2 of draft A of article 9 isconcerned with the entrance of the treaty into force,paragraph 3 is devoted to what is the principal aspectof the subject matter of that article, namely, thequestion as to the conditions under which a Statemaking reservations can definitely become a party tothe treaty. (Paragraph 2, it will be noted, is intendedto supply merely a provisional solution of the morelimited question of the treaty entering into force.) Itis convenient to preface the analysis of the solutionhere proposed by a statement of the technical diffi-culties involved, some of which have already beenreferred to in general terms in connexion with thequestion of the entrance of the treaty into force.

18. When a State objects ot the reservation madeby another State the legal consequences of such objec-tion are by no means automatic or uniform. Fourpossibilities must be envisaged: In the first instance— and this appears to be the conclusion drawn fromwhat is described as the " unanimity " doctrine — theState making the reservation does not, in the absenceof unanimous acceptance of the reservation, becomea party to the treaty in any way whatsoever. Secondly,the effect of the objection may be that the State makingthe reservation becomes a party to the treaty in rela-tion to all those States which do not object to thereservation — though it does not become so in relationto the State which has objected. Thirdly, the resultof the objection may be merely that there is no contrac-tual relation, between the State, making the reserva-tion and the objecting State with regard to the par-ticular clause covered by ther eservation. Fourthly, theobjecting State may be satisfied with moral or politicaldisapproval of the reservation without expressly attach-ing any legal consequences to the objection. Thisseems to have been the attitude, for instance, of theGovernment of El Salvador which expressed " itscomplete disagreement" with the reservations madeto the Genocide Convention by certain States andinsisted that, by failing to object to them when depos-iting its own ratification of the Convention, it didnot thereby tacitly accept them. At the same timethe Government of El Salvador emphasized that inratifying the Convention it did not intend to refer inany way to the reservations made, in an act of full


sovereignty, by certain specified countries.72 It isobvious that in the absence of legal regulation, byway of codification, of this aspect of the matter theposition must remain confused. This is bound to be soparticularly if, with regard to the State making areservation, different parties adopt different solutionsfrom amongst the four possible alternatives outlinedabove.

19. A further difficulty arises in connexion with thequestion as to who can raise an objection resulting inany of the consequences outlined above. Is it onlythe States who, by a definite act of signature, of acces-sion not requiring ratification, or of ratification, havedefinitely become parties to the treaty ? Or does thatright belong also to States who have signed or accededsubject to ratification, or who merely have the right,as yet not exercised, to do so ? The considerationsmilitating against giving the inarticulate mass ofStates — often comprising all the Members of theUnited Nations or even a potentially larger number ofStates — who are not bound by the treaty the right toprevent reserving States from becoming parties to it,have already been referred to. Similarly, as previouslypointed out, if the number of States whose finalparticipation is required for the purpose of the treatyentering into force is small — in the case of the GenevaConventions of 1949, which were signed by sixty-oneStates, that number was laid down as two — theresult may be that, whether the principle of unanimityof consent or some kind of majority decision to reserva-tions is adopted or accepted, these States may acquirea power of decision of transcending consequences forthe treaty as a whole.

20. Finally, if the principle is adopted that onlyStates who have definitely become parties to the treatymay effectively object to reservations, there arises thefurther question whether those States must have finallyaccepted the treaty without any reservations in order tobe entitled to exclude States who wish to become partiessubject to reservations. For it may be argued that itis only the State whose participation is not in questionwho is entitled to question — and to nullify — theparticipation of others. Such an argument may notbe altogether without force.

21. Paragraphs 2-4 of this draft of article 9 attemptto provide an answer to these difficulties by way of thefollowing solution:

72 Annex 123 to the written statement of the UnitedStates of America before the International Court ofJustice in connexion with the advisory opinion on theGenocide Convention (I.C.J. Reservations to the Conventionon the prevention and punishment of the crime of Genocide,Pleadings, Oral Arguments, Documents, p. 185). This wasalso the attitude of the Government of Guatemala (ibid.,p. 166). The attitude finally adopted by Ecuador leftroom for some uncertainty. On 21 March 1950 the Assis-tant Secretary-General addressed a letter to the Govern-ment of Ecuador drawing attention to a previous commu-nication of that Government in which it stated thatEcuador had no objection to make concerning the submis-sion of reservations by the Union of Soviet SocialistRepublics and some other States but that " at the sametime, it expresses disagreement with the content of thesereservations ". In answer to a request from the AssistantSecretary-General for clarification of that statement theGovernment of Ecuador replied that it " is not in agree-ment with these reservations and that therefore they donot apply to Ecuador " (ibid., pp. 153, 154).

(a) Within a period of three years subsequent to thetreaty having entered into force all the parties whichhave finally accepted the obligations of the treaty— with or without reservations of their own — aregiven an opportunity to declare whether they objectto the reservations appended by other States and, ifthey do, what effect they wish their objection toproduce. They may expressly or tacitly, i.e., byfailing to object, agree to the reservations; or they mayadopt the position that the reservations are in theirview so objectionable and contrary to the purpose andspirit of the treaty that the reserving States cannot,unless they abandon their reservations, become partiesto the treaty; or they may declare — although thiswould in any case be the result —• that while not oppos-ing the participation of a reserving State in the treaty,they will not consider themselves bound by the treaty,in relation to that State, with regard to the operationof the particular clause in respect of which a reserva-tion has been made. If less than one-third of the num-ber of States which at the end of that period havefinally undertaken the treaty obligation in question,with or without reservations, object to the reservingState becoming a party to the treaty, then that Statewill be considered a party — subject to the right ofthe other parties not to regard the treaty as operativeas between themselves and the reserving State withrespect to the clause covered by the reservation.Thus, at the end of the three years' period it will bepossible to ascertain whether the treaty has definitelyentered into force by having secured the final adherenceof the required number of States. After the end ofthat period, in case a further number of States assumethe obligations of the treaty subject to reservations,the question whether they can be regarded as contract-ing parties will be determined in the same manner— the parties up to date having an effective right ofdecision.

(b) It will be noted that, according to the solutionhere advanced, unless at least one-third of the numberof the parties object to the reserving State becoming aparty to the treaty, that State would become a partyto the treaty not only in general but also in relation toall other parties. This would mean that no partywould be in a position to declare that it does notconsider itself bound by the treaty in relation to thereserving State — although it would still be in theposition to insist that it will not apply the particularclause in relation to the reserving State. That solu-tion would eliminate what some consider to be a seriousdefect in the " American " system, namely, that aState which is a party to the treaty in general may notbe a party to it in relation to some of the other parties(which may in extreme cases mean that a State is aparty to the treaty in general although it is in effect aparty to it only in relation to one State) — a situationwhich many regard as illogical or, in any case, undesi-rable. It is possible that that criticism is not abso-lutely decisive. However, it is a criticism which is ofsufficient weight to justify the solution here proposed.

Alternative draft B

IS, in any case where a multilateral treaty does notexpressly prohibit or limit the faculty of making reser-vations, a State signs, ratifies, accedes to or otherwise

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aceepts the treaty subject to a reseryation or reserva-tions limiting or otherwise varying the obligations-of any article or articles of the treaty, the followingprocedure shall apply in the absence of any otherprovisions in the treaty:

1. The text of the reservations received shall be-communicated by the depositary authority to all theinterested States. If, on the expiry of a period of threemonths following the receipt of such communication,an interested State does not notify the depositaryauthority that it disagrees with their reservation, itshall be deemed to have accepted it.

2. Unless, after an interval prescribed by the con-vention, two-thirds of the States qualified to offerobjections have accepted the reseryation, the reservingState, if it maintains its reservation, will not be con-sidered a party to the treaty.

3. If two-thirds or more of the States referred toin paragraph 2 agree to the reservation, the reservingState will be considered a party to the treaty subjectto the right of any party not to apply to the reservingState the provision of the treaty in respect of whicha reservation has been made.

Comment

1. This alternative draft follows the preceding draftwith regard to its principal aspect, namely, inasmuchas it does not accept the principle to unanimous consentto reservations and considers the consent of at leasttwo-thirds of the total number of interested Statesto be sufficient for the purpose. To that extent thegeneral observations of the comment appended to theprevious draft apply also to draft B.

2. On the other hand, the present draft B attemptsto avoid the complications, admittedly serious, invol-ved in the previous scheme which is based on the notionof the treaty entering into force provisionally regard-less of any reservations made to it by the parties. Italso leaves it, to some extent, to the treaty to deter-mine who are the " interested States ", i.e., the Statesqualified to offer objections to the reservations — pro-vided that a period is set within which objections maybe raised. The practical effect would be that in mostcases the treaty would enter into force on the date orevent specified for the reason that the required numberof States would ratify or otherwise finally acceptthe treaty without reservations. In cases in whichthat did not happen the entry into force would bedelayed until the number of ratifications (or its equi-valent), unaccompanied by reservations — or accompa-nied by reservations subsequently agreed to by thequalified States — reaches the number required by thetreaty. This might mean a considerable delay in itsentry into force. A further complication might ariseif one of the " qualified States ", i.e., the States quali-fied to make objections to reservations, itself madereservations subsequently objected to by others.In that case the objection of that State would beimmaterial if its own reservations were objected toby one-third or more States and if, as a result, it didnot become a party to the convention.

3. The central idea underlying this scheme would besubstantially clarified if the treaty were to provide

expressly that the " qualified States " are those onlywhich themselves ratify or otherwise finally acceptthe treaty within the period prescribed by the treaty.Alternatively, following the recommendation made bythe Commission in 1951, it could be provided that theobjection of a mere signatory (or a State entitled toaccede) ceases to be valid if that State does not ratifythe treaty within a prescribed period.

Alternative draft C

If, in any case where a multilateral treaty does notexpressly prohibit or limit the faculty of makingreservations, a State signs, ratifies, accedes to orotherwise accepts the treaty subject to a reservationor reservations limiting or otherwise varying theobligations of any article or articles of the treaty thefollowing procedure shall apply in the absence of anyother provisions in the treaty:

1. The parties or the organ of an internationalorganization responsible for establishing the text ofthe treaty shall designate a committee, appointed ina manner to be agreed by them, competent to decideon the admissibility of reservations made by anyGovernment subsequent to the establishment of thetext of the treaty.

2. The text of the reservations received shall becommunicated by the depositary authority to all theinterested States. If, on the expiry of a period ofthree months following the receipt of such communi-cation, an interested State does not notify the deposi-tary authority that it disagrees with the reservation,it shall be deemed to have accepted it.

3. If a reservation is objected to by a State qualifiedto object, then it shall be competent for the committee,at the request of the State making the reservation,to decide whether the reservation is admissible. Ifthe reservation is declared inadmissible then the Statein question cannot become a party to the treaty if itmaintains the reservation.

Comment

1. The main provision of this alternative draft isself-explanatory. It confers upon a standing committeedesignated by the States or the international organwhich have established the text of the treaty the powerto decide upon the admissibility of a particular reserva-tion. Proposals of this character have been made inthe past.73 If adopted, it would eliminate the diffi-

73 A suggestion on these lines was made in 1932 bySir Arnold McNair with regard to reservations to Inter-national Labour Conventions concerning points " ofminor discrepancy " between the Convention and nationallaws. The International Labour Office did not accedeto the suggestion. It may be convenient to reproduce theproposal in full:

" 7. To put my suggestion into concrete form, it isthis — that every convention, and, upon its periodicalrevision, every revised convention, shall contain aclause running somewhat as follows:

" 'In order to obviate difficulties in the way ofratification arising from points of minor discrepancybetween the text of this convention and the text ofnational laws or decrees in existence or to be passedto give effect to this convention each Member maysubmit to the Reservations Committee of the Conference


culties connected both with the entry of the treatyinto force and with the complications arising out ofthe necessity for an individual decision by States.

2. The procedure as here proposed contains noanswer to the question who are the States qualifiedto object to a reservation. That answer would besimplified — in fact, the necessity for it would beremoved altogether — if it were provided that thecommittee should decide on the question of the admis-sibility of the reservation regardless of whether anobjection has been raised against it.

3. It is not considered necessary to elaborate thedetails or possible variations of the solution here out-lined, for instance, whether the committee should be theregular body to decide on the admissibility of reserva-tions or whether it should act only if objection is raisedby a State (a variation which would immediately raisethe question as to what categories of States are entitledto object); whether the decisions of the Committeeshould be by a majority, and what kind of majority;whether it should be composed of the States designatedor of independent persons appointed by them; andmany others. Should a solution on these lines recom-mend itself to Governments, further considerationmight be given to an elaboration of the requisiteprocedure.

4. The advantages of simplicity and expeditionwhich characterize this particular solution may beconsidered by some to be so obvious as to outweighany disadvantages or doubts inherent in it. Of thesethe most important is the possible — and perhapsnatural — reluctance of governments to confer upon abody over which they would have no control the essen-tially discretionary power to decide on modificationsin the contents of the treaty in matters which may

the text of any reservation which it may desire tomake. The Reservations Committee shall take suchproposed reservations into consideration, and if, actingby a majority of not less than two-thirds, they are ofopinion that the reservation is reasonable havingregard to the legal system and other circumstancesprevailing in the country of the Member proposing it,and can be permitted without endangering the unifor-mity of the application of this convention, they shallnotify their assent to the Member. Thereupon aratification to which such reservation is attached shallbecome effective unless and until it shall be disallowedby the General Conference of the Organization at thesession next ensuing.'

" 8. Further, it would be necessary for the Confer-ence to constitute a Reservations Committee on somesuch basis as the following:

" 'The Reservations Committee shall be a standingcommittee of the Conference, consisting of six members,of whom four shall be permenent members (two beinggovernment delegates, one other being a delegaterepresenting employers, and one other being a delegaterepresenting workers) and two shall be non-permanentand appointed ad hoc by the Governing Body andhaving special technical knowledge with referenceto each convention.'" (I.C.J., Reservations to theConvention on the prevention and punishment of thecrime of Genocide, Pleadings, Oral Arguments, Documents,p. 259).

The Protocol to the Convention for the Simplification ofCustoms Formalities of 3 November 1923 empowered theCouncil of the League of Nations to decide upon theadmissibility of certain reservations after consulting abody of experts to be appointed by it.

refer to fundamental aspects of its provisions andwhich do not admit of an answer by reference to ascer-tainable legal standards. This latter considerationmay be held to apply, for instance, to the test laid downby the International Court of Justice in its advisoryopinion on the reservations to the Genocide Conven-tion, namely, the test of compatibility with the purposeand object of the convention. It is clear that anyreservation to a particular clause is incompatiblewith the purpose and object of that clause. Thequestion to be answered, therefore, is whether thatparticular clause constitutes an essential object andpurpose of the treaty. Thus an article conferring uponthe International Court of Justice jurisdiction indisputes relating to the interpretation or applicationof the treaty may be regarded by some as of a purelyprocedural character separable from the main purposeof the treaty. Others may regard that jurisdictionalclause as being of the very essence and the principalraison d'Stre of the treaty — particularly if its substan-tive provisions are in fact no more than declaratoryof the general legal and moral sentiment of the contract-ing parties. It is difficult to visualize any legal answer,which is not purely subjective in nature, to questionsof this character. However, this very circumstancemay militate in favour of entrusting the power ofdecision on this question to an organ which is partlyexpert and partly political in its composition.

Alternative draft DIf, in. any case where a multilateral treaty does not

expressly prohibit or limit the faculty of makingreservations, a State signs, ratifies, accedes to orotherwise accepts the treaty subject to a reservationor reservations limiting or otherwise varying theobligations of any article or articles of the treatythe following procedure shall apply in the absence ofany other provisions in the treaty:

1. The parties or the organ of an internationalorganization responsible for establishing the text of thetreaty shall request the International Court of Justiceto designate under its Rules a Chamber of SummaryProcedure to decide on the admissibility of reservationsmade by a Government subsequent to the establishmentof the text of the treaty.

2. The text of the reservations received shall becommunicated by the depositary authority to all theinterested States. If, on the expiry of a period ofthree months following the receipt of such communi-cation, an interested State does not notify the deposi-tary authority that it disagrees with the reservation,it shall be deemed to have accepted it.

3. If a reservation is objected to by a State qualifiedto object, then it shall be competent for the Chamberof Summary Procedure, at the request of the Statemaking the reservation, to decide whether the reser-vation is admissible. If the reservation is declaredinadmissible then the State in question cannot becomea party to the treaty if it maintains the reservation.

Comment

As in the case of draft C, the main provision of thepresent alternative draft D is self-explanatory. Itsobject is to confer upon a Chamber of Summary

Law of treaties 135

Procedure, to be constituted by the International•Court of Justice under its rules, the power to decideupon the admissibility of a reservation either in thefirst instance or by way of appeal against the rejection•of the reservation by any of the parties (or potentialparties) to the treaty. A solution on these lines has anumber of features in common with that proposed indraft C. It is in some respects open to the same doubts.But there is attraction in the idea that disputes of thisnature — to some extent there are present the elementsof a dispute in a situation in which a State puts forward-a contested claim to be entitled to append a reserva-tion — should be decided by a body of permanent•composition and of acknowledged independence, andwhich is capable, by virtue of the continuity of itspractice, of developing standards of general applica-tion. This is so although, essentially, the question ofthe admissibility of a particular reservation is probablynot of a legal character but calls for a decision of alegislative nature. However, there would seem to beno reason why a permanent and authoritative bodyshould not make a weighty contribution, in additionto solving concrete difficulties, to developing legisla-tive standards of value. In so far as a particularreservation involves the issue of its compatibility withthe general object and spirit of the treaty it raises thequestion whether the right to append reservations hasbeen exercised in good faith. As such it is a questionof fact which is not outside the proper province of thejudicial function. As in the case of a standing commit-tee designated bu the signatory States, as outlinedabove in draft C, recourse to the summary procedureof the Court might — to an even larger extent — pro-vide a solution conspicuous for its simplicity and expedi-tion. Inasmuch as it could be adopted within theframework of a general codification of the law oftreaties it would render unnecessary the creation of aspecial body for every treaty. Nor would it throwan undue burden upon the Court as a whole. Theacceptance of such a function by the Court would bein keeping with its readiness in the past to assist in thesettlement of disputes in cases not calling for the exer-cise of the judicial function proper.

Note

(1) The length of the comment to this article exceedsconsiderably that to other articles of the present draft.This is so not only on account of the complexity of thesubject but also because the various solutions formu-lated in the article de lege ferenda differ from thoseadopted in the past by Governments and officialbodies, as well as by the Commission itself. For thisreason the special Rapporteur considered a fullerelaboration of the comment to be appropriate.

(2) The nature of the subject explains also why theSpecial Rapporteur has adopted the method of present-ing a number of alternative solutions, without express-ing an obvious preference for any of them. The SpecialRapporteur is of the opinion that the formulation ofprinciples to be adopted on the subject comes withinthe purview of the task of the Commission connectedwith the codification of the law of treaties after it haslaid down what is still the existing law. VariousGovernments represented at successive sessions of theGeneral Assembly have voiced the view that the

Commission should devote, in connexion with itswork on treaties, further consideration to the matter.In presenting in 1951 its report, which was based onthe predominant doctrine of the requirement of unani-mous consent, the Commission probably envisagedits task in the matter as being limited substantiallyto codification of the existing law. The conclusionsof the report, thus conceived, did not prove acceptableto a large majority of States represented at the SixthSession of the General Assembly in 1951. In the viewof the Special Rapporteur, even prior to the contro-versy brought about by the reservations to the GenocideConvention, it was felt increasingly that the doctrineof unanimous consent was not free from difficulties.Sir William Malkin, writing on the subject in 1926,while still adhering to the view that every reservationmust be the subject of definite acceptance by othersignatories,74 welcomed developments tending to miti-gate the rigidity of the then existing system and toensure " the acceptance of reservations which areconsistent with the intentions of the original signatoriesbut no others ".76 Having regard, apart from theinherent shortcomings of the traditional view, to thegrowing flexibility of the procedure of concludingtreaties and the present unwillingness of many— perhaps a majority of — Governments to accept theunanimity principle in the matter, the subject ofreservations lends itself to a combination of twomethods, of codification and development, open to theCommission by virtue of its Statute. The variousalternative drafts of article 9 are drafted on thatassumption. The argument that the principle ofunanimous consent has operated satisfactorily in thepast is, perhaps necessarily, inconclusive. It is noteasy to assess to what extent the frequent absence ofratification of numerous conventions on the part of alarge number of States — occasionally to the point ofcausing the convention not to enter into force — wasdue to the operation of the rule of unanimous consentand to the resulting difficulty of making reservations.The Hague Convention of 1930 relating to Conflictsof Nationality Laws did not secure wide acceptancealthough it provided that the parties may, whensigning, ratifying, or acceding, attach reservations toall substantive provisions of the Convention." On theother hand, it may not be easy to accept the view thatthe principle of unanimous consent did not give riseto difficulties. The existence of these difficultiesexplains the discussions, before the League of Nations

74 In British Year Book of International Law, vol. 7(1926), p. 160. Similarly, Mr. Jenks, writing in 1945,pointed to the " marked tendency, in the case of instru-ments negotiated under the auspices of the League ofNations, to endeavour to expedite their acceptance by theinclusion of provisions designed to facilitate the accep-tance of reservations by relaxing the ordinary rule ofinternational law that an instrument cannot validlybe accepted subject to a reservation unless the reservationis accepted by all the parties to the instrument " (Ameri-can Journal of International Law, vol. 39 (1945), p. 167).

76 Lot. cit., p. 162.76 There are other instances of treaties allowing in

advance reservations of wide and almost unlimited scope.Thus the Convention of 14 September 1939 on the Statusof Refugees Coming from Germany provides that " theHigh Contracting Parties may make reservations concern-ing articles contained in chapters to which their obliga-tions extend" (M. Hudson, International Legislation,vol. 8, p. 32).


and elsewhere, of this question in the period precedingthe establishment of the United Nations.

(3) For reasons which appear in the comment, noneof the schemes here outlined follow that aspect of theso-called " American system ", as adopted in 1938,which recognizes the possibility of a State being aparty to a treaty in relation to some but not to otherStates. As already pointed out, that feature of theAmerican system is not without precedent. However,it is probable that decisive weight must be attachedto the view that a system of that nature detracts fromthe unity of the treaty; that it transforms it, in manyrespects, into a loose combination of bilateral agree-ments; and, above all, that it has hardly any applica-tion to treaties which, in fact, do not create rightsand obligations as between the parties but which areintended to establish an absolute obligation of allparties."

(4) Any procedural regulation of the subject ofreservations within a general codification of the lawof treaties must be purely optional in character. Itmust remain open to the parties, in conformity withthe recommendation made in the report of the Commis-sion in 1951 '8 and approved by the resolution of theGeneral Assembly of that year, to adopt any other

" As with regard to the system ol unanimous consentso also with regard to the " American system " divergentviews have been expressed as to the success of its opera-tion. The Department of International Law and Orga-nization in the Pan-American Union has stated that thatpractice is well adapted " within the limited inter-American system " and that it has successfully operatedwithin that sphere. " The Pan-American Union proce-dure is believed to be best adapted, within the limitedinter-American regional system, to increasing the numberof ratifications and widening the use of treaties both forpurposes of a contractual character and for the develop-ment of general principles of international law. Thusfar it has not had the effect, to which it might logicallyhave given rise, of creating confusion in respect to theobligations of the various treaties which have beenentered into. Whether the procedure is as well adaptedto the larger organization of the United Nations, inwhich law-making treaties may be expected to play alarger part than in the inter-American regional system,is a question apart from the scope of the present memo-randum." (I.C.J., Reservations to the Convention on theprevention and punishment of the crime of Genocide,Pleadings, Oral Arguments, Documents, p. 20.) In hisarticle on " Reservations to Multilateral Conventions "Mr. Fitzmaurice has adduced impressive evidence of thedissatisfaction, among some American countries, withthe operation of the system (International and Compara-tive Law Quarterly, vol. 2 (1953), pp. 20-22). The follow-ing quotation, included in that article, from a report of an(apparently different) organ of the Pan-American Unionis of interest: " The absence of a definite criterion as tothe effect of reservations made at the time of signature . . .has given rise to various interpretations so different fromone another in some cases — as in that of the EconomicAgreement of Bogota — that they have made the instru-ment impracticable because no State considers it wiseto ratify a multilateral agreement whose applicationvaries with each country as a result of numerous reserva-tions." (ibid., pp. 20-21.)

'• The Commission suggested that " the organs of theUnited Nations, specialized agencies and States should,in the course of preparing multilateral conventions,consider the insertion therein of provisions relating to theadmissibility or non-admissibility of reservations and tothe effect to be attributed ot them " (A/1858, para. 33,in Yearbook of the International Law Commission, 1951,vol. II, p. 130).

provisions governing the matter. They may provide-that no reservations shall be admissible, or thatreservations shall not be admissible with regard tospecified articles. The relevant article of a code-would merely lay down what, in the absence of regula-tion by treaty, shall be the procedure governing the-subject. Of necessity, that article must be of ageneral character. It cannot take full}' into account,the fact of the wide diversity of treaties. Thus there-may be a clear difference, for the purpose of reserva-tions, between a humanitarian treaty, such as theGenocide Convention, and a treaty of a political oreconomic nature in which reciprocity and uniformityof obligations may be an essential feature of thearrangement. In such cases it may be particularlydesirable that the treaty should contain detailedprovisions as to the admissibility and the effect ofreservations. An article of a Code of the Law ofTreaties is not the most suitable medium for impressingupon governments the desirability of incorporatingsuch detailed regulation. That purpose may be partlyachieved by reiterating, in connexion with the codifi-cation of the law of treaties, the resolution of the GeneralAssembly on the subject.

(5) Whatever scheme is eventually adopted, it is.probable that the function of the depositary authoritywill have to be of a purely administrative nature. Itwill have to be relieved of any responsibility for decid-ing on the question whether, having regard to thereservations appended, the treaty has entered intoforce. Its function would be limited to that of receiv-ing the declarations, varying in form, of acceptanceof treaty obligations; communicating them, and anyreservations attached to them, to the Governmentsconcerned; and, if necessary, obtaining a clarificationof any statements or declarations made by Governmentsin this connexion. This would apply also to the ques-tion whether any particular statement or declarationdoes or does not constitute a reservation.'9

'» It may be noted in this connexion that there is nocompelling reason to regard as reservations such declara-tions as merely limit the effect of a provision of thetreaty. As Professor C. Hyde has put it: " The practiceof States seemingly rejects the conclusion that a reserva-tion must be confined to a proposal or condition thatlessens the scope of burdens set forth in a text in relationto the reserving State. There are instances where a reser-vation has served to modify by enlargement obligationsto be borne by other parties or prospective parties inrelation to the reserving State." (C. C. Hyde, InternationalLaw (2nd ed., Boston, 1945), vol. 2, p. 1435.) The ques-tion whether a declaration amounts to a reservation isindependent of the designation given to it by the declaringState. The United States of America signed in 1938 anumber of International Labour Conventions subjectto " understandings " which were made a part of theratification. Ir was stated on that occasion by theUnited States that " these understandings are deemednot to be reservations which would require the acceptanceof the other governments, but to be merely clarificationsof definitions to show that the definitions accepted by theUnited States of America are in fact those that were in-tended by the Conference." The formal notification wasmade " subject to the understandings hereinafter recitedand made part of this ratification " (Official Bulletin ofthe International Labour Office, 23 (1938). No. 4, pp. 128-136). Hackworth's Digest of International Law (1943),vol. 5, pp. 144-153, contains an interesting section on" Understandings Short of Reservations".

Law of treaties 137

Part III

Conditions of validity of treaties

Section ICapacity of the parties and of their agents

Article 10

Capacity of the partiesAn instrument is void as a treaty if concluded in

disregard of the international limitations upon the•capacity of the parties to conclude treaties.

Comment

1. This article overlaps to some extent with article 1{which contains the definition of a treaty) and article 16(which lays down that a treaty is void if its performanceinvolves a breach of a treaty obligation previouslyundertaken by one or more contracting parties). Itis thus probable that the present article may be of asomewhat residuary character and, to that extent, oflimited practical importance. Moreover, one of themain difficulties which surround this subject is thefact that while in municipal law the contractual capa-city of persons is defined by overriding rules of law, inthe international sphere the requisite status may beconferred by the very fact that an instrument claimedto be a treaty is concluded by an indisputably sovereignState with an entity whose legal status has hithertobeen doubtful. A further difficulty is due to the cir-cumstance that the question covered by the presentarticle does not seem to have received either judicialconsideration or any frequent or uniform treatment,justifying the drawing of confident conclusions, onthe part of Governments.

2. The following entities whose capacity to concludea treaty may be controversial come within the purviewof the present article:

(a) Dependent States, in particular Protectorates;(b) Subordinate States such as member States of

Federal States;(c) Sovereign States whose contractual capacity is

limited as the result of the conferment of a certainstatus, as in the case of neutralized States;

(d) Sovereign States whose freedom to contract hasbeen limited as the result of the assumption of interna-tional obligations in specified spheres;

(e) International organizations inasmuch as theircontractual capacity is limited by the scope of thepowers assumed by them in their constitutions.

These five categories may now be considered in turn.

3. Dependent States, in particular Protectorates. Pro-tectorates to which reference is made here are States— and they are States probably also in contemplationof international law — which, although normallyrepresented in the field of international relations by theprotecting States, have a separate administrativeexistence and distinct degree of autonomy.80 There is

80 This rules out political communities such as theBritish colonial protectorates — although the borderlinebetween the latter and ordinary protectorates is somewhatelastic. Thus in the case of the Duff Development Company

an occasional tendency to assume that such States," not being members of the international community ",possess no power to conclude treaties. That statement,which is probably inaccurate, seems to beg the question.The status of a political entity as a member of theinternational community depends upon various factors,including the capacity to conclude treaties. This doesnot necessarily mean that the capacity to concludetreaties depends on the status as a member of theinternational community. It is probably more accurateto say that, unless the contrary is expressly provided inthe treaty establishing the protectorate, the protectedState does possess capacity to conclude treaties— at least with the consent of the protecting State.Thus, for instance, while France signed the Interna-tional Sanitary Convention of 21 June 1926 (M. Hudson,International Legislation, vol. 3 (1925-1927), p. 1903)on her own behalf and on behalf of a number of herpossessions and mandated territories, Tunisia andMorocco were separate parties to that Convention.Similarly, the Convention of 5 June 1935 concerningUnification of Methods of Analysis of Wines in Inter-national Commerce included among the parties theretothe Sultan of Morocco and the Bey of Tunis signingin their own name (ibid., vol. 7, p. 89). This was alsothe case with regard to the International Conventionfor the Protection of Industrial Property of 2 June 1934(ibid., vol. 6 (1932-1934), p. 870). Other numerousexamples of the exercise of the treaty-making powerof Protectorates can be quoted.81 In addition, treatiesare often concluded, subsequent ot the establishmentof the Protectorate, between the protecting and theprotected States. Thus the Treaty of 8 June 1883between France and Tunisia confirmed the Treatyof 12 May 1881 establishing the protectorate andprovided for internal reforms and French financialassistance to Tunisia. Various treaties and agreements— which subsequently gave rise to the advisory opi-nion of the Permanent Court of International Justicein the matter of the Jurisdiction of Danzig Courts(Publications of the P.C.I.J., Series B, No. 15) — wereconcluded between Poland and Danzig.82

While therefore the general capacity of a protectedState to conclude treaties is not at issue, the questionwhich arises under the present article is that connectedwith any express limitation or exclusion, by the treatyestablishing the protectorate or any subsequent treatywith the protecting State, of the right of the protectedState to conclude treaties. Thus in the Treaty of3 August 1881 with the Transvaal Great Britain re-served for herself the " control of the external relations

Ltd. v. Government of Kelantan [1924] A.G. 797 theBritish Foreign Office informed the Court that Kelantanwas an independent State notwithstanding the fact thatby virtue of an agreement regulating the relations betweenthe United Kingdom and the State of Kelantan-the latterundertook to have no political relations with any foreignPower except through the medium of the Government of.the United Kingdom and to follow, in all matters ofadministration, the advice of an adviser appointed by theGovernment of the United Kingdom. In the same agree-ment the United Kingdom undertook not to interferewith the internal administration of Kelantan save incertain exceptional contingencies.

81 For some of them see Hackworth, Digest of Inter-national Law, vol. 5 (1943), p. 154.

88 And see for other instances the comment to article 1above.

138 Yearbook of the International Law Commission, VoL II

of Transvaal including the conclusion of treaties ".Similarly, article 104 (b) of the Treaty of Versaillesand the Convention of Paris of 9 November 1920between Poland and Danzig provided that the formershall undertake the conduct of the foreign relations ofDanzig — a provision which the Permanent Court ofInternational Justice described as constituting anorganic limitation and essential feature of the politicalstructure of Danzig (Publications of the P.C.I.J.,Series B, No. 18, p. 11). In some cases, as in theTreaties of France with Morocco (30 March 1912),Tunisia (12 May 1881) and Monaco (17 July 1918),the conduct of international relations of the protectedStates was subject to an " entente prealable " withFrance. It is with regard to treaties concluded by theprotected State in disregard of such limitations thatthe question arises as to the validity of the treaty thusconcluded. There is some authority in support of theview that such treaties are void. Hall says: " Allcontracts therefore are void which are entered into bysuch [protected] States in excess of the powers retainedby, or conceded to, them under their existing relationswith associated or superior States." (InternationalLaw (8th ed., Oxford, 1924), p. 380.) In an Opinion ofthe British Law Officers of the Crown of 27 April 1896(reported in Sir Arnold McNair's The Law of Treaties(op. cit, p. 139)) the view was espressed that a treatyconcluded by the South African Republic in disregardof the Treaty of 1881, referred to above, with Transvaalwas invalid. They admitted that the offending treaty— a treaty of extradition — was not " in itself ofgreat importance", but held that " the principleinvolved is obviously of the utmost gravity " (p. 140).In 1908 the Acting Secretary of State of the UnitedStates stated in his instructions to the AmericanAmbassador to Turkey as follows: " A State proposingto enter into treaty relations with another State whichis not fully sui juris, a State whose personality is inany way incomplete or abnormal, by reason, for in-stance, of its dependence in any from upon anotherState or its membership of a larger unit such as aFederal State, is deemed to have notice of its deviationfrom normal and complete capacity and must satisfyitself that the proposed treaty falls within the limitedcapacity of the other contracting State. Treatiesmade by such States in excess of their capacity arevoid " (Hackworth, Digest of International Law, vol. 5(1943), p. 153).

On the other hand it has been suggested that treatiesconcluded by a dependent State in disregard of itscontractual capacity are merely voidable — apparentlyat the option of the protecting State. Thus Sir ArnoldMcNair while stating that the British Government hadhad no opportunity to pronounce itself on the questionand that the question does not admit of a generalanswer, suggests that where " the dependent State isallowed to conclude treaties subject to the communica-tion of them to the dominant State and to the latter'sveto within a certain period, it would seem probablethat the former's treaties are only voidable, beingmade subject to a resolutive condition, and are validuntil timously vetoed " (op. cit., p. 138). ProfessorC. Hyde, in a somewhat inconclusive treatment of thesubject, seems to have suggested that treaties hereunder discussion are not necessarily " without anylegal value " and that they are voidable rather than

void.8* (International Law, op. cit, 2nd ed., vol. I I ,p. 492). It is submitted that, in this case, the distinc-tion is probably without a practical difference. Ingeneral, the matter must be regarded as governed by theoverriding principle — elaborated below in article 16 —that treaties concluded in violation of previous treaties-are void. Any mitigation of that principle must bebased on the fact of the implied consent, manifestedthrough absence of protest, on the part of the protect-ing State. When such protest occurs it is sufficient torender the treaty void and as such unenforceable. As,the question is one of status imposed not as the resultof any general operation of a rule of law but in conse-quence of a — usually bilateral — treaty, it is probablyunnecessary in this case to follow what is apparentlythe correct logical conclusion and to hold that a treatyconcluded in disregard of the contractual capacity ofthe dependent State is unalterably and irremediablyvoid. It is preferable to regard the absence of proteston the part of the superior State as equivalent toacquiescence amounting to a renunciation of thelimiting provisions of the original treaty. If that is so,the question of its violation, whit the resulting invali-dity of the subsequent treaty, no longer arises. In theabsence of such acquiescence the treaty must beregarded as void. The question whether the treatyconcluded in disregard of the dependent status of aparty is voidable at the option of the other party tothe subsequent treaty, who — for excusable reasons —had no knowledge of the limitation, is too theoreticalto require detailed treatment.

4. Subordinate, in particular member states of federalstates. It might be maintained that no question ofvalidity of treaties concluded by members of FederalStates can in fact arise on the international plane forthe reason that such subordinate States, not beingStates in the sense of international law, cannot concludeinternational treaties. As pointed out above in theComment to article 1, such argument cannot be re-garded ashelpful. According to the constitutions of anumber of countries State members of Federal Statesare authorized to conclude treaties. Thus an amend-ment of 1 February 1944 to the Constitution of theUnion of Soviet Socialist Republics confers on eachRepublic of the Union " the right to enter into directrelations with States, to conclude agreements withthem, and to exchange diplomatic representativeswith them " (Law on the Granting of Authority to theUnion Republics in the Sphere of Foreign Relations).In pursuance of that law the Ukrainian S.S.R. andthe Byelorussian S.S.R. became separately Membersof the United Nations. They have become, in theirown name, parties to numerous multilateral Conven-tions. Article 32 of the Constitution of WesternGermany of 1949 provides that in so far as the member

88 The circumstance — to which Professor Hydeattached importance — that the protests of the superiorState have often remained without effect is probablyonly of limited legal relevance. In some cases, theseprotests were not, it appears, well founded in law. Thuswith regard to Bulgaria — with regard to which occasionalprotests were made by her Turkish suzerain against theexercise by her of the treaty-making power — British LawOfficers held in 1894 that the limitations imposed uponBulgaria in the Treaty of Berlin did not make it improperfor the British Government to conclude a treaty with her(McNair, op. cit, pp. 141-144).

Law of treaties 139

'States (Lander) are competent to legislate they may,with approval of the Federal Government, concludetreaties with foreign States.84 Article 78 of the WeimarConstitution of 1919 was to the same effect. Article 9•of the Swiss Constitution of 1848 conferred upon the•Cantons the power to conclude treaties with foreignStates on the subject of public economy, relations withneighbouring States and police matters along the borderprovided that they are not incompatible with theinterests of the Confederation or the rights of otherCantons. It appears that treaties of this descriptionhave been concluded between Swiss Cantons andGerman States.85 It is believed that treaties thusconcluded by State members of Federal States aretreaties in the meaning of international law. Theyare treaties in the contemplation of the present article10 of this draft. They are concluded in conformitywith the contractual capacity, as required by inter-national law, of the member States in question.International law authorizes States to determinethe treaty-making capacity of their political sub-divisions. The conferment, by the constitutional lawof the Federal States in question, of the treaty makingcapacity upon their member States amounts, uponanalysis, to a delegation of that power on the part ofthe Federal State. This fact is emphasized by theoccasional requirement of express authorization bythe Federal authority and of conformity with theinterest of the other members of the Federation.

On the other hand, in the absence of such authorityconferred by federal law, member States of a Federa-tion cannot be regarded as endowed with the powerto conclude treaties. For according to internationallaw it is the Federation which, in the absence of pro-

8< Kraus, " Die Zustandigkeit der Lander der Bundes-republik Deutschland zum Abschluss von Kulturabkom-men mit auswartigen Staaten nach dem Bonner Grund-gesetz," in Archiu des Volkerrechts, vol. 3 (1915-1952),pp. 414-427.

84 In 1874 Baden and Basle concluded an agreementproviding for the establishment of a ferry. In 1907 Basle-Land and Aargau concluded an agreement with Baden forthe establishment of a hydro-electric plant. In 1935Bern and Neuchatel concluded agreements with France.See generally on the subject E. His in Revue de droitinternational et de la Ugislation comparie (1929), pp. 454-479.

The Joint Resolution of Congress of the United Statesapproved on 4 August 1947 in the matter of the Head-quarters Agreement Act provides in section 4 as follows:

" Any States, or, to the extent not inconsistent withState law any political subdivisions thereof, affectedby the establishment of the headquarters of the UnitedNations in the United States are authorized to enter intoagreements with the United Nations or with each otherconsistent with the agreement and for the purpose offacilitating compliance with the same: Provided, that,except in cases of emergency and agreements of aroutine contractual character, a representative of theUnited States, to be appointed by the Secretary ofState, may, at the discretion of the Secretary ofState, participate in the negotiations, and that anysuch agreement entered into by such State or States orpolitical subdivisions thereof shall be subject to approvalby the Secretary of State."

While this provision cannot be interpreted as conferringupon States any treaty-making power proper, it is ofinterest in this connexion as covering agreements whichare not of " a routine contractual character " and asrequiring the consent of the Secretary of State to whatpersumably must be arrangements of a public lawcharacter.

visions of constitutional law to the contrary, is thesubject of international law and international inter-course. It follows that a treaty concluded by a mem-ber state in disregard of the constitution of the Federa-tion must also be considered as having been concludedin disregard of the limitations imposed by internationallaw upon its treaty-making power. As such it isnot a treaty in the contemplation of international law.As a treaty, it is void. Moreover, as unlike in thecase of protected States a State member of a Federa-tion is not prima facie a subject of international law,it would seem that there is in this case no question ofthe treaty being merely voidable at the option of theFederal State.

5. Limitation of contractual capacity of sovereignstates as the result of the creation of a certain status as inthe case of neutralized States. While the limitation,by virtue of their status, of the contractual capacity ofdependent and subordinate States covers, as a rule,the entirety of the treaty-making power, the lattermay be limited in a particular sphere in consequenceof conventional regulation amounting, within thatsphere, to the creation of a status. This applies, inparticular, to a neutralized State. The status of neutra-lity consists, on the one hand, in the guarantee ofindependence and integrity given to the neutralizedState, and — on the other hand — in the undertakingof the latter to refrain, inter alia, from concludingtreaties calculated to jeopardize its neutrality and toinvolve it in war. Switzerland being the only neutral-ized State in existence,86 there is little practical impor-tance attaching to the subject. In principle, however,in so far as arrangements of that nature amount towhat has been described as an international settle-ment 8' of an objective character — and they do soto a large extent — they would seem to constitute alimitation of contractual capacity in a way whichrenders void treaties concluded in disregard of thelimitation thus accepted. This is so quite apart fromthe fact that a treaty concluded by the neutralizedState in disregard of its voluntarily accepted obliga-tions as a neutralized State probably falls under theprinciple, formulated below in article 16, avoiding

»• Article 24 of the Lateran Treaty of 11 February 1929between Italy and the Holy See provided that the VaticanCity shall in all circumstances be considered as neutraland inviolable territory. It is doubtful whether thatarticle, incorporating a declaration to that effect issuingfrom the Holy See, can be regarded as having the effectof constituting the Vatican City a neutralized State.There are clearly absent from this article the typicalelements of neutralization. With regard to Belgium andLuxembourg it must be assumed that their neutralizedstatus has disappeared as the result of obligations under-taken by their acceptance of the Charter of the UnitedNations.

87 See the advisory opinion of the International Courtof Justice on the International Status of South WestAfrica of 11 July 1950 where the Court held that " theinternational rules regulating the Mandate constitutedan international status for the Territory recognized by allMembers of the League of Nations " (I.C.J. Reports 1950,p. 132) See also for a similar explanation of the provisionsof the Treaty of Paris relating to the demilitarization ofthe Aaland' Islands the Report of the Committee ofJurists appointed in 1920 by the Council of the League ofNations: Official Journal of the League of Nations, 1920,Special Supplement, No. 3.

140 Yearbook of the International Law Commission, Vol. EL

treaties inconsistent with previous treaties.88 It maybe noted that the Treaty of 31 May 1867 which effectedthe neutralization of Luxembourg and to which Belgiumwas a signatory, provided expressly that Belgiumwould not be one of the guaranteeing Powers on theground that she herself was " un £tat neutre ". Herneutralized status was thus regarded as a reason forher legal incapacity to undertake the obligation of aguarantee.

6. Sovereign States whose freedom to contract has beenlimited as the result of the assumption of internationalobligations in specified spheres. It is probable thatthis category of cases does not constitute a limitationof contractual capacity. In a sense, every obligationby which a State is bound by virtue either of customaryor conventional international law constitutes a limita-tion of its contractual capacity inasmuch as henceforthit is not lawful for it to conclude a treaty inconsistentwith its obligations. However, there seems to be nowarrant for stretching to that point the notion ofcontractual capacity. Two examples may illustratethe situation. The treaty of 22 May 1903 betweenthe United States of America and Cuba provided that" the Government of Cuba shall never enter into anytreaty or other compact with any foreign Power orPowers which will impair the independence of Cuba,nor in any manner authorize or permit any foreignPower or Powers to obtain by colonization, or formilitary or naval purposes, or otherwise, lodgment inor control over any portion of the said island ". Itmight be said that the restrictions imposed upon Cubain that article were of such wide compass as to affecther status in the sphere of her contractual capacity.On the other hand, many may prefer the view thatalthough in the treaty of 1903 Cuba agreed not toenter into treaties impairing her status as an indepen-dent State, the treaty itself did not formally affect herstatus •— including her contractual capacity — as aState. Probably it is of no considerable legal conse-quence which view is adopted, namely, whether atreaty concluded in violation of the restriction imposedis void on the ground of absence of contractual capacity(either in general or within a limited sphere) or whetherit is void by virtue of the principle formulated belowin article 16, which nullifies treaties inconsistent withformer treaty obligations. The same applies to thedeclaration, subscribed by Austria in a protocol signedon 4 October 1922 which she undertook not to alienateher independence and to abstain from any economicor financial engagement calculated directly or indi-rectly to compromise her independence. In its advisory

88 Sir Arnold McNair in The Law of Treaties, op. cit,pp. 135-137 quotes a number of authorities in the formof opinions of British law Officers of the Crown, which,however, seem to be inconclusive and partly contradictory.In a opinion given on 22 July 1872 the Law Officersconsidered that the only consequence of a permanentlyneutralized State entering into a treaty inconsistentwith its status would be the release of the guaranteeingPowers from their obligations. Sed quaere, seeing that,in addition to the guarantee, the status of neutrality isalso based on the obligation of the State whose indepen-dence is guaranteed. On the other hand, in an opiniongiven on 4 May 1871 the Law Officers held that theaccession of Luxembourg to the Germanic Confederation" would be a violation of the Treaty of 1867 " on the partof Luxembourg.

opinion given on 19 March 1931 (Publications of theP.C.I.J., Series A/B, No. 41) the Permanent Court ofInternational Justice held that a customs union estab-lished between Germany and Austria would not be-compatible with the obligations of the protocol of 1922.It must remain largely a question of terminology whe-ther the obligations of Cuba and Austria, respectively,under the treaties referred to above were such as toumpair their contractual capacity (and, as the result,,render void treaties concluded in disregard of suchlimitations) or whether they merely imposed uponthem the duty to refrain from undertaking a specifiedkind of obligations (with the result that such obliga-tions, if entered into, could produce no legal results).The same problem arises in connexion with Article 102of the Charter of the United Nations relating to theregistration of treaties. It may be said that the contrac-tual capacity of every Member of the United Nationsis limited, in relation to Members and non-membersalike, to the extent that it cannot conclude a treatyenforceable by any organ of the United Nations,unless that treaty is registered. Or it may be saidthat the effect of Article 102 is merely to create anobligation to register treaties, without affecting thecontractual capacity of Members of the United Nationsand that the result of non-compliance with that pro-vision is merely that the non-registered treaty cannotbe invoked, with the view to its enforcement, beforean organ of the United Nations. The same applies,in a different sphere, to article 103 of the Charterinasmuch as its consequence is to qualify the contrac-tual capacity of Members of the United Nations in thesense that they cannot effectively conclude treatieswhich may prove inconsistent with their obligationsunder the Charter — for such treaties must yield, whenthe case arises, to the provisions of the Charter. Yetit may be difficult to regard any treaty concluded bya Member of the United Nations as void — on accountof incapacity to contract — on the mere ground thatit does not include a reference to the overriding pro-vision of Article 103. For these reasons the Commissionis of the opinion that obligations, however wide, accep-ted by a State in a treaty do not constitute a limitationof its capacity to conclude treaties unless they amountto the creation of a status as in the case of neutraliza-tion.

7. Limitations upon the contractual capacity of inter-national organizations. The present draft embodies,in article 1, the principle that international organiza-tions possess, in general, the capacity to concludetreaties. However, it must remain a matter forconsideration whether such capacity is inherent ininternational organizations without any limit or whe-ther its extent is determined by their purpose andconstitution. In the municipal sphere it is recognizedthat the contractual capacity at least of some corpora-tions is restricted. Thus in England a corporationcreated by or in pursuance of an Act of Parliament islimited in its contractual capacity by the language ofthe Act; a company incorporated under the CompaniesAct is bound by the terms of its constitution not toconclude contracts which are inconsistent with orforeign to its objects as formulated in the constitution.A contract made in disregard of that limitation isultra vires and, to that extent, void. In the interna-tional sphere it is doubtful whether the capacity of

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international organizations to conclude treaties isunlimited. Undoubtedly, such capacity is the conse-quence of their international personality. But thatpersonality is not coterminous, in kind and extent,with that of States. As the International Court ofJustice said in its advisory opinion on Reparation forInjuries suffered in the service of the United Nations:" Whereas a State possesses the totality of interna-tional rights and duties recognized by international law,the rights and duties of an entity such as the Orga-nization [the United Nations] must depend upon itspurposes and functions as specified or implied in itsconstituent documents and developed in practice"(I.C.J. Reports 1949, p. 180). For that reason theCourt, while holding that the United Nations is aninternational person and that it has the capacity toconclude agreements, added the following qualifyingstatement: " That is not the same things as saying thatit is a State, which it certainly is not, or that its legalpersonality and rights and duties are the same asthose of a State " (ibid., p. 179).

This applies, a fortiori, to international organiza-tions whose functions and purposes are less comprehen-sive than those of the United Nations. In some casesthe constitutions of international organizations express-ly indicate the fact of the limitation of their internatio-nal capacity. Thus the constitution of the Food andAgriculture Organization provides that " the Organi-zation shall have the capacity of a legal person toperform any legal act appropriate to its purposewhich is not beyond the powers granted to it by thisConstitution " (article 15 (1)). An identical wordingis adopted in the constitution of the World HealthOrganization (article 66). Similarly, the constitutionof the International Refugee Organization, approvedby the General Assembly at its first session in December1946, laid down that " the organization shall enjoy inthe territory of its members such legal capacity asmay be necessary for the exercise of its functions andthe fulfilment of its obligations " (article 13). Numer-ous other international organizations and organscontain similar provisions. On the other hand, theconstitutions of some other intexnational organizationsrecognize, without any limitation "the internalionalpersonality and legal capacity " of the Organization.89

However, probably no decisive importance need beattached to the fact that some constitutions expresslylimit their international personality and capacity soas to conform with their objects and purpose whileothers contain no provisions of that character.* Thegeneral language, cited above, used by the InternationalCourt of Justice in the reparation for injuries sufferedin the service of the United Nations case suggests thatsome such general limitation of capacity must beimplied in all international organizations. So far nocases seem to have arisen which throw direct light onthe subject so as to permit the formulation of clear andspecific rules. The Commission has deemed it suffi-cient to accommodate the principle involved within theframework of the comprehensive language of article 10as proposed.

8» See, for exemple article 8 (13) of the Agreement of 1946establishing the European Central Inland TransportOrganization.

Note

The Special Rapporteur has found it difficult todetermine to what extent the subject matter of thisarticle is of practical importance. With regard tosuch problems as the contractual capacity of protec-torates and neutralized States the practical significanceof the question involved tends to diminish. Withregard to the possible limitation of contractual capacityas the result of the assumption of the obligation not toconclude treaties of specified character the commentsuggests that this is not a case of restriction of thecapacity to conclude treaties in a way amounting tothe creation of a status but, rather, a case falling withinthe purview of article 16 relating to the validity oftreaties inconsistent with previous treaty obligations.The problem of the capacity of member States ofFederal States to conclude treaties raises matters ofsome complexity and the Special Rapporteur hasfound it necessary to examine that question at somelength. With regard to the limitations of the contrac-tual capacity of international organizations any detailedregulations must be left to the activity of judicialand other bodies within the framework of the generalprinciple laid down in article 10. Some such generalprinciple — giving expression to the legal consequencesof any disregard of limitations of status in the matterof contractual capacity — there must be. The state-ment, adopted in some previous drafts, that everyState has the capacity to conclude treaties, but thatthe capacity of some States to conclude treaties maybe limited, contains information of uncontroversialcharacter.

Article 11

Capacity of agentsConstitutional limitation upon the treaty-making power

1. A treaty is voidable, at the option of the partyconcerned, if it has been entered in disregard of thelimitations of its constitutional law and practice.

2. A contracting party may be deemed, accordingto the circumstances of the case, to have waived itsright to assert the invalidity of a treaty concludedin disregard of constitutional limitations if for a pro-longed period it has failed to invoke the invalidityof the treaty or if it has acted upon or obtained anadvantage from it.

3. In cases in which a treaty is held to be invalidon account of disregard of the constitutional limita-tions imposed by the law or practice of a contractingparty that party is responsible for any resulting damageto the other contracting party which cannot properlybe held to have been affected with knowledge of theconstitutional limitation in question.

4. A party cannot invoke the invalidity of a treatyon the ground that it has been entered into in disre-gard of the constitutional limitations of the othercontracting party.

5. A party asserting the invalidity of a treaty onaccount of any failure to comply with constitutionallimitations is bound, in case of disagreement, to submitthe substance of the dispute or the question of damageto the International Court of Justice or to any otherinternational tribunal agreed upon by the parties.


Comment

1. This article is intented to formulate the law on asubject of the law of treaties on which legal opinionhas been divided and with regard to which the judicialand governmental practice provides no clear answer.Only a small minority of writers now holds, withoutqualifications, the view that the limitations of theconstitutional law or practice upon the treaty makingpower are irrelevant and that a State which hasfinally assumed a treaty obligation is bound by itregardless of whether the constitutional limitationshave been observed. The reasons for that view havebeen repeatedly stated. They are grounded in somecases in the deductions drawn from the so-calleddualistic and monistic conceptions of the relation ofinternational to municipal law. These decuctions areinconclusive for it appears that authors starting fromopposite points of view in the matter arrive at practi-cally identical conclusions. Thus Anzilotti, adoptingthe typically dualistic approval held that municipallimitations of the treaty-making power are irrelevantfor the reason that international law imputes to theState the will to contract through the Head of theState (or a person delegated by him in accordance withthe constitutional law of the State the details ofwhich are of no concern to international law).90 Onthe other hand, Professor Scelle, starting from themonistic notion of the primacy of international law,considers the constitutional limitations irrelevant forthe reason that to hold otherwise would mean tosubordinate international law to the requirements ofmunicipal law (Precis de droit des gens, vol. II (1934),p. 455). This seems also to be the view of Kelsen.91

2. The two main reasons for the view which holdsconstitutional limitations to be irrelevant have been:

(a) The requirement of security of internationaltransactions which, it has been said, would be jeopar-dized if parties to treaties were to be unable to rely onthe ostensible authority of the organs acceptingbinding obligations on behalf of their State and ifthey were compelled to probe into the often uncertainand obscure provisions of consitutional law of theother contracting party or parties on the subject;

(b) The serious inconvenience to and the resultinginvidious position of a contracting party compelled

90 That view is stated in the following frequentlyquoted passage: «La conclusion a laquelle nous arrioonsest done que le droit international impute a I'jSiat la declara-tion de la volonte de stipuler faite en due forme par le chef del'£tat, sans prendre igard aux dispositions constitutionnellesqui, d'une facon quelconque, limitent sa competence ou luiimposent des devoirs. Nous disons « par le chef d'£tat »,nous referant ainsi au cas le plus important et le plus grave :ajoutons immidiatement toutefois que lorsque, en conformitiavec une pratique desormais Men etablie, des accords inter-nationaux sont conclus sans I'intervention des chefs desEtats contractants, noire conclusion vaut pour les declarationsde volonti des organes diiment autorisis a conduire les nego-tiations et a conclure I'accord. La question, qui est le droitconstitutionnel, de savoir si, dans ces cas, la competence desorganes doit se ramener a une delegation de competence duchef d'Etat et si cette delegation est valable, est denuee depertinence au regard du droit international » (Anzilotti,Cours de Droit International op. cit, vol. 1( 1929), pp. 366-367).

91 Recueil des Cows de l'Academie de droit internatio-nal, vol. 14 (1926), p. 270 ; H. Kelsen, Principles ofInternational Law (New York, 1952), p. 324.

to assume the function of an arbiter of controversialquestions of constitutional law of the other contractingparty and occasionally to question the authority of theorgan representing it.92

These considerations, which are of a weighty character,must be taken into account in formulating the prin-ciples governing the subject. For reasons which willbe stated presently they cannot be regarded as decisive.

3. On the other hand,- a substantial number— though, once more, not the majority — of writers 93

have adopted the view that a treaty concluded by theagents of the State, whether it be the Head of theState or its government or other persons delegatedfor the purpose, in disregard of constitutional limita-tions is invalid. The reasons underlying that pointof view is that international law leaves it to be munici-pal law of States to determine the scope of representativeauthority conferred upon its agents; that to the extentto which an agent acts outside the scope of his autho-rity he acts without any authority at all; that, inaccordance with the maxim qui cum alio contrahitnon est vel non debet esse ignarus conditionis ejus, acontracting party must be deemed to possess know-ledge of the fact and of the nature of the constitutionallimitations upon the treaty-making power of the agentsof the other contracting party; and that the notionthat a State may become bound by acts of personsacting outside the scope of their authority is unaccep-table as being totally out of harmony with modernconceptions of representative government and prin-ciples of democracy.

4. The approach to the subject which underlies theview adopted in the present article and which isbelieved to be supported by the bulk of practice is thatthe correct solution, both as a matter of good faith andsecurity of international transactions, must constitutea compromise between the opposing doctrines outlinedabove. The compromise consists in the recognitionof the fact that while constitutional limitations are,as a rule, decisive and while they must constitutethe starting point of any solution of the problem,importance must be attached to such factors as thenotoriery and clarity of the constitutional limitationsin question, the subsequent conduct of the partyattempting to avoid the treaty, and the duty to compen-sate any injury suffered by the innocent party. It is asolution based on some such considerations which must

92 These reasons were cogently stated by Sir GeraldFitzmaurice in an article contributed to the British YearBook of International Law, vol. 15 (1934), pp. 129-137.The learned author formulates the principle that " noState which has purported to become bound by an inter-national engagement, through the performance of allthat is necessary from the international point of view toachieve that object, ought to be permitted to deny thevalidity of its own action by pleading a failure to observeits own constitutional requirements " (p. 133). However,the question is: (a) whether it is really the State (and notits unauthorized agents) who has purported to be bound;and (b) whether ratification by an unauthorized agent isall that is necessary from the international point of view.

98 These include "W. Schoen in Zeitschrift fur Volkerrechtund Bundestaatsrecht, vol. 5 (1911), p. 400; Charles deVisscher in Bibliotheca Visseriana, vol. 2 (1924), p. 98;W. Schiicking in Annuaire de I'Institut Internationalde Droit Public, 1930, p. 225; P. Chailley, La nature juri-dique des traitis internationaux (Paris, 1923), pp. 175, 215.

Law of treaties 143

be considered as having secured the support of themajority of writers, including those who have examinedthe subject in recent years.91 Undoubtedly, the

" Thus the late Professor G. Hyde after stating that" it is reasonable and necessary for the domestic courts ofa country such as the United States to regard an unconsti-tutional treaty as void ", elaborated that proposition asfollows: " It may be said that where a contracting Stateholds out to another assurance that the terms of a propo-sed agreement are not violate of the fundamental lawsof the former, and does' so through an agent who issupposedly conversant with the requirements thereofby reason of the character of his connexion with the parti-cular department of his government to which is confidedthe management of foreign affairs, and when no writtenconstitution is involved, and no published and authorita-tive instrument notoriously proclaims an opposing view,there is ground for the conclusion that the contractingState holding out such assurance is not in a position todeny the validity of an agreement which has been conclu-ded in pursaunce thereof " (International Law, op. cit.,vol. 2, p. 1385). Sir Arnold McNair formulates as followsa rule governing a different aspect of the question: " Itseems safe to say that, in the view of the United KingdomGovernment, when an international engagement has beenpartly performed or otherwise treated by both parties asinternationally binding, it cannot validly be repudiatedby either of them on the ground that its conclusion failedto comply with some internal requirement of its constitu-tional or other law " (The Law of Treaties, op. cit., p. 44).Elsewhere Sir Arnold McNair qualifies the general conclu-sion as to the invalidity of the treaty in question by thefollowing statement: " It seems more reasonable to thelatter view and to say that in concluding a treaty if oneparty produces an instrument' complete and regular onthe face of i t ' (to borrow an expression from anotherdepartment of law) though in fact constitutionally defec-tive, the other party, if it is ignorant and reasonablyignorant of the defect, is entitled to assume that theinstrument is in order and to hold the former to theobligations of the treaty. If that view is correct then therepudiation of such a treaty constitutes an internationalwrong" (Introduction to E. Arnold, Treaty-MakingProcedure, op. cit., p. 6). In the Harvard Draft Conventionthe relevant article 21 embodies the elements of the mainqualifying considerations underlying the present article 10:" A State is not bound by a treaty made on its behalf byan organ or authority not competent under its law toconclude the treaty; however, a State may be responsiblefor an injury resulting to another State from reasonablereliance by the latter upon a representation that suchorgan or authority was competent to conclude thetreaty " (American Journal of International Law, vol. 29(1935), Supplement, Part III, p. 992). This, on the whole,seems also to correspond with the conclusions reached, in acareful study, by Paul de Visscher, De la conclusion destraitis internationaux (Bruxelles, 1943), p. 275. Similarly,Professor Verdross writes in the second edition of histreatise as follows: " Ein ratiflzierter Staatsvertrag ist aberdann anfechtbar, wenn die effektive Beschrankung der'treaty-making power' dem anderen Vertragspartner bekanntwar oder bei Anwendung der nb'tigen Sorgfalt hatte bekanntsein mussen. Er kann sich daher in einem solchen Fallenicht beklagen, wenn der Verlrag mangels der parlamenta-rischen Genehmigung nicht erfiillt werden kann. Hathingegen ein Staat bonafide einen Vertrag abgeschlossen,ohne die Beschr&nkung der Zustandigkeit der ' treaty-making power' des Partners zu kennen, dann ist dieserStaat schadenersatzpflichtig, wenn er die Verbindlichkeitdes Vertrages nicht nachtraglich anerkennt" (Volkerrecht2nd ed., 1950), p. 218). This is also essentially the posi-tion adopted by Professor Guggenheim in a meticulouslyqualified statement of the rule laying down the invalidityof a treaty adopted in disregard of constitutional limita-tions. He says: " Si I'autoriti executive conclut un traitede commerce, contrairement a une disposition claire et nonambigue" de son droit interne et prisumie connue de la partieadverse, forgone Ugislatif competent a le droit de I'annuler.Toutefois, I'Etat dont I'organe incompetent a conclu laconvention reste responsable des actes illicites consicutifs

fundemental rule of nullity of acts done in excess ofauthority as well as compelling claims of the democraticprinciple forbid the acceptance of the view that aState may become bound, in matters affecting itsvital interests and in others, by acts for which there isno warrant or authority in its own law. But theseconsiderations must not be allowed to enable govern-ments to conduct themselves in a manner prejudicialto the sanctity of treaties and violative of dictates ofgood faith; to derive benefits from a treaty and then,in reliance upon a controversial or obscure constitu-tional doctrine, to repudiate their obligations; and toassert the right to do so without compensating theother contracting party which relied, in good faith andwithout any fault of its own, on the ostensible authorityof the regular constitutional organs of the State inquestion. There are indications in international prac-tice, amply endorsed by writers, that these factorscannot be left out of account.

5. It is also probably for some such reasons that thepractice of Governments shows relatively few instancesof attempts to avoid a treaty by reference to allegeddisregard of constitutional limitations. In additionto isolated cases submitted to judicial or arbitraldetermination and referred to below, the following listapproximates, apart from some minor historical in-stances,96 to completeness: the repudiation by France,in 1832, of a convention concluded in the previousyear with the United States of America for the paymentof compensation in respect of the spoliation of theproperty of American citizens during the revolutionarywar — a repudiation justified on the ground of absenceof legislative approval; the protest, in 1835, by theUnited States against a commercial agreement conclu-ded between Peru and Chile; the controversies, in 1861,between Ecuador and Peru and in 1888 between CostaRica and Ecuador;96 the attempted repudiation by theTransvaal Republic of an arbitral award, renderedin 1871 in the Western Griqualand Diamond DepositCase, on the ground that the arbitration agreement hadbeen concluded in disregard of the requirements of theconstitution; the apparent reliance by China, indenying the validity of her treaties concluded withJapan in 1915, on the fact that the President had actedin excess of his constitutional authority; the attitudeadopted in 1920 by the Romanian Government, withrespect to a commercial treaty concluded with Austria— which treaty, it was alleged, had not secured parlia-mentary approval; the doubts raised by Argentinabetween 1920 and 1933 with respect to the validity ofher adherence to the League of Nations; the questionof the validity of adherence of Luxembourg to the

commis dans le cadre de I'exicution du traiti, malgreVinvocation de sa nulliU " (Recueil des Cows de l'Academiede droit international, vol. 74 (1949), p. 236). MervynJones' conclusions are to the same effect: Full Powersand Ratification (Cambridge, 1946), p. 155.

95 Professor Balladore Pallieri refers — in Recueil desCours de VAcadimie de droit international, vol. 74 (1949),p. 472 — to King Francois I contesting the validity ofa treaty concluded by him on the ground that it had notsecured the approval of the Parliament of Paris.

96 The details as to the three last mentioned disputesare recounted by Mervyn Jones in Full Powers andRatifications, op. cit., pp. 137-141.


League of Nations;97 the repudiation, in 1932, by theIrish Free State of agreements concluded with GreatBritain with respect to the payment of certain landannuities on the ground that they had not been approvedby the Dail as required by the constitution;98 andthe request made by Switzerland in 1929 to withdrawher adherence to a resolution of the WashingtonConference on the Limitation of Armaments obligingthe parties to furnish to each other lists of treaties andagreements made with or concerning China. Therequest, which did not amount to an attempt atunilateral repudiation, was made on the ground ofsubsequent discovery that the Swiss adherence wasillegal and erroneous for the reason of the failure tocomply with the requirements of the Swiss Constitu-tion.89 It is significant that when in 1926 Switzerlandanswered the questionnaire formulated on the subjectby the Committee of Experts for the Progressive Codi-fication of International Law she adopted the view that,having regard to security of international intercourse,treaties ratified by the executive organs of a State arebinding upon it.

6. The practice of international tribunals on thesubject is even more conspicuous for its scarcity. Thearbitral award of President Cleveland, given in 1888in a dispute between Costa Rica and Nicaragua, adoptedwith important qualifications as to the burden ofproof and as to subsequent acquiescence by conduct,the principle that the disregard of constitutionallimitations entails the invalidity of the treaty (Moore,International Arbitrations, vol. 2, p. 1946). On the otherhand, in the Franco-Swiss arbitration of 1912 an arbitraltribunal declined to attach importance to the fact thatthe tariff regulations to be fixed in accordance withthe commercial agreement with Switzerland had notbeen confirmed by the French legislature. In theview of the Tribunal, that circumstance was " a matterpertaining to internal law ".10° In the award givenin 1923 in the arbitration between Great Britain andSpain, Judge Huber declined to enter into questions ofMoroccan constitutional law which, it was maintained,required a Sheriffian decree confirming an exchangeof letters relied upon by Great Britain. However, heattached importance to the fact that subsequentlyboth parties relied on the exchange of letters in ques-

07 An incident discussed in detail by Paul de Visscher,De la conclusion des traitis internationaux, op. cit, pp. 165-170.

88 For details of these incidents see Sir Arnold McNair'sintroduction to Arnold, Treaty-Making Procedure, op. cit.,pp. 3-13, and the comment to article 22 of the HarvardDraft Convention, pp. 1002-1005. The attempted repu-diation, on constitutional grounds, by the Persian Govern-ment, in 1932 and 1952, of the oil concessions agreementwith the Anglo-Iranian Oil Company was directed to anagreement which that Government considered to be aprivate contract as distinguished from a treaty.

89 For details see Hackworth, Digest of InternationalLaw, vol. 5 (1943), p. 83. Actually Switzerland compliedwith the resolution which, however, she then declaredto have remained a " dead letter " for the reason thatthe other Parties had supplied no such information toSwitzerland.

100 Sir Arnold McNair, op. cit., p. 8, points out thatFrance did not in this case maintain that the treaty wasinvalid on account of the absence of constitutionalapproval. She merely insisted that the latter circum-stance pointed to an interpretation of the treaty differentfrom that by Switzerland.

tion.101 The judgement of the Permanent Court ofInternational Justice in the case of Eastern Greenland(Publications of the P.C.I.J., Series AjB, No. 53, p. 71)has been occasionally interpreted as having been basedon the same principle. Actually the Court held thatthe declaration made by the Foreign Minister, whichthe Court — in the circumstances of the case — con-sidered binding upon Norway, had been given by him" in regard to a question falling within his province ".A statement made by the Permanent Court of Inter-nationa] Justice in the case of the Free Zones of UpperSavoy and the District of Gex (ibid., No. 46, p. 170) asto the binding force of a declaration made by theSwiss agent in the course of the oral proceedings beforethe Court — a declaration which was questioned byFrance on the ground that it was made in disregardof the requirements of Swiss constitutional law — isprobably not germane to the issue here discussed.102

7. The paucity and the inconclusiveness of thejudicial and artibral pronouncements on the subjectmake it difficult to deduce from them any rule ofinternational law which is calculated to provide apractical solution of the problem involved. Thepresent article attempts a solution of that nature.Although the importance of the question may be morelimited than the abundance of doctrinal discussionsuggests, its detailed regulation, through codification,is desirable. Such regulation cannot be limited to thestatement, such as formulated in paragraph 1 ofarticle 11, to the effect that constitutional limitationsare decisive and that a State can undertake bindingobligations only through competent agents acting inaccordance with its constitutional law and practice.Paragraphs 2 and 3 of article 11 are intended to providethe qualifications necessary to render the major rulejust and reasonable. They take into account, inparagraph 2, the possibility that the State invokingthe nullity of the treaty on account of the disregard ofconstitutional limitations may have tacitly acceptedit by acting upon it or by deriving benefits from it.A State cannot be allowed to avail itself of the advan-tages of the treaty when it suits it to do so and repudiateit when its performance becomes onerous. It is oflittle consequence whether that rule is based on whatin English law is known as the principle of estoppel orthe more generally conceived requirement of goodfaith. The former is probably no more than one of theaspects of the latter. For the same reason paragraph 2admits of a variety of qualifications which it is notnecessary to specify in detail but which are requiredby a reasonable application of the principle rule.Thus, for instance, the fact that a State has for a longtime adopted and acted upon a treaty concluded indisregard of constitutional limitations is not of decisiveimportance, if owing to the continuance in power of anunconstitutional government which concluded thetreaty, there has been no way in which the constitu-tional will of the nation could have expressed itself andrepudiated the treaty. The repudiation is improper

101 Annual Digest, 1923-1924, Case No. 20.102 No reference is here made to the award given in 1923

by President Taft in the Arbitration between GreatBritain and Costa Rica concerning the validity of conces-sions granted to a private company in disregard of theprovisions of the Constitution of Costa Rica: AmericanJournal of International Law, vol. 18 (1924), pp. 147-174.

Law of treaties 145

only if the treaty has been acted upon during theregime of the repudiating government or of the regimeidentical with it. Similarly, there is no more than anapplication of the principle of good faith in the provi-sion of paragraph 3 which makes the right to compensa-tion, on account of the avoidance of a treaty concludedin violation of constitutional limitations, dependenton the fact of knowledge of these limitations on thepart of the State, which has taken a reasonable degreeof care to ascertain these limitations, claiming compen-sation. On the other hand, obvious considerations ofjuridical logic require that such knowledge is relevantonly to the question of damages, but not that of thevalidity of the treaty. The fact of the absence ofconstitutional authority cannot be remedied by excu-sable ignorance of the limitations in question.103

8. It may be noted that the above article 11 appliesto the constitutional limitations of the treaty-makingpower proper. It does not apply to situations inwhich a State has finally accepted a treaty by ratifica-tion or otherwise in conformity with its constitutionallaw and practice but in which, owing to its constitu-tion, it finds itself unable to give effect to the treatywithout further municipal legislation. The governmentof a Federal State may have validly ratified a treaty inaccordance with its constitution and yet it may findthat owing to the reserved powers of the memberStates it cannot implement the treaty by its ownfederal legislation. Thus in the case of Attorney-General for Canada v. Attorney-General for Ontariodecided in 1937 by the Judicial Committee of thePrivy Council for the British Empire on appeal fromthe Supreme Court of Canada it was held that theParliament of Canada had no power to enact legislationto give effect to various international labour conven-tions validly concluded by Canada (United Kingdom,Appeals Cases (1937) 326; Annual Digest, 1935-1937,Case No. 17). In such cases a State cannot plead anyinternational invalidity of the treaty. If the latterwas concluded in good faith and in the belief, notunreasonably held, of the power of the contractingparty in question to give effect to the treaty, thenprobably the only proper course resulting from in-ability to implement it would be a request, to beaddressed to the other contracting parties and whichought not to be refused, to be allowed to with-draw from the treaty regardless of any time limits laiddown therein — although in cases where the State inquestion has derived benefits from the treaty at theexpense of the other contracting party or parties theremust be assumed to exist an equitable duty of compen-sation. In matters of this description and of obviousconstitutional complexity the State ratifying the treatymay fairly be deemed to have acted in good faith evenif ultimately its highest tribunals find that the consti-tution prevents it from implementing the treaty bylegislation. Thus about the same time when theBritish Judicial Committee of the Privy Council, in thecase referred to above, found that no legislative effectcould be given to the treaty by way of federal legisla-

tion, a different conclusion — on a similar subject —was reached by the High Court of Australia in respectof federal legislation to implement the Air NavigationConvention of 1919 ([1936] 55 Commonwealth LawReports, 608). In the well-know case of Missouri v.Holland the Supreme Court of the United Statesdecided that the United States was competent by wayof federal legislation to give effect to the MigratoryBirds Treaty concluded with Canada in a matter nor-mally falling within the province of the States ([1920]252 U.S. 416). But it is equally well known that thatdecision, which has given rise to controversy, couldnot have been predicted in advance with any certainty.

9. On the other hand it is clear that the mere factthat a Government has failed to take the necessarysteps to enact legislation necessary to implement atreaty — or because of reasons other than the provi-sions of its constitution has been unable to secure suchlegislation — is not a sufficient ground for absolvingit from the obligations of the treaty. (That principlewas explicitly affirmed by the Permanent Court ofInternational Justice in its advisory opinion concerningthe Jurisdiction of the Courts of Danzig (Publicationsof the P.C.I.J., Series B, No. 15, p. 262) where theCourt held that the failure to enact the requisite legis-lation in itself amounted to a non-fulfilment of aninternational obligation and that it could not thereforebe relied upon by Poland.101 For this reason it seemsdesirable that a State should not finally become a partyto a treaty unless it has assured itself that it will be inthe position to take the necessary legislative measures.Thus, for instance, in the United Kingdom, while theconclusion and ratification of treaties is, as a rule,within the unfettered province of the Executive, courtswill not enforce treaties affecting private rights unlessthe relevant provisions of the treaty have been madepart of the law of the land through an enabling actof Parliament. Cases have occurred in which, as theresult of the operation of that rule, courts have declinedto give effect to treaties validly concluded by theexecutive and fully operative in the internationalsphere.105 In such cases there is no question of theState being entitled to avoid a treaty as the result ofnon-compliance with constitutional limitations. Onthe contrary, in situations of this nature the State isinternationally responsible for the non-fulfilment of itstreaty obligation. The resulting unsatisfactory posi-tion can be avoided by the adoption of a rule — whoseacceptance would amount to a change in the constitu-tional practice — requiring the passage of the necessaryenabling legislation as a condition of the ratificationof the treaty. There are indications of the gradual

M» It might appear that the same reasoning applies toparagraph 2. Actually that paragraph is based on theprinciple that the element of true consent is supplied bysubsequent conduct expressive of the will of the State andthus remedying the original absence of constitutionalauthority.

104 In the advisory opinion concerning the Treatmentof Polish Nationals in Danzig Territory the Court heldthat a State cannot adduce as against another State theprovisions of its own constitution in order to evade obliga-tions incumbent upon it under international law ortreaties in force (Publications of the P.G.I.J., Series AjBtNo. 44, p. 24). However, this does not apply to theprovisions of the constitution relating to the treaty-making power and enacted prior to the ratification of thetreaty in question.

106 See, for example, Administrator of German Property v.Knoop [1933] Ch. 439; Republic of Italy v. Hambros Bank[1950] 1 All. E.R. 430. As to Canada see to the sameeffect: Re Arrow River Tributaries Slide and Boom Co.,Annual Digest, 1931-1932, Case No. 2.


evolution of some such practice.106 When that practiceis established, it will amount to a constitutionallysanctioned procedure which must be presumed to bewithin the knowledge of the other contracting partiesand whose disregard will be internationally relevantin the same way as the corresponding provisions ofwritten constitutions. Thus it is clear that thereis a definite constitutional limitation of the treaty-making power in article 27 of the French Constitutionof 1946 requiring legislative approval of enumeratedcategories of treaties as a condition of the final ratifica-tion by the executive. The same result may be achievedby the insertion of a clause, such as in the Agreementof 5 June 1946 between the United Kingdom andCanada concerning double taxation, which providesthat it shall enter into force " on the date on whichthe last of all such things has been done in the UnitedKingdom and Canada as are necessary to give theAgreement the force of law in the United Kingdom andCanada respectively " (United Nations, Treaty Series,vol. 86, p. 14).

10. The question of nullity or voidability of treatiesconcluded in disregard of constitutional limitations hasbeen discussed in the past from the point of view ofbilateral treaties. It is only on that assumption thatit is possible to subscribe to a rule, as formulated inthe present article 11, that " a treaty is voidable, atthe option of the party concerned, if it has been enteredin disregard of the limitations of its constitutionallaw and practice ". However, it is clear that thatphraseology cannot apply to multilateral treaties. Amultilateral treaty as such is not voidable — or void —because one or more parties thereto have accepted itsobligations in violation of their constitutional law

106 In introducing in 1952 the Visiting Force Billintended to provide for changes in English law renderednecessary by the agreement entered into between theNorth Atlantic Treaty Powers relating to the status oftheir forces in the territory of another North AtlanticTreaty Power the Home Secretary Stated as follows:" Until our law is modified in these respects this countrycannot ratify the agreement " (Weekly Hansard, No. 231,1952, col. 565). However, on 11 March 1953, in answerto a question in Parliament, the British Governmentstated that " strictly speaking Her Majesty's Governmentnever have to obtain Parliamentary consent before makingor ratifying a treaty " but that in practice ratification isexpressly provided for in the treaty and Parliamentaryapproval sought in advance of ratification in two typesof cases: (a) " The first is where we should not, in fact,be able to implement the Treaty without legislation. Itis then necessary to ask Parliament for the legislation,and since Her Majesty's Government cannot be certainthat Parliament will grant it, it is necessary that theTreaty should be subject to ratification, and that weShould get the legislation passed between the time whenwe signed the Treaty and the time when we propose toratify i t ." (b) "The other case is that in which thepolitical importance of a Treaty is so great that HerMajesty's Governmen t feel obliged, as a political necessity,but not as a legal nee essity, to consult Parliament aboutit before becoming co mmitted. Here again, it would becustomary to make the coming into force of the Treatydependent upon ratification and to stage a debate aboutit in Parliament at some point after signature, so that,if Parliament clearly disapproved, it would still be opento Her Majesty's Government not to ratify theAgreement." (180 House of Lords Deb., col. 1284).This phenomenon of a growing constitutional practicewhich has not crystallized into a binding convention ofthe constitution in itself provides an illustration of thecomplexity of the problem of constitutional limitations.

or practice. The treaty remains in force as betweenthe other contracting parties (unless — a somewhatfar-fetched possibility — so many parties to the treatyhave concluded it in violation of their constitutionthat the number of the remaining parties has fallenbelow that required by the treaty for its entry intoforce.10') In view of this it must be a matter for con-sideration whether the language of the article as atpresent formulated ought not to be changed in orderto cover the case of multilateral treaties. That objectcould be achieved by the use of some such language as" the acceptance of a treaty is voidable " (instead of" a treaty is voidable ") or " a treaty is voidable, atthe option of and in relation to the party concerned ".Similar changes would have to be introduced in otherparagraphs of this article. (The same question arisesin relation to the other articles of part III of the presentdraft in which, for one reason or other, the treaty isdeemed to be void or voidable.)

11. However, in relation to multilateral treaties thequestion is more than of phraseology. When twoStates negotiate and conclude a treaty it is reasonableto assume, in the first instance, that the parties mustbe presumed to possess knowledge of the constitutionallaw and practice of each other. This is not the positionin the case of a multilateral treaty where the numberof signatories is considerable and where, moreover,parties may sign or accede subsequent to the establish-ment of the text of the treaty. In the latter case theparties are hardly in the position to raise the questionof any constitutional limitations upon the action of theState acceding to the treaty. While the problemsarising in this connexion cannot properly form thesubject matter of a legal provision in a Code of theLaw of Treaties it may be proper to consider to whatextent the difficulty can be met by the establishmentof some permanent advisory international machinery,available to international conferences and to Govern-ments generally, for assisting them — and, in appro-priate cases, the depositary authority — in resolvingwhat must often be a complex problem requiring anintimate knowledge of the constitutional law and prac-tice of many States. The consideration of some suchmachinery has been suggested above in connexion witharticle 4 (note 2).

Note

1. The length of the preceding comment is partlyexplained by the fact that the statement of the lawin article 11 departs from the view adopted by theCommission in article 4 as tentatively formulated by it.Apparently the Commission regarded treaties concludedin disregard of constitutional limitations as beinginvalid tout court. The comment of the Commissionon that article states that the view adopted therein isheld by the majority of writers. This, in the opinionof the Rapporteur, is not the case.108 The article as

107 or —which is, once more, a somewhat strainedpossibility — that as the result of the failure of participa-tion of some States other contracting parties are justifi-ably of the opinion that the treaty has failed in its objectand is no longer binding upon the others.

108 On the other hand, that comment assumes that thejudgement of the Permanent Court of InternationalJustice in the case of Eastern Greenland lends " a measureof support" to the opposite view. As pointed out, in thecomment to article 11 above, this interpretation of thejudgement of the Court is open to doubt.

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provisionally adopted by the Commission has theapparent merit of clarity and precision. It would be,to some extent, acceptable if constitutional limitationsof the treaty-making power in various countries wereprecise, well known, and easily ascertainable. However,the contrary is the case. In view of this any solutionwhich treats, without any qualifications, non-obser-vance of constitutional limitations as the decisive andthe only factor may result in introducing into the fieldof the law of treaties an element of arbitrariness andabuse. This might also be the result of a rule whichwould make it possible for Governments to avoid theirtreaties, on the ground of unconstitutionality, regardlessof their conduct prior and subsequent to their conclu-sion. There may be a measure of deceptiveness in themere simplicity of a rule designed to regulate a problemof intrinsic complexity.109 The merits of an otherwisesound principle may be impaired by the failure toconsider situations in which its unqualified applicationis manifestly unreasonable or productive of injustice.

2. The following consideration of a general characterought, it is believed, to be borne in mind in any attemptto codify this aspect of the law of treaties. On thewhole, the appeal, on the part of Governments, to thealleged invalidity of treaties on account of non-compliance with constitutional limitations has notconstituted a frequent feature of international practice.It is possible that an explicit and authoritative recogni-tion in an international code of a right to avoid a treatyon that ground may encourage allegations of invalidityof treaties in a manner inconsistent with good faith,with the stability of international relations and theobservance of treaty obligations. The danger of thatpossibility materializing will be substantially reduced,if not removed altogether, by the provision — inaddition to the safeguards provided in the precedingparagraphs — of paragraph 5 which makes the legaleffectiveness of any such allegation dependent, in caseof disagreement, upon the finding of a judicial or arbi-tral tribunal. Provision for and recognition of thecompulsory jurisdiction of an international tribunalmust in this case — as indeed in other cases of allega-tion of the nullity of a treaty — constitute an integralpart of any rule of international law on the subject.

Section IIReality of Consent

Article 12Absence of compulsion

Treaties imposed by or as the result of the use offorce or threats of force against a State in violation

10 • An example of that complexity is provided by theotherwise illuminating treatment by Balladore Pallieri.He states that « les constitutions internes sont devenuestoujours plus compliquies, la extermination de I'organecompitent donne naissance a des questions toujours plussubfiles ; a un certain moment, il n'y a presque plus detraiti dont la validiti ne soil couteuse a cause de I'incompe'-tence de I'organe » : (Recueil des Cours de l'Academie dedroit international, vol. 74 (1949), p. 475). On the follow-ing pages he says in a manner not easily reconcilablewith the statement as quoted: « // se peut qu'un Etat nese donne pas la peine de se renseigner sur I'organisationconstitutionelle d'autrui, mais il le fait a ses risques etperils. Les constitutions sont des actes assez noloires, etsur lesquels il n'est pas difficile de se renseigner. »

of the principles of the Charter of the United Nationsare invalid if so declared by the International Courtof Justice at the request of any State.

CommentA. In general

1. The object of this article is to declare the validity,in the sphere of international law, of a general principleof law which found no place in the society of Statesprior to the renunciation and prohibition of the useof force in general international agreements, such asthe General Treaty for the Renunciation of War, theCovenant of the League of Nations and the Charterof the United Nations. The reason why traditionalinternational law disregarded the use of force or ofthreats of force as a factor vitiating the validity oftreaties has been repeatedly stated. In the past,international law permitted recourse to war not onlyas a means of enforcing rights recognized by interna-tional law, but also for the purpose of challenging anddestroying the existing legal rights of States. If warwas permitted as an institution, it followed that thelaw was bound to recognize the results of successfuluse of force thus used. To this explanation, unimpea-chable in logic, of the legal position there was addedthe cogent consideration that the adoption of a differentrule would have removed the legal basis of all treatiesimposed by the victor upon the defeated State and thusperpetuated indefinitely a state of war. While thepersuasive power of these considerations could not bedenied, it was clear that the disregard of the vitiatingforce of duress in the conclusion of treaties tended toconstitute, in a real sense, a denial of the legal natureof treaties conceived as agreements based on the freewill of the contracting parties. Consensual transac-tions in which the true consensus of the parties, emanat-ing from their free will, is irrelevant are an anomaly.Any rule which sanctions that anomaly is, like theadmissibility of war as such, expressive of a fundamen-tal defect in the structure of international law.

2. The cumulative result of the developments sincethe first World War has been to remove the founda-tions of the traditional rule of international lawwhich recognized the validity of treaties imposed byforce. These developments consist, in the limitationand, subsequently, in the renunciation and prohibitionof war, and, more generally, of force or of threats offorce. Although the Covenant of the League of Nationsdid not abolish the right of war, it prohibited recourseto it prior to the exhaustion of means of pacific settle-ment prescribed by it. To that extent it renderedunlawful any recourse to war in violation of the obliga-tions of the Covenant and authorized and prescribedsanctions against the offending State. It was generallyassumed that as the result of these provisions of theCovenant the status of war in international law hadundergone a fundamental change. In the GeneralTreaty for the Renunciation of War of 27 August 1928(Pact of Paris) the Parties renounced recourse to waras an instrument of national policy in their relationswith one another. The legal effect of that Treaty wasthat war could no longer be resorted to either as alegal remedy or as an instrument for changing the law.It has been stated that " being permanent in its natureand purpose and representing a fundamental change


in the legal structure of international society, the Pactof Paris must be regarded as continuing in being andas one of the cornerstones of the international legalsystem " and that " this is so although it has not beenexpressly incorporated in the Charter of the UnitedNations" (Oppenheim, International Law, vol. II(7th ed., 1952), London, p. 197). The Charter of theUnited Nations provides, in paragraph 4 of Article 2,that " all Members shall refrain in their internationalrelations from the threat or use of force against theterritorial integrity or political independence of anystate, or in any other manner inconsistent with thepurposes of the United Nations ". The same Articlelays down, in paragraph 6, that the United Nationsshall ensure that States which are not members of theUnited Nations act in accordance with the Principlesof the Charter in so far as may be necessary for themaintenance of international peace and security. TheInter-American Treaty of Reciprocal Assistance signedat Rio de Janeiro on 2 September 1947 combined theprovisions of the Pact of Paris and of the Charter of theUnited Nations. Article 1 of that Treaty laid downthat the " High Contracting Parties formally condemnwar and undertake in their international relations notto resort to the threat or the use of force in any mannerinconsistent with the provisions of the Charter of theUnited Nations or of this Treaty." The cumulativeresult of these international enactments of a generalcharacter — of the Covenant of the League, the GeneralTreaty for the Renunciation of War, and the Charterof the United Nations — has been to effect a change inthe law, in the matter of the legal position of war, notonly between the parties thereto, but in the interna-tional community as such. The prohibition of war,and of force generally, to the extent laid down bythese instruments, must now be regarded as indepen-dent of these instruments and as having acquired thecomplexion of a general rule of international lawbinding upon States in the same way as rules of custo-mary international law. That general rule prohibitsaggressive war, i.e., a war undertaken as an instrumentof national policy in violation or in disregard of theprinciples of the basic instruments referred to above.In the judgement of the International Military Tribu-nal of Nurnberg, whose principles have been affirmedby the General Assembly of the United Nations,aggressive war was declared to constitute an act bothillegal and criminal.

3. It follows that a treaty imposed by or as theresult of force or threats of force resorted to in violationof the principles of these instruments of a fundamentalcharacter is invalid by virtue of the operation of thegeneral principle of law which postulates freedom ofconsent as an essential condition of the validity ofconsensual undertakings. The reasons which in thepast rendered that principle inoperative in the interna-tional sphere have now disappeared. Moreover, in sofar as war or force or threats of force constitute aninternationally illegal act, the results of that illegality— namely, a treaty imposed in connexion with or inconsequence thereof — are governed by the principlethat an illegal act cannot produce legal rights for thebenefit of the law-breaker. That principle — exinjuria jus non oritur — recognized by the doctrine ofinternational law and by international tribunals,

including the highest international tribunal,110 is initself a general principle of law.

4. The consequences of that principle have, inturn, found expression in the various declarations ofpolicy or in declarations or the assumption of theobligation not to recognize treaties, or situations, oracquisitions of territory resulting from unlawful use offorce in violation of former undertakings. Thus,in the well-known pronouncement of Mr. Stimson, theUnited States Secretary of State, it was declared on7 January 1932 that the United States " cannot admitthe legality of any situation de facto nor does it intendto recognize any treaty or agreement entered intobetween those Governments, or agents thereof, whichmay impair the treaty rights of the United States orits citizens in China . . . ; and that it does not intend torecognize any situation, treaty, or agreement whichmay be brought about by means contrary to thecovenants and obligations of the Pact of Paris ofAugust 27, 1928, to which treaty both China andJapan, as well as the United States, are parties "(United States, Foreign Relations, Japan, 1931-1941,vol. I, p. 76). While the above declaration was in thenature of a declaration of a voluntarily assumed policy— of intention — of non-recognition, the resolutionadopted by the Assembly of the League of Nations on11 March 1932 gave expression to the principle of non-recognition as implying a legal obligation. It statedthat " it is incumbent upon the Members of the Leagueof Nations not to recognize any situation, treaty, oragreement which may be brought about by meanscontrary to the Covenant of the League of Nations orto the Pact of Paris ". Formal pronouncements ofAmerican States have given frequent expression tothe obligation of non-recognition as distinguished froma policy of non-recognition. Thus the Lima Declarationof 22 December 1938 on Non-Recognition of theAcquisition of Territory by Force reiterated " as afundamental principle of the Public Law of America "that such acquisitions shall not be valid or have legaleffect " and that the pledge of non-recognition ofsituations arising from the foregoing conditions is anobligation which cannot be avoided either unilaterallyor collectively ". In the draft Declaration of Rightsand Duties of States prepared by the InternationalLaw Commission in 1949 it was laid down, in article 11,that " every State has the duty to refrain from recogni-zing any territorial acquisition by another State actingin violation " of the obligation to refrain from resortingto war as an instrument of national policy and to refrainfrom the threat or use force.111 Upon analysis, non-

110 See, for example the AdvisoryJOpinion in the matter ofthe Jurisdiction of the Courts of Danzig (Publications of theP.G.I.J., Series B, No. 15, pp. 26, 27); the judgement inthe case concerning the Factory at Chorzow (ibid., Series A,No. 9, p. 31); the judgement in the case of Eastern Green-land (ibid., Series A/B, No. 48, p. 285 and No. 53, p. 75— where the Court held that the Norwegian declarationof occupation and other measures taken by Norway inthat connexion constituted a violation of the existinglegal situation and were accordingly « illegales et nonvalables »(unlawful and invalid)); the order in the case ofthe Free Zones (ibid., Series A, No. 24 — where the Courtstated that France could not invoke against Switzerlandany changes resulting from the illegal transfer of theFrench customs line).

111 See Yearbook of the International Law Commission,1949, p. 288.

Law of treaties 149

recognition of treaties, including treaties providingfor transfer of territory, imposed by unlawful exerciseof force means that in the view of the States refusingrecognition the treaty is invalid. While expressrecognition, in the field of treaties and elsewhere, is not-essential as a condition of the valid creation of rights,express refusal to recognize them amounts to and isintended as a denial of their validity. It follows that,apart from the general considerations based on theprinciple which denies legal effect, for the benefit ofthe law-breaker, to unlawful acts, the nullity of treatiesimposed by unlawful exercise of force must now bedeemed to result, in addition to other factors, from thepractice, in many cases acknowledged as an obligation,of non-recognition.

5. These factors, pointing to the invalidity of treatiesimposed in connexion with or as a result of unlawful«xercise of force, may now be'summarized. They are (a)the general principle of law avoiding consensual trans-actions brought about by duress; (b) the obsolescenceof the rule of international law permitting resort toor threats of war or force as a means of redress or ofaltering rights recognized by international law; (c) thegeneral principle of law denying any law creating effect,in favour of the law-breaker, to acts which the lawstigmatizes as illegal; (d) the practice and the principleof non-recognition. Having regard to the operationof these factors, the express formulation by the Commis-sion of the rule as laid down in article 12 must bedeemed to represent a codification, in this respect, ofthe existing law. That existing law is no longer whatit was prior to the first World War.

6. It is arguable — and there is some apparentcogency in the argument — that the practical impor-tance of formally sanctioning the invalidity of treatiesimposed by force may be inconsiderable. For, it maybe said, if international society organized in the UnitedNations is unable to prevent unlawful recourse toforce, it may not be the in position to assert, againstthe victorious aggressor, the principle sanctioning theinvalidity of treaties imposed by force. Moreover, it isarguable that as soon as changed conditions of powerpermit to challenge the efficacy of treaties imposed byforce such change can be effected by a political decisionsupported by public opinion of the world rather thanby reliance on a principle of law. However, the forceof these and similar arguments is more apparent thanreal. A general international organization such as theUnited Nations may not, on account of the operationof the rule of unanimity or for other reasons, be in aposition to prevent aggression, or threats of aggression,and treaties imposed in consequence thereof. However,that circumstance need not necessarily signify thetotal breakdown either of the international organiza-tion or of the rule of law. On the contrary, the pros-pect that the advantages gained by an imposed treatymay prove illusory, in addition to other reasons,because of the invalidity of the settlement thus imposed— an invalidity to be formally (affirmed by interna-tional tribunals, by third States and, when conditionspermit, by the victim of violence himself — may initself act as a brake upon designs of unlawful use offorce. However that may be, it seems imperative thata codification of the law of treaties under the auspicesof the United Nations should elevate to the dignity

of a clear rule of international law a general principleof law recognized by all civilized States, namely, thatfreedom of consent — i.e., absence of constraint exer-cised otherwise than by law — is an essential conditionof the validity of treaties conceived as contractualagreements. In fact, there is room for the view that ifthe codification of the law of treaties were to achieveno other result than to declare formally the eliminationfrom the boly of international law the traditional rulewhich disregarded the vitiating effect of duress, a rulewhich is offensive to accepted notions of law and mora-lity and which is therefore a serious reflection uponthe authority of international law — such codificationwould be desirable for the sake of some such article.At the same time it is of importance to ensure that theprinciple thus formally incorporated should not beinvoked — and abused in a manner inconsistent withthe authority and the effectiveness of treaties. Asintimated in the comment which follows, the presentarticle 12 has been formulated with this object in view.

B.7. Treaties imposed as the result of the use of force or

threats of force — (a) The formulation here adoptedfollows the language of the Charter of the UnitedNations. It refers to treaties imposed not as the resultof war but as the result of the use of force and threatsof force. The latter clearly include war. The merit ofthe formulation adopted in the Charter is that itobviates the doubts, which gave rise to some uncer-tainty under the Covenant and the Pact of Paris, asto whether in a particular case the use of force amountsto war in the technical sense of the term. Under theCharter and the article as here formulated that distinc-tion is devoid of relevance, (b) The expression " byor as the result of the use of force or threats of force "is intended to express the principle that coercion,however indirect, if resulting from unlawful recourseto force or threats of force invalidates a treaty. Thismeans that a treaty is invalid if a State, as the resultof unlawful use of force, has been reduced to such adegree of impotence as to be unable to resist the pres-sure to become a party to a treaty although at thetime of signature no obvious attempt is made toimpose upon it by force the treaty in question. Theformulation here adopted covers also the situation inwhich the victor has established within the defeatedState a subservient government which signs the treatywithout a show of protest, (c) The article refers tophysical force or threats of physical force as distin-guished from coercion not amounting to physical force.However, in the case of a State the borderline betweenthese two kinds of coercion is not rigid. In fact itwould appear that direct physical force can be appliedonly to persons, but not to the collective entity of theState. On the other hand, in cases such as attemptsor threats to starve a State into submission by cuttingoff its imports or its access to the sea, although nophysical force is used directly against persons it maybe difficult to deny that the treaty must be deemed tohave been concluded as the result of the use of force orthreats of force. Neither would it appear to be essentialthat compulsion thus directly applied against a Stateshould be the result of a war or of other use of directphysical force. The inevitably indefinite character ofthis cause of invalidity of treaties renders it particularly


necessary to make its operation dependent uponimpartial determination as provided in this article.

8. Upon States — The present article is concernedonly with the coercion of States in their collectivecapacity. It is not concerned with physical force orthreats thereof against the organs of the State inconnexion with the conclusion of a treaty. Force orthreats of force of that character, of which text-booksadduce a number of examples,118 eliminate altogetherthe element of freedom of consent which is essentialfor the validity of a contractual undertaking. Therehas been general agreement, even under traditionalinternational law, that a treaty concluded or an under-taking given in such circumstances was without legaleffect.

9. In violation of the principles of the Charter of theUnited Nations — Force ceases to have the characterof mere coercion if it is exercised in execution of thelaw — as a legal sanction — or in accordance with thelaw. Although in such cases the element of consenton the part of the State concerned is lacking, the imper-sonal authority of the law on behalf of which — and inaccordance with which — force is employed is properlydeemed to supply, or to remedy, the absent element ofconsent. For this reason a treaty or any other under-taking imposed by the United Nations, in the courseof its enforcement action, upon a State held to beguilty, in the language of Article 39 of the Charter, ofa " breach of the peace or act of aggression " doesnot invalidate the treaty or the undertaking. It mustbe assumed that force exercised by the collective actionof the United Nations is exercised in accordance withits principles. This is so even in cases in which it isapplied against a State not guilty of an act or of athreat of aggression. For the enforcement action ofthe United Nations, under Chapter VII of the Charter,is not limited to action against States engaged in orthreatening aggression. It is possible for such actionto take in a situation amounting to a " threat of war ",i.e., in situations in which the United Nations considerthat force must be exercised, if necessary, against aState whose attitude, while otherwise not unlawful,endangers peace.113

In this connexion the question arises whether therule as formulated in the present article affords protec-tion, by virtue of the principle which vitiates a treatyon account of duress, to a State which has first resortedto force in violation of its obligations. That question ishere answered in the affirmative. For unless force isexercised, even against the aggressor, in accordance withon behalf of and within the limits of the law, the factof aggression is irrelevant — except to the extent thatprovision against future aggression and just reparationfor damage resulting from aggression may legitimatelyform an element of the treaty.

For the same reason, as in the existing state ofinternational organization collective enforcement of

11J See Ch. Rousseau, Principes giniraux de droitinternational public, vol. I (1944), pp. 352-354.

118 It is probably by reference to some such considera-tions, that an explanation may be found of the viewexpressed by Professor Scelle that « le droit-loi impostpar la violence ou la pression est ou non valide selon saconformit6 ou sa non-conformite avec le droit objectif »(Pricis de droit des gens, vol. II (Paris, 1934), p. 344).

peace and effective collective resistance to aggressionmay not always be possible, the character of legalsanction may occasionally be attributed to the actionof one or more States acting for the enforcement ofpeace or repulsion of aggression. When acting in thatcapacity individual States or groups of States must*in proper cases, be deemed to act as agents of the law.11*Whether they are so acting and whether in thus actingthey remain within the orbit of the principles of theCharter of the United Nations, so that they may pro-perly be regarded as the agents of the law, must be amatter for impartial determination by agencies otherthan the parties directly concerned.

10. It is necessary in this connexion to explain thereference in this article to the principles of the Charterof the United Nations as expressive of internationallaw in general. The present article — as indeed the-present draft of the Code of the Law of Treaties — isbased In the assumption that the codification of inter-national law as a whole or any part thereof must takeplace within the framework of the fundamental prin-ciples of the Charter. For some purposes the law of theCharter must be regarded as the law of the internationalcommunity in the sense envisaged by the InternationalCourt of Justice in its Advisory Opinion on the Repara-tion for injuries suffered in the service of the UnitedNations (see above, article 1 (1)). The prohibition offorce and threats of force must be considered asfalling within the orbit of these principles. These, andsome other, basic principles of the Charter must beregarded as permanent and, in case of the substitutionof the United Nations by any other general organiza-tion of States, as necessarily forming part of theconstitution of that organization. For that reason ithas been considered proper in this draft to treat theCharter of the United Nations as expressive, for somepurposes, of general international law of enduringvalidity. Should the political condition of the worldresult, at any future time, in the total disappearanceof any general organization of States, it is probablethat any Code of a Law of Treaties would becomeobsolete.

11. . . . If so declared by the International Court ofJustice at the request of any State — While other provi-sions of this article are believed to express existinglaw, it must, de lege ferenda, be regarded as fundamentalthat any allegation of the invalidity of a treaty onaccount either of compulsion or of any other reason ofinvalidity as laid down in articles 12-16 of this chaptermay properly be made with legal effect only: (a) ifaccompanied by the willingness of the State makingsuch allegation to obtain a finding of an internationaltribunal on the matter, and (6) if followed by an actual

114 The notion that compulsion is not a vitiating elementin relation to validity of treaties in cases in which whatis exacted from the coerced State does not go beyond thelimits of international law is clearly expressed by Hall:" Consent is conceived to be freely given in internatio-nal contracts, notwithstanding that it may have beenobtained by force, so long as nothing more is exactedthan it may be supposed that a State would consent togive, if it were willing to afford compensation for pastwrongs and security against the future commission ofwrongful acts . . . When this point, however is passed,constraint vitiates the agreement" (E. E. Hall, Interna-tional Law (3rd ed., 1890), p. 235).

Law of treaties 151

finding of the tribunal to that effect. It is only ifthese conditions are fulfilled that reliance on the vitiat-ing effect of duress — as well as of other reasons ofinvalidity — instead of constituting a disintegratingforce in the treaty relations of States may become afactor in maintaining the authority of international•engagements. If a State has been unlawfully coercedinto entering a treaty, the proper course for it is —whenconditions permit — to ask an international tribunalto make, in contentious proceedings, a declaration tothat effect. The acceptance of the present article"would amount to a conferment of obligatory jurisdictionupon international tribunals in a matter of this descrip-tion. In view of the gravity of the issues involved theInternational Court of Justice would seem to be theproper tribunal competent to declare the invalidity ofthe treaty.

As the continued validity of a treaty imposed byforce is a matter of concern for the entire internationalcommunity, the present article gives to every Memberof the United Nations — whether it has become a partyto the Code of the Law of Treaties or not — the rightto ask the Court to declare, in contentious proceedings,the invalidity of a treaty imposed by force. TheState directly affected may not always be in the posi-tion to do so.

Note

1. As already submitted in the general observationsto the comment to this article, the Commission isconfronted with an important question of principlein relation both to the present article and most of theother articles in this part bearing on the validity oftreaties. For although there exists a certain amountof inconclusive practice in the form of allegations ofduress 116 bearing on this aspect of the law of treatiesthat practice is not considerable either in extent or inimportance. At the same time, the various causes ofinvalidity of treaties have loomed large in the writingsof publicists and in various codes and drafts of thelaw of treaties. This has been so for the reason— which must be regarded as decisive — that thesystematic exposition of an important branch of lawcannot properly be determined by the actual or pro-bable frequency of occurrences giving rise to theapplication of the rules of law in question. This is notmerely a matter of elegantia juris. It is a question ofthe authority and the completeness of the law. Thereis no warrant for assuming that by giving to the variousaspects of invalidity a place in the Code of the Law ofTreaties, encouragement may be given to arbitraryappeal to them. If the safeguards of a judicial natureformulated in the present article are adopted, they willrule out, as a matter of law, any abusive or unilateralreliance on the fact or assertion of coercion. It will

116 At the Washington Conference of 1921 Chinaraised, though in somewhat circuitous fashion, the ques-tion of the validity of her acceptance in 1915 of the so-called twenty-one demands presented to her by Japan(Willoughby, China at the Conference (1922), pp. 253, 255).In the course of the Tacna-Arica Arbitration of 1925 and1926 Peru relied frequently on the allegation that shehad been compelled to sign the Treaty of 1884. Whenin 1920 Bolivia and Peru addressed to the Assembly ofthe League of Nations a request for the revision of theirtreaties with Chile one of the grounds of the request wasthat those treaties had been imposed by force.

not be the interested State but the InternationalCourt of Justice which will declare the treaty to beinvalid. Undoubtedly, experience shows that thenullification of treaties imposed by force takes placenot in pursuance of a judicial verdict but of a politicalaction taken in conformity with changed conditions ofpower. But this is not an adequate or desirablereason for removing from the province of judicialdetermination what is essentially a question of law.The decisive feature of the article as here formulatedis that the historic foundation of the traditional rulewhich disregarded the vitiating effects of duress hasdisappeared. That historic foundation was the legaladmissibility of war as an instrument both of enforcingand creating rights. The International law Commissionis now called upon to find — constater — that change asa matter of fact. In thus drawing the consequence ofan accomplished change of the law the Commissionwill be codifying, not developing, the law of nationsin one of its most essential aspects. At the same time itwill be formally incorporating into the law of treatiesa general principle of law of incontestable authority.

2. According to the article as drafted treaties im-posed by force or threat of force are void. They are anullity.116 They are not merely voidable — with theeffect that the coerced party may take advantage ofit or of part of it, if it so chooses, or that it may becomelegally bound by it if it fails to exercise its right ofavoidance within a reasonable time or if it has benefitedfrom it. The attitude of acquiescence or apparentacquiescence on the part of the coerced party is irrele-vant. Any State may ask for a declaration of nullity.The defect of the treaty concluded in such circumstanceis fundamental and nothing short of the conclusion ofa freely negotiated treaty can cure it. For this reasonit is difficult to accede to the reasoning adopted inarticle 4 (3), and the comment thereto, of the HarvardDraft Convention of Rights and Duties of States incase of Agression to the effect that the imposed treaty" may offer an intrinsically fair and equitable adjust-ment of the controversy which led to the armedconflict " . " ' For the case is not merely one of anarmed conflict; it is a case of unlawful recourse toforce. In relation to a treaty concluded in these cir-cumstances it is impracticable and contrary to prin-ciple to confer upon an international tribunal thepower of scrutinizing whether it is " intrinsicallyreasonable ". The governing consideration is that atreaty concluded under duress — following uponunlawful recourse to force —• is not only vitiated by

116 The Harvard Research Draft Convention of 1939 onRights and Duties of States in case of aggression laysdown, in article 4 (3), that " a treaty brought about by anaggressor's use of armed force is voidable ". The differ-ence between " absolute nullity " and mere yoidabilityis discussed lucidly by Professor Guggenheim in hiscourse of lectures entitled « La validity et la nullity desactes juridiques internationaux » in Recueil des Cours del'Academie de droit international, vol. 74 (1949), pp. 194-236. Valuable contributions to the subject have alsobeen made by Professor Verzijl («La validity et la nullitydes actes juridiques internationaux » in Revue de droitinternational, t. XV (1935) pp. 284-339) and Dr. W. G.Hertz (« Essai sur le probleme de la nullitd » in Revue dedroit international et de la legislation comparie, 3 e serie,vol. 20 (1939) pp. 450-500).

117 American Journal of International Law, vol. 33(1939), Supplement, p. 828.

152 Yearbook of the Internationa Law Commission, Vol. II

the absence of consent but also that its conclusion andcontinuation are contrary to international publicpolicy. For the same reason, unlike in the case oferror or even fraud, it is difficult to apply to suchtreaties the principle of severability (see below, part IVof the draft) and to try to discover which provisionsof the treaty were not in fact imposed by force (andmay therefore be treated as valid) and which mustremain void; or, to apply another test, which provisionsare intrinsically reasonable and equitable and whichare not.

3. It has been noted that under the present articleno party to a treaty is entitled to declare it invalid onthe ground that it has been concluded under duress.What it, or any other State, may do is to request theInternational Court of Justice, by a unilateral applica-tion, to declare, in contentious proceedings, that thetreaty is invalid. The consent of the other party to,or its participation in, the proceedings are not required— although it is to be expected that if it has a goodcase it will elect to defend it before the Court. (In theabsence of such participation the Court, acting inaccordance with article 53 (2) of its Statute, wouldstill be bound to investigate the merits of the allegationthat the treaty has been concluded under duress.) Theessence of the relevant provision of the present articleis that there is no other way of legally pronouncing theillegality of an enforced treaty except through ajudgement of the Court. There is no room for anyunilateral action of the interested State save that ofinitiation of judicial proceedings. For that reason thepresent article does not follow the suggestion embodiedin article 32 (c) and (d) of the Harvard Draft Conven-tion on Treaties which gives to the State seeking fromthe Court a declaration of nullity the right to suspendprovisionally the performance of its obligations underthe treaty. The necessity of any such measures maybe met through the exercise by the Court of the power,under article 41 of its Statute, to indicate provisionalmeasures to preserve the respective rights of eitherparty. This may include, in proper cases, the right ofa party to be freed, provisionally, from the performanceof an invalid treaty. It may be a matter for considera-tion whether this article should not give the Court thepower to decree, as distinguished from mere intima-tion, any applicable provisional measures. In anycase, it must be for the Court — and not for the Statesconcerned — to"1 suspend provisionally the operationof a treaty.

Article 13

Absence of fraud

1. A treaty procured by fraud is voidable, at theinstance of the International Court of Justice or, ifthe parties so agree, of any other international tri-bunal at the option and at the request of the injuredparty.

2. The injured party may affirm the treaty thusprocured and ask for damages for the injury causedto^it by the fraud of the other party.

Comment

1. The subject matter of this article is largelytheoretical. There have been no instances of judicialdetermination — by national or international tribunals

— of disputes arising out of attempts to avoid a treatyon account of fraud. Neither does it appear thatinternational practice shows examples of Governmentsraising the issue at all — although writers have occasi-onally discussed the propriety of the action of Mr.Webster, the United States Secretary of State, in not.bringing to the attention of the British negotiators amap privately discovered and showing the boundaryline in a manner favourable to the British contention.They have also discussed at some length whethertreaties induced by fraud are void or voidable. Forreasons substantially identical with those adduced inthe general comment to article 12 relating to coercionit is desirable that the Code of the Law to Treaties,should contain, subject to suitable variations, anarticle such as here proposed.

2. The reasons — including those of internationalpublic policy — which prompt the adoption of theprinciple that treaties concluded under duress arevoid, do not obtain in the case of fraud. It is sufficientto lay down the principle that such treaties are voidableat the option of the injured party and to the extentto which their provisions have been affected by fraud.

3. As in the case of coercion so also in relation to thepresent article a State is not entitled unilaterally tothrow off the obligations of a treaty by a unilateralassertion that it has been procured by fraud. Thisseems to be in accordance with existing legal principle.Only an international tribunal is entitled to make adeclaration and pronounce judgement to that effect.De lege ferenda, in default of agreement by the partiesto confer jurisdiction in the matter upon anotherinternational tribunal, the International Court ofJustice must be accorded compulsory jurisdiction toadjudicate upon the allegation of fraud. The occasionaldisinclination of writers to recognize fraud — as well asother factors affecting the reality of consent — as areason of nullity or voidability of treaties has been theapprehension that, in view of the deficiencies of inter-national judicial machinery, any such elaboration ofthe requirements of validity of treaties may affectadversely the binding force of international engage-ments. The principle embodied in the present articleleaves no room for any such apprehension. It may benoted that whereas in the case of duress the seriousnessof the alleged ground of nullity and the probableabsence of equality in the position of the parties requirethe exclusive jurisdiction of the International Courtof Justice, these considerations do not apply in thecase of other defects of consent.

4. For the same reasons — unlike in the case ofduress — the right to challenge the validity of thetreaty on account of fraud must be deemed to belongto the injured party only.

5. As the treaty induced by fraud is not automati-cally void, the party adversely affected must possessthe option: (a) of relying on the principle of severabilityof provisions of treaties and, in proper cases, of askingfor the rescission of some of its provisions only, and(b) of affirming the treaty as a whole and of asking forcompensation of the damage resulting from the fraudperpetrated by the other contracting party. In bothcases the compulsory or agreed jurisdiction of an inter-national tribunal must be regarded as essential.

Law of treaties 153

Article 14Absence of error

A treaty entered into under the mistaken belief,not due to fraud of a contracting party, as to theexistence of a fact substantially affecting the treatyas a whole is voidable, at the instance of the Interna-tional court of justice or, if the parties no agnel, ofanyather international tribunal, at the option and at therequest of the party adversely affected by the mistake.

Comment1. The reasons, adduced in article 12 above as to

the propriety and desirability of including in the draftCode of Treaties articles bearing on the reality ofconsent as a condition of validity of treaties, applyalso to the present article. Moreover, instances ininternational practice, both judicial and otherwise,of mistakes as affecting treaties are more frequentthan those of fraud — though in some cases, occasi-onally discussed under the heading of mistake, thesubject-matter of the difficulty more accurately fallswithin the category of interpretation and rectification.This applies, for instance to the case of article 15 (1) ofthe Warsaw Convention of 12 October 1929 for theUnification of Certain Rules relating to InternationalAerial Transport. In that article, by a mistake oftranslation, the word " transporteur" was usedinstead of " exporteur". The mistake was subse-quently rectified by agreement of the parties and theaction of the Secretary-General of the League of Nations(for details see comment to article 29 of the HarvardDraft Convention).118 It is possible that interpretation,and not reality of consent, is the proper sedes materiaewith regard to what is believed to be the mostfrequent example of mistake in international practice,namely, a discrepancy between maps or geographicalfacts and the apparent intention of the parties asexpressed in the treaty. Apart from this, the problemof mistake as an element vitiating the validity of treaties,far from constituting a prominent feature of interna-tional practice, has been merely conspicuous in text-books. The care and deliberation which precede themaking of treaties in modern times and the ease ofaccess to sources of information render it unlikelythat its regulation in a Code of the Law of Treatieswill prove of direct practical assistance. However,for the reasons stated, it is not feasible or proper todisregard it in any codification of the law of treaties.

2. The mistake which in the contemplation of thepresent article invalidates a treaty, is one whichis not induced by misrepresentation. For in the lattercase, the treaty is invalidated by fraud. The mistakemust be such as to go to the root of the matter andaffect an essential aspect of the treaty. The fact thatit could have been discovered prior to the conclusion

118 American Journal of International Law, vol. 29 (1935),Supplement. A recent example of a rectification, by subse-quent agreement, of an error made in the original treatymay be noted. In the agreement of 1 August 1950 betweenCanada and France concerning air services the followingerror occurred: article 5 of the agreement instead ofstating " from being used for the carriage of any interna-tional air traffic offered ", used the word " ordered ". Byan Exchange of Notes of 28 September 1950 the partiesrectified the error (United Nations, Treaty Series, vol. 77,p. 369).

of the treaty, is probably irrelevant — though thecircumstance that a contracting party has been guiltyof negligence in failing to discover a mistake whichcould have been discovered by the exercise of ordinaryforesight may entitle the innocent party to compen-sation for the loss caused by the invalidation of thetreaty.

3. The considerations and principles bearing uponthe voidability (as distinguished from nullity) of atreaty affected by essential mistake; the necessity of ajudicial or arbitral determination of the fact and theconsequence of mistake; provisional suspension of theoperation of the treaty; and the severability of itsprovisions are the same, mutatis mutandis, as in thecase of fraud (article 13 above). In view of the actualand probable scarcity of international practice on thesubject it is unnecessary to elaborate in the presentarticle the details of these contingencies. These mustbe left to the appreciation of international tribunalsin the light of general principles of law and good faith.

4. The principle of compulsory jurisdiction of inter-national tribunals to determine the existence of erroras a cause of invalidity of a treaty must, upon analysis,be regarded as a principle de lege lata. This is so forthe reason that any acknowledgement of the right of aparty to terminate unilaterally a treaty on the groundof error — or, generally, of any other allegation ofabsence of reality of consent — would be tantamountto a denial of the binding force of the treaty.

Note1. As stated in the comment the main — if not the

only — instances in which error has been invoked by acontracting party in relation to a treaty and in whichthere has been judicial or arbitral pronouncement onthe subject have been instances of error in connexionwith maps or other geographical descriptions. Partieshave found on occasions that a particular locality asdescribed in the treaty did not exist at all or that thecrucial line of delimitation was at a very considerabledistance from that which they assumed.119

"• In this class must be included the controversywhich arose between Great Britain and the United Statesin connexion with the Treaty of 1783 which referred to arange of highlands south of the St. Croix River as thedividing line between two systems of rivers. No suchrange of highlands existed; nor was it shown on the mapused by the negotiators: J. B. Moore, History and Digestof International Arbitrations (Washington, 1898), pp. 65 ff.A dispute also arose as to the identity of the St. CroixRiver. The dispute was settled by arbitration in 1798:J. B. Moore, International Adjudications, Ancient andModern (New York, 1929-1930), vol. 2, p. 373. Thedecision of the Supreme Court of the United States, inUnited States v. Texas [1896] 162 U.S. 1, 37-42, is anotherexample of a rectification of a geographical descriptionused in a treaty (of 1819 between the United States andSpain). So is also, to a conspicuous degree, the Islandof Timor case between Portugal and the Netherlandsdecided in 1914 (Scott, Hague Court Reports (1916), pp. 355et seq.), where the Tribunal interpreted the apparentlyerroneous description of the boundary by carefullyelucidating the intentions of the parties at the successivestages of the negotiations. The incident between Russiaand France on the one hand and Great Britain and Austriaon the other, in connexion with the interpretation of theParis Treaty of 1856, recounted by McNair, The Law ofTreaties, op. cit., p. 131, is of interest. And see generallySandifer, Evidence before International Tribunals (1939),pp. 156-164, with regard to maps.


Nevertheless the parties have not claimed in such casesthat the treaty was void. They have asked for aninterpretation or a rectification of the treaty. Writershave treated the matter largely as one of interpretationor evidence. With regard to maps, municipal jurispru-dence has treated discrepancies between the descriptionof the parcels in the contract and the map attached toit as one of construction. However, even if cases ofthis nature fall more properly within the field of inter-pretation, they illustrate at the same time the principlethat not every error involves the voidability of thetreaty. Such effect attaches only to an essential errorwhich goes to the roots of the treaty.

2. It will be noted that the error referred to in theabove article must be one of fact — not of law. Theprinciple that a person — or a State — cannot pleadignorance of the law, civil or criminal, as a reason forescaping the consequences of his conduct is an indis-pensable legal principle. It applies with special forceto Governments who are in the position to rely on theservices of experts. The matter was touched upon byJudge Anzilotti in his dissenting opinion in the case ofEastern Greenland where he discussed the questionwhether the validity of a declaration made by theNorwegian Foreign Minister could have been vitiatedby a mistake — the Judge found that " there was nomistake at all " — as to the consequences of the exten-sion of Danish sovereignty: " one can scarcely believethat a Government could be ignorant of the legitimateconsequences following upon an extension of sove-reignty" (Publications of the P.C.I.J., Series AjB,No. 53, p. 92). On a minor scale, in the matter of acontract made by a ruler of a protected State, thefollowing observation of the arbitrator, Lord Asquith,may be noted in relation to the allegation that as theruler was not cognizant of the rule that territorialwaters form part of the territory of the State, a conces-sion given by him over his entire territory did not,nevertheless, cover the territorial waters. The arbitra-tor said: " I am not impressed by the argument thatthere was in 1939 no word for ' territorial waters ' inthe language of Abu Dhabi, or that the Sheikh wasquite unfamiliar with that conception. . . Every Stateis owner and sovereign in respect of its territorialwaters, their bed and subsoil, whether the ruler hasread the works of Byonkershoek or not. The extentof the ruler's dominion cannot depend on his accom-plishment as an international jurist " {The Internationaland Comparative Law Quarterly, 4th Series, vol. I,Part II (1952), p. 253).

Section IIILegality of the object of the treaty

Article 15Consistency with International Law

A treaty, or any of its provisions, is void if its per-formance involves an act which is illegal under inter-national law and if it is declared so to be by theInternational Court of Justice.

Comment1. The principle formulated in this article is gener-

ally — if not universally — admitted by writers whohave examined this aspect of validity of treaties. Yet,

mainly for two reasons, the question is not free of'difficulty. In the first instance, not every treaty is.void which departs from customary international law.For it is generally recognized that, in principle, States,are free to modify by treaty, as between themselves,the rules of customary international law. Modus etconventio vincunt legem. Thus, so long as the treatydoes not affect the rights of third States, there wouldseem to be no reason why two States shall not agree-that, as between themselves, the width of territorialwaters should be fifty miles; that their warshipsshould be allowed to stop and otherwise exercisejurisdiction over the merchant vessels of the othercontracting party on the high seas; that their diploma-tic representatives should not enjoy the jurisdictionalimmunities otherwise prescribed by international law;that their public ships and other governmental agencies,should have no immunity from suit; that their nationals,should be liable to military service in the territory ofthe other contracting party; or that they shall havethe right to nationalize without compensation theproperty of the nationals of the other contractingparty. Numerous other examples of this nature couldbe adduced. In so far as any such treaty modifyingor abolishing a rule of customary international lawwere to purport to interfere with the rights of thirdStates they would in any case be without effect in asmuch as a treaty cannot lawfully affect the rights ofStates which are not parties to it and in as much as,for that reason, an international tribunal would declareit to be unenforceable so far as the rights of thirdStates are concerned.

2. Accordingly, a treaty is not void on account ofillegality on the mere ground that it purports to affect,without its consent, the right of a third State. If itpurports to do that it will be, to that extent, unen-forceable by international tribunals by virtue of the rulepacta tertius nee prosunt nee nocent. It is arguable thatfor that very reason, namely, because they purportto affect the rights of third States, such treaties arenot only unenforceable against such States, but arealso in themselves void on account of the fact thattheir object is illegal — such illegality consisting inthe attempt to interfere with the rights of a thirdState in disregard of rules of international law. Thusto quote from Judge McNair's work on treaties: " It isbelieved that a treaty between two States the executionof which contemplates the infliction upon a thirdState of what customary international law regards asa wrong is illegal and invalid ab initio " (op. cit., p. 113).The true reason of such treaties being void is that theyhave for their object an act which is illegal accordingto customary international law.

3. The object of a treaty may be illegal — and thetreaty correspondingly void — even if it does notdirectly affect third States. Thus it has been suggestedthat in so far as instruments such as the Declarationof Paris of 1856 which abolished privateering or theSlavery Convention of 1926 obliging the parties toprevent and suppress trade in slaves have becomeexpressive of a principle of customary internationallaw, a treaty obliging the parties to violate theseprinciples would be void on account of the illegalityof its object. The abovementioned instruments consti-tute also examples of inconsistency of a subsequent

Law of treaties 155

treaty with rules of international law which, althoughoriginating from a treaty concluded between a limitednumber of States, subsequently acquire the complexionof generally accepted — and, to that extent, custo-mary — rules of international law.

4. It would thus appear that the test whether the-object of the treaty is illegal and whether the treatyis void for that reason is not inconsistency with•customary international law pure and simple, butinconsistency with such overriding principles of inter-national law which may be regarded as constitutingprinciples of international public policy (ordre interna-tional public). These principles need not necessarilyhave crystallized in a clearly accepted rule of law suchas prohibition of piracy or of aggressive war. Theymay be expressive of rules of international morality socogent that an international tribunal would considerthem as forming part of those principles of law gener-ally recognized by civilized nations which the Interna-tional Court of Justice is bound to apply by virtue ofArticle 38 (3) of its Statute. Although it is not possibleto cite any judicial decision in support of that viewthere are occasional interesting observations of indivi-dual judges to that effect. Thus in his individualopinion in the Oscar Chinn case Judge Schiickingasserted that " the Court would never . . . apply aconvention the terms of which were contrary to publicmorality " (Publications of the P.C.I.J., Series A/B,No. 63, p. 150).

5. The voidance of contractual agreements whoseobject is illegal is a general principle of law. As suchit must find a place in a codification of the law oftreaties. This is so although there are no instances,in international judicial and arbitral practice, of atreaty being declared void on account of the illegalityof its object.

6. The following observations are relevant to thetest of the proposed article: (a) In referring to " atreaty or any of its provisions " the intention is toapply the principle of severability, namely, that anysingle provision involving an illegality, does not entailthe nullity of the treaty if the latter, taken as a whole,can be upheld. This will not be possible if the provisionin question constitutes an essential part of the treaty.(b) As the offending treaty — or the offending provi-sion — is contrary to overriding principles of inter-national law it cannot be enforced by an interna-tional tribunal even if the State which stands to benefitfrom the judicial nullification of the treaty fails toraise the issue. No action will lie on a treaty of thatdescription. On the other hand, the defendant State,although it has taken part in bringing about the illegaltreaty, can plead the illegality as a defence. In paridelicto potior est conditio defendentis. This to a largeextent answers the question whether and to whatextent a State can be relieved of the performance ofan illegal treaty. It can suspend performance andleave it to the other contracting party to resort to theInternational Court of Justice for the vindication ofthe validity of the treaty. The jurisdiction of theCourt in such cases is obligatory. It is the Court,and not the interested party, which is finally entitledto declare the treaty, or part thereof, to be void onaccount of illegality.

7. As in other articles of this part of the presentdraft, so also in the matter of nullity of treaties on theground of their inconsistency with binding rules ofinternational law, the operation of the principle in-volved must be dependent upon the willingness ofthe party invoking it to abide by the decision of aninternational tribunal upholding the allegation ofinvalidity or making, proprio motu, a finding to thateffect. The reasons, which are of a general character,for that principle have been stated above in paragraph 4of the comment on article 14. It is a principle de legelata.

Note

1. As explained in the comment the incorporationof this article must be regarded as essential in anycodification of the law of treaties. This is so notwith-standing the substantial practical and doctrinal diffi-culties inherent in the solution here adopted. Thusin the sphere of municipal law the legislature is oftencalled upon to enact statutes which derogate fromwhat has hitherto been regarded as the overridinglaw of the land and imperative considerations of publicpolicy. Courts must give effect to the statutes thusenacted. In the international sphere the functionof such legislation is frequently fulfilled by treaties,both bilateral and multilateral. But if, as stated inthe present article, international courts are to bejudges of the validity of treaties in the light of over-riding principles of international custom and interna-tional public policy as hitherto recognized, a situationmay be created in which international society may bedeprived of the necessary means of developmentthrough processes of international legislation. Probablythe exceptional character of such contingencies reducesto limited proportions the practical difficulty involved.But there ought to be no doubt as to the existence ofthe problem and the possible necessity of an attemptat solving it, de lege ferenda, within the framework ofthe present article. (The same problem arises, inarticle 16, with regard to treaties of a general legisla-tive character inconsistent with previous treaties).Thus, for instance, if Article 2 (6) of the Charter wereto authorize, in terms more categorical than it does atpresent, intervention in the affairs of non-memberStates, the question might arise of the validity ofsome provision on the face of it incompatible with theprohibition of intervention and the independence ofStates. De lege ferenda there may be room for theconsideration of a principle affirming that a multila-teral treaty concluded in the general internationalinterest is valid even if departing from or contrary towhat has been considered in the past to be an over-riding rule of customary international law.

2. At the same time this and similar difficultiescounsel caution in the matter of extending the limitsof voidability of treaties. For this reason the presentdraft does not refer in a separate article to consistencywith international morality as a condition of validityof treaties. To do so may result in conferring uponinternational tribunals a measure of discretion, in amatter admitting of highly subjective appreciation,which Governments may not be willing to conferupon them and which they could exercise only withdifficulty. In so far as considerations of morality— such as conduct in accordance with canons of

156 Yearbook of the International Law Commission, Vol. IE

good faith — form a constituent part of generalprinciples of law and of the requirements of interna-tional public policy they are provided for in the presentarticle.

Article 16Consistency with Prior Treaty Obligations

1. A treaty is void if its performance involves abreach of a treaty obligation previously undertakenby one or more of the contracting parties.

2. A party to a treaty which has been declaredvoid by an international tribunal on account of itsinconsistency with a previous treaty may be entitledto damages for the resulting loss if it was unawareof the existence of that treaty.

3. The above provisions apply only if the departurefrom the terms of the prior treaty is such as to interfereseriously with the interests of the other parties tothat treaty or seriously impair the original purpose ofthe treaty.

4. The rule formulated under paragraphs (1) and(2) does not apply to subsequent multilateral treaties,such as the Charter of the United Nations, partakingof a degree of generality which imparts to them thecharacter of legislative enactments properly affectingall members of the international community or whichmust be deemed to have been concluded in the inter-national interest.

Comment

1. The subject-matter of the present article is ofconsiderable importance and also of some complexityinasmuch as it raises the problem of the adaptation ofa cogent legal principle to the requirements of peacefuldevelopment on international law and organization.This is so although the matter has given rise to onlya relatively small number of judicial or arbitralpronouncements and although even these provide nodirect authority for the principle here formulated.Thus in the Oscar Chinn case (Publications of theP.C.I.J., Series AjB, No. 63), while the dissentingopinions of two judges were based in substance on theprinciple formulated in the present article, the Courtas a whole did not pronounce directly on the subject.The question in that case was whether the Conventionof St. Germain of 1919 relating to the Congo, whichaltered the provisions of the General Act of Berlinof 1885, was valid. The judgement of the Court reliedin this respect on the fact that the parties to thedispute, the United Kingdom and Belgium, did notchallenge the validity of the Convention of St. Germain.In 1917 Costa Rica and Salvador brought an actionbefore the Central American Court of Justice onaccount of the violation by Nicaragua, by a treatyconcluded with the United States, of her treaties withthese States. The Court, for jurisdictional reasons,declared itself unable to act on the request that itshould declare the treaty with the United States to benull and void {American Journal of InternationalLaw, vol. II (1917), p. 228). It declined to do so forthe reason that one of the parties thereto, namely,the United States, was not a party to the dispute. Butthe Court found that Nicaragua " is under the obliga-tion — availing itself of all possible means providedby international law — to re-establish and to maintainthe legal status that existed prior to the Bryan-

Chamorro Treaty " (ibid.). The decision of the sameCourt in an action brought in pari materia by Salvadoragainst Nicaragua was to the same effect (ibid., p. 729).In what is perhaps the most important incident bearingon the subject — the incident arising out of the allega-tion of inconsistency of the Hay-Varilla Treaty of1903 between the United States and Panama and theHay-Pauncefote Treaty of 1901 between the UnitedStates and Great Britain in the matter of exemptionof Panama from tolls levied on ships passing theCanal — the dispute never came for judicial determi-nation.

2. The effect of article 16 is that an internationaltribunal requested to enforce a treaty the performanceof which involves a breach of a treaty obligationpreviously undertaken by one or more of the parties tothe new treaty must decline to enforce the subsequenttreaty. It must do so on the ground that the latter isvoid. The article does not adopt alternative solutionssuch as that the obligations of the former treaty takepriority over those of the latter treaty which otherwiseremains valid. It proceeds on the assumption that ifparties to a treaty bind themselves to act in a mannerwhich is a violation of the rights of a party under apre-existing treaty, they commit a legal wrong whichtaints the subsequent treaty with illegality. Thisresult follows cogently from general principles of lawgoverning the subject, from requirements of interna-tional public policy and the principle of good faithwhich must be presumed to govern international rela-tions. These considerations are summarized in anextract reproduced below in note 1 to this comment.

3. The knowledge, at least on the part of onecontracting State, of such incompatibility must —unless in exceptional circumstances of which it is noteasy to conceive — be assumed. This is so, in particu-lar, having regard to the fact that since the Covenantof the League of Nations the obligation of registration,followed as it is by publication, rests upon most States.In those exceptional cases in which one of the partiesto the new treaty had, for no fault of its own, noknowledge of the pre-existing treaty, principle requiresthat the other party should compensate it for thedamage caused by the fact that the subsequent treatyis declared void. This is the effect of the second para-graph of the article. The possibility that the incompa-tibility was unknown to both parties to the new treatymust be regarded as remote — except in so far as itis due to the mistaken belief that no legally relevantinconsistency with the former treaty existed.

4. As in the case of invalidity on other grounds, soalso the invalidity of the subsequent treaty on accountof its inconsistency with a previous treaty, must, ifit is to excuse a party from performance, be declaredby an international tribunal, when called upon toenforce that subsequent treaty, on the application ofone of the parties. Moreover, international tribunalsmust also be deemed competent to declare the nullityof the subsequent treaty at the request of a party tothe prior treaty even if no attempt has yet been madeto put the subsequent treaty into effect. For thevery existence of the subsequent offending treaty, inso far as it is a source of challenge and uncertainty forthe parties to the previous treaty, provides a legitimate

Law of treaties 157

occasion for protest by the parties to the prior treatyand for a request on their part that the subsequenttreaty should be formally declared void. This in facthas been the attitude of Governments in most of thecases in which they considered their interest to beaffected by the conclusion of the subsequent treaty.

5. The principle that the subsequent treaty, viola-tive of a prior conventional obligation, is invalidrequires a substantial modification in cases in whichthat subsequent treaty partakes of the nature of ageneral rule of international law of a legislative char-acter. Within the municipal sphere a statute mayeffectively interfere with pre-existing contracts. Somesuch principle must also apply in international rela-tions in cases in which the subsequent treaty is — ineffect (though not in strict law seeing that there isas yet no legislation proper in the relations of States) —of a legislative character. Thus Article 103 of theCharter of the United Nations provides that " in theevent of a conflict between the obligations of the Mem-bers of the United Nations under the present Charterand their obligations under any other internationalagreements, their obligations under the present Chartershall prevail ". In referring, in the matter of theobligations of the Members of the United Nations, to" their obligations under any other internationalagreement " the Charter refers to agreements concludedboth prior and subsequent to the acceptance of theCharter. In so far as it is directed to the latter theCharter merely upholds the principle that the obliga-tions of a prior treaty have precedence over those of atreaty concluded subsequent to it. Under the presentarticle 16, which is intended to be declaratory ofexisting law, treaties inconsistent with the Charterand concluded subsequent to its acceptance are voidwhether concluded with Members of the United Nationsor with States which are not Members. However, inso far as Article 103 of the Charter in referring to" obligations under any other international agreement"aims at treaties entered into prior to the acceptanceof the Charter, that Article, being inconsistent withtreaties previously concluded, would itself be void unlesswe apply to it the principle adopted in paragraph 4.That principle provides an exception with regard to" subsequent multilateral treaties, such as the Char-ter of the United Nations, partaking of a degree ofgenerality which imparts to them the character oflegislative enactments properly affecting all membersof the international community ". The same principlehas been sanctioned in a different sphere by theInternational Court of Justice in the advisory opinionconcerning Reparations for injuries suffered in theservice of the United Nations. To that extent this partof paragraph 4 of article 16 must be regarded as beingde lege lata. (Article 20 of the Covenant of the Leagueof Nations merely provided, with respect to obligationsundertaken by a State prior to its becoming a memberof the League and inconsistent with the Covenant,that it is its duty to take immediate steps to procurerelease from such obligations. With regard to otherobligations the Covenant adopted the rule that " theCovenant is accepted as abrogating all obligations andundertakings inter se which are inconsistent with theterms thereof " which meant in effect that they werevoid. This result — with regard to future treaties —would have followed, it is believed, even without the

express provision of article 20 with regard to treatiesconcluded by members of the League both inter seand with non-member States.)

6. Similar considerations, although in a more limitedsphere, may apply to paragraph 4 in so far as it refersto treaties, inconsistent with previous treaty obliga-tions, " which must be deemed to have been concludedin the international interest ". At present, the possi-bility of quasi-legislative international enactments,such as the Charter of the United Nations, beingaccepted by a vast majority of States is distinctlylimited. But situations may arise in which a treatyconcluded by a considerable number of States, thoughnot so numerous as to approach universality, coincidesso patently with general international interest that itmay properly be entitled to claim to override previoustreaty obligations — especially if in cases of thisdescription an attempt is made to compensate thebeneficiary of the prior treaty. In exceptional casesthis might be held to apply even to a bilateral treaty.Thus there is room for the view that the treaty of 1903between the United States and Panama which promisedthe latter exemption for Panamanian ships passingthe Canal and which was considered inconsistent withthe treaty concluded in 1901 with Great Britain wasconcluded in the international interest inasmuch asits purpose was to make possible the opening of a greatinternational highway of paramount importance andinasmuch as the special concessions granted to Panamawere an essential condition of the conclusion of thetreaty. It is not suggested that the above examplenecessarily falls within the provision of the exceptionformulated in paragraph 4. However, that examplelends emphasis to the view that some such exceptionmay properly find a place in any general rules as laiddown in that paragraph. While this specific provisionof paragraph 4 is essentially de lege ferenda, it is believedto merit full consideration in connexion with thecodification of the law of treaties. The safeguardingof the authority of treaties must be reconciled with theequally important international interest involved inpreventing the development of international law frombeing hampered by the obligations of existing treaties.In some cases parties have expressly provided againstthe contingency of a treaty becoming a stumblingblock in the way of general international regulation.Thus the Air Navigation Agreement between theUnited Kingdom and Canada of 19 August 1949 pro-vided, in article 11 (2), that " in the event of theconclusion of any general multilateral conventionconcerning air transport by which both contractingparties become bound, the present Agreement shallbe amended so as to conform with the provisions ofsuch convention " (United Nations, Treaty Series, 44,p. 240).120

im With this there may be contrasted the way inwhich, the Hague Convention of 1930 on Certain QuestionsRelating to the Conflict of Nationality Laws attemptedto resolve the problem of inconsistency by providing,in article 19, that nothing in the Convention " shall affectthe provisions of any treaty, convention or agreement inforce between any of the High Contracting Parties relatingto nationality or matters connected with i t". A provi-sion of this character substantially reduces the legaleffect of the multilateral treaty — although it cannot beinterpreted as leaving the parties freedom of action withregard to treaties concluded subsequent to the acceptanceof the multilateral treaty.

158 Yearbook of the Internatioiial Law Commission, Vol. II

7. Considerations of similar nature apply also to thequalification of the general rule as expressed in para-graph 3. That qualification is specially relevant to thecase of multilateral conventions. The latter are oftenin need of revision. It is clearly undesirable that suchrevision should be possible only through unanimousagreement of the original contracting parties. Ifsuch unanimity is impossible, the parties to theoriginal convention must, in proper cases, be in aposition to alter, inter se, its provisions by means of anew treaty concluded by them. This, for instance,has been the case in the matter of the various HagueConventions of 1899 and 1907 and the successiveGeneva Conventions for the amelioration of thecondition of the sick and wounded in the armies inthe field. These new treaties did not adversely affectthe interest of the original contracting parties orimpair the purpose of the original treaties. A differentsituations was said to have arisen in connexion with thecase, mentioned above in paragraph 1 of this comment,of the Treaties of Berlin of 1885 and of St. Germainof 1919. Two of the dissenting judges in the OscarChina case, which was concerned with the relationbetween these two treaties, were of the opinion thatthe latter treaty had, to a substantial extent, theeffect of frustrating the object of the Treaty of 1885,which was still in force, and that for that reason theTreaty of 1919 was null and void. (The opinions ofJudges Nyholm and Negulesco in the case concerningthe Competence of the European Commission of theDanube — Publications of the P.C.I.J., Series B, No.14pp. 73, 129 — were substantially to the same effect.)If that were so — the present comment expressesno opinion on the question — the view of the dissentingjudges must be regarded as unobjectionable. The factthat the parties directly concerned in the case did notchallenge the validity of the treaty of 1919 was probablynot relevant. It is believed that if the Court hadexamined the allegation that the treaty of 1919 frus-trated the purpose, to which some of the original signa-tories legitimately attached importance, of the treatyof 1885, and if the Court had come to the conclusionthat it was so, then it would have been consistent withand required by correct legal principle to hold that thetreaty of 1919 was void. An international court cannotproperly enforce a treaty whose purpose of effectamounts to a legal wrong, in matters of substance,against some of the signatories of the original treaty.The proper course for States wishing to conclude anew treaty inconsistent with their obligations under theprior multilateral treaty is to decounce it, if they cando so consistently with its provisions, and to concludea new treaty. On the other hand — in particular ifsuch termination of the original treaty is not legallypossible — the continued existence of the originalmultilateral treaty cannot legitimately provide a reasonfor preventing developments which are desirable andgenerally beneficial and which, although departingfrom or amplifying, however considerably, the termsof the original treaty, cannot be regarded as undulyinterfering with the rights of the original parties orthe true purpose of that treaty. Moreover, it is clearthat, de lege ferenda, consideration ought to be givento the adoption of a rule permitting changes in theoriginal treaty by a decision which, if necessary, fallsshort of an unanimous decision of the original parties.

Note

1. The importance of the subject matter of thisarticle from the point of view both of the law of treatiesand of international law in general j ustif ies, it is believed,a detailed treatment of the matter in the article itselfand in the comment. The Special Rapporteur venturesto refer in this connexion to the following passage inan article, of which he is the author:

" In the international sphere the reasons forregarding later inconsistent treaties as void andunenforceable are even more cogent than in privatelaw. It is, as a general rule, incompatible with theunity of the law for the courts to enforce mutuallyexclusive rules of conduct laid down in a treaty, astatute, or a contract. But among individualscontracts are infinite in variety and number; amongStates they are relatively few and a matter of generalknowledge. The shock, therefore, resulting fromany recognition of the later contract to the sentimentof the unity of the law is greater in the latter thanin the former case. Moreover, in so far as there isany disposition by municipal courts to treat the latercontract as subsisting, the logical exclusiveness ofthe subject-matter of the two contracts is mitigatedby substituting the right to damages for the secondinconsistent obligation. In the international spheredamages, by the very nature of things, are in mostcases not likely to offer adequate compensationfor the wrong. For these reasons it is difficult toaccept the view that the treaties in question arevalid and that the only effect of the inconsistency isthat the obligations of the former treaty takepriority over the conflicting provisions of the lateragreement. This would be the position in any case.For, obviously, a state cannot lawfully terminate atreaty by the simple device of concluding anothertreaty inconsistent with the first. The flaw in thelater treaty has an effect reaching beyond the merereproduction of an obvious rule of international law.It makes that later treaty unlawful and incapableof enforcement.

" This insistence on the nullity of the later treatyis not, it is submitted, mere pedantry. Treaties,woven into the structure of customary internationallaw, are the substance of the growing and changinglaw of nations. International law cannot recognizeand it must actively discourage a state of affairsin which the law-creating faculty of states is abusedfor violating'existing law as laid down in validagreements. Governments cannot be permitted todiscredit international law and to render it unrealby filling it with mutually exclusive obligations andby reducing treaties to conflicting makeshifts ofpolitical expediency." (British Year Book of Inter-national Law, vol. 17 (1936), pp. 63-64).

2. The principle that contracts entered into by theparties in violation of previous contractual obligationsbinding upon them are void must be regarded as ageneral principle of law. As to English law, Sir FredericPollock (Principles of Contracts (9th ed., 1921), p. 475)lays down, without apparent qualification, the rulethat if A concludes a contract with B and then anothercontract with C which, to the knowledge of both Band C, is inconsistent with the first contract, then the

Law of treaties 159

second contract is void. For an elaboration of thisrule in private law see H. Lauterpacht, " Contracts toCreate a Contract" in Law Quarterly Review, 1936,pp. 434-454. (See also ibid., pp. 524-527, for anexamination of French and German law.) The prin-cipal French decision on the subject is that of theFrench Court of Cassation of 13 October 1912 inDeutsche Celluloid Fabrik v. Schwerber (Sirey, 1913,I, p. 259) where it was held that a contract of servicebetween the plaintiff and the defendant made indisregard of a contract which, to the knowledge ofboth parties, was binding on the defendant, was void.

3. Some treaties, including article 20 of the Covenantof the League of Nations referred to above, includeexpress provisions in which the parties undertake notto conclude treaties inconsistent with the obligationsalready undertaken. As already suggested, suchprovisions, in which the parties undertake not toviolate an existing obligation, are redundant and ofdoubtful legal elegance.121 They do not provide anargument either in support or in refutation of theprinciple formulated in article 16.

4. The importance of that principle assumes par-ticular importance in relation to conventions codifyinginternational law. If the parties were to be in a posi-tion to conclude, inter se, treaties inconsistent withthe general purpose of the convention, the resultingsituation would indeed be confusing. Reference maybe made in this connexion to an article by ProfessorM. Hudson in American Journal of International Law,vol. 24 (1930), p. 461, in which he discusses the possi-bility of States concluding treaties modifying inter sethe conventions resulting from The Hague CodificationConference of 1930. He suggested that " such actionwould, in a sense, be contrary to the spirit of codifica-tion ". He recalled that in the report of the draftingcommittee such conventions were not consideredimproper provided that they affected " only the relationsbetween the States parties thereto ". However, thepurport of these conventions would not thus be limitedif their effect were to frustrate or seriously impair thepurpose of codification.

5. For the reasons stated the present article 16 doesnot adopt the solution proposed in article 22 (c) of theHarvard Draft Convention which, while leaving onone side the question of the nullity of the offendingsubsequent treaty, merely lays down that " theobligation assumed by the earlier treaty takes priorityover the obligation assumed by the latter treaty ".That formulation of the legal position is, it is believed,contrary to principle (see note 1) and to the views ofpractically all writers who have considered the question.Neither does it take into account the nature of thesituation confronting a court adjudicating on a claimto enforce the subsequent treaty. The question of

priority of obligations is not before the court. It isnot called upon to pronounce whether the prior obliga-tion is to be enforced or not.

6. In this connexion it may be noted that the ques*tion of the nullity of the subsequent inconsistent treatydoes not arise if the party to the prior treaty which isadversely affected by the subsequent treaty expresslyor by implication waives its rights thereunder. Thishappens on occasions as, for instance, in the case ofthe British protest against the Hay-Varilla Treatyin 1903. Once waiver has taken place, there is nolonger any inconsistency and therefore no question ofthe nullity of the subsequent treaty.

Section IV

Form and publicity

Article 17

Written Form

An agreement is void as a treaty unless reduced towriting.

Comment

1. There is slight — and occasionally exotic 122 —authority in support of the view that a treaty may bethe result of an oral agreement. It is not certain towhat extent certain passages in the judgement of thePermanent Court of International Justice in the caseof Eastern Greenland (Publications of the P.C.I.J.,Series AjB, No. 53, pp. 69, 70) can be regarded assupporting that view. It is probable that, as the factand the contents of the oral declaration made, in thatcase, by the Norwegian Minister for Foreign Affairswere not disputed, the Court did not address itself tothat question at all. It appears also that the declara-tion was recorded simultaneously with its oral trans-mission. In view of this no decisive importance needbe attached to the observation of Judge Anzilotti inhis Dissenting Opinion that " there does not seem tobe any rule of international law requiring that agree-ments of this kind must necessarily be in writing, inorder to be valid " (ibid., pp. 91, 92). In the Kulincase decided in 1927 by the Roumanian-HungarianMixed Arbitral Tribunal the latter refused to recognizethe binding force of alleged verbal engagements, asrecorded in the minutes of a conversation, made byHungary (Recueil des decisions des tribunaux arbitrauxmixtes, vol. VII, p. 38). In the arbitral award givenin 1889 in the dispute between Germany and GreatBritain concerning a concession on the Island of Lamathe arbitrator, in declining to attach importance toan alleged oral statement of the Sultan of Zanzibardeclaring his immediate readiness to grant a concession,

121 The same probably applies to such provisions asarticle 6 of the Brussels Treaty of 17 March 1948 ofEconomic, Social and Cultural Collaboration and Collec-tive Self-defence in which the parties declared " each sofar as he is concerned, that none of the international enga-gements now in force between him and any other of theHigh Contracting Parties is in conflict with the provisionsof the Treaty ".

182 See for example, the agreement referred to by Grotiusbetween Mithridates and Sulla in 84 B.C. (De juri belliet pads, ii, XVI, 30); between King Ludwig and KingCharles the Bald in 870, referred to in L. Bittner, Die Lehrevon den volkerrechtlichen Urkunden (Stuttgart, 1924), p. 4;and an arrangement for an alliance between Peter theGreat and Frederick III in 1697, Elector of Brandenburg(F. von Martens, Traite de droit international (translationA. Leo) Paris, 1883, p. 541).


expressed the view that " although there is no lawwhich prescribes a written form for agreementsbetween States, it is nevertheless contrary to interna-tional usage to contract orally engagements of thisnature and character ". In the course of the Manchu-rian dispute between Japan and China, the former reliedon a " protocol " consisting of the minutes of conversa-tions between the Chinese and Japanese representativesin Peking in 1905 in which China agreed not to con-struct railways in certain districts of Manchuria.China contended that the " protocol", which wasnever incorporated in a formal treaty, consisted of an" arbitrary selection " of various articles of provisionalunderstandings embodied in the daily records of theConference. The Lytton Commission of Enquiry inits Report of 4 September 1932 treated the " protocol "as a binding agreement having the force of a " formalcommitment" although the results of the conversa-tions were not subsequently embodied in the treaty.

2. Whatever may be the interpretation of the aboveinconclusive incidents and pronouncements, it issubmitted that a Code of the Law of Treaties mustexpressly lay down the requirement of written form asa condition of their validity. In view of the conflictingconclusions which can be drawn by reference to suchrare authority as there exists on the subject, it is oflittle importance whether the requirement of writingas a condition of validity of treaties is regarded asbeing de lege lata or de lege ferenda. The decisive consi-deration in favour of the solution adopted in the presentarticle is: (a) that international precedents suggestingthat oral agreements are binding as treaties are butfew, insignificant and controversial; and (b) that it isdesirable, having regard to the security and certaintyof international transactions and to the significance oftheir subject matter, that treaties be recorded inwriting. Treaties to which States and internationalorganizations are parties are concerned with matters ofimportance. Within the State the law provides uni-formly that certain types of important contractsshould be in writing or an even more solemn andrecorded form. It is an obvious requirement of thecertainty and the convenience of international inter-course that this should be so invariably in the case oftreaties. At a time when the additional requirementof registration is in most treaties regarded as a condi-tion of their enforceability before the organs of inter-national society (see article 18), the mere requirementof writing is a self-evident minimum.128 This statementis not inconsistent with the occasional and still survivingpractice of so-called " verbal notes" which are, inpoint of fact, neither verbal nor instruments constitutingagreements. They are communications transmittedand recorded in writing.124 It is significant that prac-

188 J. W. Garner, who generally favoured the view thatoral agreements are binding, stated that " it is not easyto see how parties to an oral treaty can comply with thisrequirement [of registration]": American Journal ofInternational Law, vol. 27 (1933), p. 494.

114 See for example, the verbal note of 1 March 1948 bywhich the Czechoslovak Government in pursuance of article10 of the Peace Treaty with Romania notified the RomanianGovernment of those pre-war bilateral treaties betweenthe two countries which Czechoslovakia desired to keepin force. The communication, registered in the UnitedNations, Treaty Series (vol. 26, p. 112), ends with therequest to the Romanian Minister of Foreign Affairs*' to acknowledge the receipt of the present verbal note ".

tically all unofficial and official drafts or Codes of theLaw of Treaties postulate written form as a conditionof the validity of treaties. Article 2 of the HavanaConvention on Treaties of 20 February 1928 laysdown that " the written form is an essential conditionof treaties".126

3. The rule that an oral undertaking does notconstitute a treaty does not necessarily signify that,on occasions, it may not result in the creation of aninternational obligation. For international obligationsmay be created by acts other than treaties such as, forinstance, the declarations of or conduct by agents inthe course of oral proceedings before internationaltribunals.128 Such declarations made by authorizedagents have frequently been regarded by the PermanentCourt of International Justice and its successor asbinding upon the parties. But this does not mean thatsuch acts are treaties.

4. The principle formulated in article 17 accordingto which writing is a condition of the validity of thetreaty does not signify that any special requirementof form or formality attaches to the requirement ofwriting. What matters is the existence of a record ofthe agreement — provided that such record does notemanate exclusively from one of the parties. Thus theminutes of a conference or of a meeting recording theagreement of the parties or a recorded unilateraldeclaration accepted by the other party may besufficient for the purpose. The fact that such unila-teral declaration, duly recorded, took originally theform of an oral declaration is irrelevant.127 The sameapplies essentially to cases in which the writtenagreement is stated to constitute the acceptance ofproposals made verbally 128 or in confirmation of anoral agreement.129

Article 18

Registration

Treaties entered into by Members of the UnitedNations subsequent to their acceptance of the Charterof the United Nations cannot be inyoked by the partiesbefore any organ of the United Nations unless regis-

" ' See also Field's draft, article 188; Bluntschli's draft,article 422; Fiore's draft, article 744; Pessoa's draft,article 200; the draft of the International Commissionof Am^-rican Jurists, article 2.

188 See for exmple, Mavrommatis case (Publications ofthe P.C.I.J., Series A, No. 5, p. 37); Upper Silesian case(ibid., Series A, No. 7, p. 13); Free Zones case (ibid.,Series AjB, No. 46, pp. 170, 172); case of Sociiti commer-ciale de Belgique (ibid., Series A/B, No. 78, p. 178); CorfuChannel ca s>e (I.C.J. Reports 1949, pp. 24,25).

127 See the oral declaration made at the signing of theAnglo-Egyptian Treaty of Alliance of 1936 (ParliamentaryPapers: Egypt, No. 1 (1936)). It is probable that theOral Declaration of the Norwegian Foreign Minister andthe " protocol" relating to the Manchurian railway,both referred to above in paragraph 1 of this Comment,belong to this category. And see note 5 following uponthe Comment to article 2 above on memoranda of under-standing constituting an agreement, agreed combinedstatements, and the likc.

128 As in the Exchange of Notes of 18 and 19 December1922 between the Netherlands and Romania (League ofNations, Treaty Series, vol. 14, p. 191).

129 As in the Exchange of Notes of 23 March 1944between the United Kingdom and Turkey (United NationsTreaty Series, vol. 2, p. 227).

Law of treaties 161

tered, as soon as possible, with the Secretariat of theUnited Nations.

Comment

1. This article does no more than reproduce thesubstance of Article 102 of the Charter of the UnitedNations. It is not certain to -what extent, in its presentformulation, it has a direct bearing on the question ofvalidity of treaties. For article 102 does not lay downthat treaties which have not been registered are invalid.It merely provides that they cannot be invoked beforeany organ of the United Nations. This means substan-tially — though not inevitably — that they cannot beenforced before any organ of the United Nations. Asenforceability is the hallmark of validity, the effectis that such treaties are, to that extent, invalid.

2. It may be said, in reliance upon the wording ofArticle 102, that there is nothing to prevent an organof the United Nations from applying a non-registeredtreaty if the latter is not invoked by the parties. Anysuch argument is believed to be a refinement. If anon-registered treaty is likely to be of advantage toone party, it will be " invoked " by the other in orderto prevent its application. Moreover, it is believedthat an accurate — as distinguished from a literal —interpretation of this provision of the Charter is that anon-registered treaty cannot be applied by an organof the United Nations (and not merely that it cannotbe invoked before an organ of the United Nations).130

3. The article as drafted does not prevent non-Member States from registering treaties concludedeither between themselves or with Members of theUnited Nations. No such limitation follows from theterms of the Charter. In fact, as the consequences ofnon-registration of a treaty to which a Member of theUnited Nations is a party may adversely affectcontracting parties who are not Members, it is properthat they should be permitted to register treatiesconcluded by them and it is in their interest that theyshould avail themselves of that facility. The practiceof the United Nations has been in accordance withthat view.131

4. The term " treaties " used in article 18 is hereintended to be identical with the expression " everytreaty and every international agreement" used inArticle 102 of the Charter and to cover the entire fieldof treaties in the meaning o2 article 2 of the presentdraft.132

180 For an expression of a somewhat different view onthe subject see M. Brandon in British Year Book ofInternational Law, vol. 29 (1952).

131 See the following comment in the Report of theRapporteur of Committee IV/2 of the San FranciscoConference in the matter of paragraph 2 of article 102:" This provision also covers treaties and. agreements towhich both members and non-members are parties. It isopen to the latter to have such treaties or agreementsregistered. Moreover, it is necessary that they should beable to do so, seeing that their right to invoke the treatyor agreement before an organ of the Organization ismade subject to registration " (UNCIO, vol. 13, p. 706).

13a The subject is discussed by M. Brandon in an articleentitled " Analysis of the Terms 'Treaty' and 'Internatio-nal Agreement' for Purposes of Registration underArticle 102 of the United Nations Charter " and publishedin American Journal of International Law, vol. 47 (1953),pp. 49-69.

Note

1. The present article, in so far as it reproducessubstantially an article of the Charter of the UnitedNations, seems to be out of place in a general codifica-tion of the law of treaties applicable, in principle, to allStates. However, it has been deemed proper to includeit in the present draft for the reason that, as statedelsewhere (comment to articles 1 and 12), the Chartermust be regarded in some ways as an expression ofgeneral international law; that, in the matter of regis-tration of treaties the effects of the Charter extend— not improperly — to States which are not membersof the United Nations (see below, note 2); and that thereasons which have led to the adoption of Article 102as well as of the corresponding article 18 of the Cove-nant of the League of Nations are of general validity(see below, note 3).

2. No legal impropriety attaches to a rule whichaffects with unenforceability — so far as organs of theUnited Nations are concerned — non-registered treatiesthe parties to which are non-member States. Noobligation of registration is imposed upon such States.The Charter — and the present article — merelyprovide that if a non-member State desires to be inthe position to invoke a treaty before the organs of theUnited Nations it must avail itself of the opportunityoffered to it to register the treaty. Moreover, a non-member State, when concluding a treaty with a Mem-ber of the United Nations, must be deemed to beaffected with the knowledge of the provision of theCharter which requires registration as a condition ofenforceability before the organs of the United Nations.To that extent the contractual capacity of Membersof the United Nations is limited. Non-members enterinto treaty relations with Member States with thefull knowledge of that limitation. They are in theposition, by availing themselves of their right toregister the treaty, to safeguard themselves againstits consequences.133

3. The reason for viewing the principle of registra-tion as an incipient rule of general international lawis particularly cogent if it is considered that the prin-ciple of registration — and subsequent publication —is a principle adopted in the general interest of theinternational community, of certainty of internationalintercourse, and of the authority and effectivenessof treaties within such spheres, for instance, as thatcovered by article 16 of the present draft relating toconsistency 'of treaties with prior treaties. Theimportance of that principle was stressed in a memoran-dum approved in 1920 by the Council of the League ofNations, in a passage which merits quotation:

" Publicity has for a long time been considered asa source of moral strength in the administration ofNational Law. It should equally strengthen the

1M The somewhat restrictive interpretation, in thisrespect, of the corresponding provision of the Covenantof the League of Nations by the President of the French-Mexican Claims Commission in the Pablo Najera case(Annual Digest, 1927-1928, Case No. 271) can partly•— but only partly — be explained by the manner inwhich the fact of non-registration of the French-MexicanClaims Convention of 1924, which established the Commi-sion, was relied upon by Mexico.


laws and engagements which exist between nations.It will promote public control. It will awaken publicinterest. It will remove causes for distrust andconflict. Publicity alone will enable the League ofNations to extend a moral sanction to the contractualobligations of its Members. It will, moreover, contri-bute to the formation of a clear and indisputablesystem of International Law " (League of Nations,Official Journal, 1920, p. 154).

It was by reference to these considerations that JudgeHudson, when commenting upon the registration oftreaties by the United States with the League ofNations, spoke of " the general benefit to be derivedfrom the provision of article 18 of the Covenant"(American Journal of International Law, vol. 28 (1934),p. 345).

4. While the present article, following Article 102 ofthe Charter, makes it possible for Members of theUnited Nations to invoke a non-registered treaty beforea tribunal or body other than an organ of the UnitedNations, the practical importance of the remedy thusleft open is insignificant. As a rule, apart from anytreaty conferring obligatory jurisdiction upon a tri-bunal other than the International Court of Justice,proceedings before any such outside body or tribunalwould require the consent of both parties to the treaty.In the circumstances, it is not likely that any suchconsent would be forthcoming. However, there oughtto be little doubt as to the unsatisfactory nature of aprovision which makes the enforceability of a treatydependent upon the organ called upon to apply it. Insome cases that organ may be designated by theUnited Nations itself as, for instance, in the case ofthe Security Council acting under Chapter VI of theCharter and recommending, as a proper method ofsettlement, recourse to an arbitral tribunal. Theseconsiderations appear to militate in favour of theadoption, de lege ferenda, of some such rule as proposedin note 5 below.

5. It may be a matter for consideration whether inIts codification of the law of treaties the InternationalLaw Commission ought not, in the exercise of itsfunction to develop international law, formulate arule both more comprehensive and more explicitthat than formulated in the present article on thebasis of Article 102 of the Charter. In the sphere ofmunicipal law the requirement of registration is acondition of the validity of many instruments of animportance smaller than that usually attaching totreaties. There is no apparent reason why such requi-rement should not be adopted without qualification inthe matter of treaties. That rule might be formulatedas follows: " A treaty concluded by a Member of theUnited Nations shall be void if not registered with theUnited Nations within six months of its entry intoforce." A formulation of this nature would avoid

many of the existing obscurities of Article 102 of theCharter. In particular, it would have the merit ofproviding a time limit for registration; of renderingunnecessary the determination, both by the organsconcerned and by the parties, of the period within whicha treaty is to be deemed to have been registered " assoon as possible "; and of discouraging a practice ofdelaying registration until the necessity arises forinvoking the treaty. Some such time limit would notnecessarily have the effect of permanently nullifyinga treaty which has not been registered as the resultof oversight or for similar reasons. It would alwaysbe open to the parties to conclude a new treaty, interms identical with those of the non-registered treaty,and to register it within the period prescribed. More-over, the provision of a time limit might be accompaniedby the conferment, upon some international organ,of the power to grant relief, in appropriate cases andfor cogent reasons, by sanctioning an extension of thetime limit as prescribed. Such power of relief mayextend, in particular, to cases in which the treaty hasactually been published by the parties. For in suchcase the main reason of the requirement of registrationhas, in fact, been complied with. The latter circum-stance explains, in part, why the Permanent Court ofInternational Justice on two occasions admitted asrelevant instruments which had not been registeredwith the League of Nations.13* Similarly, some suchelement of reasonable interpretation in accordancewith the spirit of the principle of registration mayjustify the assumption of jurisdiction by the Court byreference to a special agreement which has not beenregistered and is immediately acted upon by the parties.In a different sphere, provision might be made forpermitting the disregard of the absence of registration,by the parties, of multilateral treaties or such instru-ments as the trusteeship agreements or declarationsof the acceptance of the jurisdiction of the InternationalCourt of Justice under Article 36 of the Statute. Inall or most of these cases registration may be effectedex officio by the depositary authority or the Secretary-General of the United Nations. It may be possibleto make some general provision for such latitude ofinterpretation in cases involving a departure from theletter — though not the spirit — of an otherwisemandatory rule adopted in pursuance of what hasbecome recognized as an important principle of inter-national public policy.

184 In the Mavrommatis Palestine Concession cases theCourt assumed jurisdiction, in its judgement of 30 August1924 (Publications of the P.C.I.J., Series A, No. 2, p. 33)by reference to a protocol concerning concessions signedat Lausanne on 30 August 1924. In the advisory opinionconcerning the Polish Postal Service in Danzig (ibid.,Series B, No. 11) the Court took note of the so-calledWarsaw Agreement between Danzig and Poland whichhad not been registered but the text of which had beencommunicated to the Council of the League of Nations.