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Commentary

on the 1969 Vienna Convention


on the Law of Treaties
Commentary
on the 1969 Vienna Convention
on the Law of Treaties

By
Mark E. Villiger

LEIDEN BOSTON
2009
This book is printed on acid-free paper.

Library of Congress Cataloging-in-Publication Data

Villiger, Mark Eugen.


Commentary on the 1969 Vienna Convention on the Law of Treaties / By Mark E.
Villiger.
p. cm.
Includes bibliographical references and index.
ISBN 978-90-04-16804-6 (hardback : alk. paper)
1. Vienna Convention on the Law of Treaties (1969) 2. Treaties. I. Title.
KZ1298.31969.V55 2009
341.37dc22
2008042006

ISBN: 978 90 04 16804 6

Copyright 2009 by Koninklijke Brill NV, Leiden, The Netherlands.


Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing,
IDC Publishers, Martinus Nijho Publishers and VSP.

All rights reserved. No part of this publication may be reproduced, translated,


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printed in the netherlands


Hear and heed thyself: In treaties aye keep truth!
What thou art, art thou only through treaties

Hr und hte dich: Vertrgen halte treu!


Was Du bist, bist Du nur durch Vertrge

Richard Wagner, The Rheingold, Fasolt in Scene 2


In gratitude to

the European Court of Human Rights and


the former European Commission of Human Rights

where I learned to interpret and apply an international treaty.


Contents

Preface .................................................................................................... xix


Acknowledgments .................................................................................. xxi
Foreword ................................................................................................ xxiii
Abbreviations ......................................................................................... xxvii
How to employ this commentary .......................................................... xxxiii

Issues of customary international law .................................................... 1


History of the Convention .................................................................... 28
Preamble ................................................................................................ 39

PART I

INTRODUCTION

Article 1
Scope of the present Convention ........................................................... 55

Resolution relating to Article 1 .............................................................. 62

Article 2
Use of terms ........................................................................................... 65

Article 3
International agreements not within the scope of the present
Convention ........................................................................................ 98

Article 4
Non-retroactivity of the Convention ..................................................... 107

Article 5
Treaties constituting international organisations and treaties
adopted within international organisations ........................................ 115
x contents

PART II

CONCLUSION AND ENTRY INTO FORCE OF TREATIES

Section 1. Conclusion of Treaties

Article 6
Capacity of States to conclude treaties .................................................. 125

Article 7
Full Powers ........................................................................................... 132

Article 8
Subsequent conrmation of an act performed without
authorisation ..................................................................................... 147

Article 9
Adoption of the text ............................................................................. 154

Article 10
Authentication of the text ..................................................................... 165

Article 11
Means of expressing consent to be bound by a treaty .......................... 172

Article 12
Consent to be bound by a treaty expressed by signature ...................... 181

Article 13
Consent to be bound by a treaty expressed by an exchange of
instruments constituting a treaty ...................................................... 195

Article 14
Consent to be bound by a treaty expressed by ratication,
acceptance or approval ...................................................................... 203

Article 15
Consent to be bound by a treaty expressed by accession ...................... 214

Declaration on universal participation in the Vienna Convention


on the Law of Treaties ...................................................................... 224
contents xi

Article 16
Exchange or deposit of instruments of ratication, acceptance,
approval or acceptance ...................................................................... 229

Article 17
Consent to be bound by part of a treaty and choice of
diering provisions ........................................................................... 235

Article 18
Obligation not to defeat the object and purpose of a treaty
prior to its entry into force ............................................................... 242

Section 2. Reservations

Article 19
Formulation of reservations .................................................................. 257

Article 20
Acceptance of and objections to reservations ........................................ 276

Article 21
Legal eects of reservations and of objections to reservations .............. 295

Article 22
Withdrawal of reservations and of objections to reservations ............... 304

Article 23
Procedure regarding reservations ........................................................... 313

Articles 1923Subsequent developments .......................................... 320

Section 3. Entry into Force and Provisional


Application of Treaties

Article 24
Entry into force .................................................................................... 339

Article 25
Provisional application .......................................................................... 349
xii contents

PART III

OBSERVANCE, APPLICATION AND


INTERPRETATION OF TREATIES

Section 1. Observance of Treaties

Article 26
Pacta sunt servanda ................................................................................ 361

Article 27
Internal law and observance of treaties ................................................. 369

Section 2. Application of Treaties

Article 28
Non-retroactivity of treaties .................................................................. 379

Article 29
Territorial scope of treaties .................................................................... 387

Article 30
Application of successive treaties relating to the same
subject-matter ................................................................................... 395

Section 3. Interpretation of Treaties

Article 31
General rule of interpretation ............................................................... 415

Article 32
Supplementary means of interpretation ................................................ 442

Article 33
Interpretation of treaties authenticated in two or more languages ........ 450

Section 4. Treaties and Third States

Article 34
General rule regarding third States ....................................................... 465

Article 35
Treaties providing for obligations for third States ................................. 474
contents xiii

Article 36
Treaties providing for rights for third States ......................................... 481

Article 37
Revocation or modication of obligations or rights of third States ......... 489

Article 38
Rules in a treaty becoming binding on third States
through international custom ........................................................... 497

PART IV

AMENDMENT AND MODIFICATION OF TREATIES

Article 39
General rule regarding the amendment of treaties ................................ 507

Article 40
Amendment of multilateral treaties ...................................................... 517

Article 41
Agreements to modify multilateral treaties between
certain of the parties only ................................................................. 528

PART V

INVALIDITY, TERMINATION AND SUSPENSION


OF THE OPERATION OF TREATIES

Section 1. General Provisions

Article 42
Validity and continuance in force of treaties ........................................ 541

Article 43
Obligations imposed by international law independently of a treaty ......... 550

Article 44
Separability of treaty provisions ............................................................ 556

Article 45
Loss of a right to invoke a ground for invalidating, terminating,
withdrawing from or suspending the operation of a treaty .............. 572
xiv contents

Section 2. Invalidity of Treaties

Article 46
Provisions of internal law regarding competence to
conclude treaties ............................................................................... 583

Article 47
Specic restrictions on authority to express the consent of a State ....... 595

Article 48
Error ..................................................................................................... 603

Article 49
Fraud ..................................................................................................... 613

Article 50
Corruption of a representative of a State .............................................. 621

Article 51
Coercion of a representative of a State ................................................. 629

Article 52
Coercion of a State by the threat or use of force .................................. 638

Declaration on the prohibition of military, political or


economic coercion in the conclusion of treaties ............................... 651

Resolution relating to the Declaration on the prohibition of


military, political or economic coercion in the conclusion
of treaties .......................................................................................... 658

Article 53
Treaties conicting with a peremptory norm of general
international law ( jus cogens) ............................................................ 661

Section 3. Termination and Suspension of the


Operation of Treaties

Article 54
Termination of or withdrawal from a treaty under its provisions
or by consent of the parties .............................................................. 681
contents xv

Article 55
Reduction of the parties to a multilateral treaty below the
number necessary for its entry into force ......................................... 690

Article 56
Denunciation of or withdrawal from a treaty containing no
provision regarding termination, denunciation or withdrawal .......... 695

Article 57
Suspension of the operation of a treaty under its provisions
or by consent of the parties .............................................................. 707

Article 58
Suspension of the operation of a multilateral treaty by
agreement between certain of the parties only .................................. 712

Article 59
Termination or suspension of the operation of a treaty
implied by conclusion of a later treaty ............................................. 720

Article 60
Termination or suspension of the operation of a treaty
as a consequence of its breach .......................................................... 730

Article 61
Supervening impossibility of performance ............................................ 752

Article 62
Fundamental change of circumstances .................................................. 762

Article 63
Severance of diplomatic or consular relations ....................................... 782

Article 64
Emergence of a new peremptory norm of general international
law ( jus cogens) ................................................................................. 790

Section 4. Procedure

Article 65
Procedure to be followed with respect to invalidity, termination,
withdrawal from or suspension of the operation of a treaty ............. 799
xvi contents

Article 66
Procedures for judicial settlement, arbitration and conciliation ............ 816

Annex to Article 66 .............................................................................. 824

Resolution relating to Article 66 and the Annex .................................. 835

Article 67
Instruments for declaring invalid, terminating, withdrawing from or
suspending the operation of a treaty ................................................. 837

Article 68
Revocation of notications and instruments provided for in
Articles 65 and 67 ............................................................................ 845

Section 5. Consequences of the Invalidity,


Termination or Suspension of the Operation of a Treaty

Article 69
Consequences of the invalidity of a treaty ............................................ 853

Article 70
Consequences of the termination of a treaty ........................................ 865

Article 71
Consequences of the invalidity of a treaty which conicts with a
peremptory norm of general international law ................................. 876

Article 72
Consequences of the suspension of the operation of a treaty ............... 883

PART VI

MISCELLANEOUS PROVISIONS

Article 73
Cases of State succession, State responsibility and
outbreak of hostilities ....................................................................... 895

Article 74
Diplomatic and consular relations and the conclusion of treaties ......... 905

Article 75
Case of an aggressor State ..................................................................... 911
contents xvii

PART VII

DEPOSITARIES, NOTIFICATIONS, CORRECTIONS


AND REGISTRATION

Article 76
Depositaries of treaties .......................................................................... 921

Article 77
Functions of depositaries ...................................................................... 934

Article 78
Notications and communications ....................................................... 947

Article 79
Correction of errors in texts or in certied copies of treaties ............... 955

Article 80
Registration and publication of treaties ................................................ 970

PART VIII

FINAL PROVISIONS

Article 81
Signature ............................................................................................... 979

Article 82
Ratication ........................................................................................... 985

Article 83
Accession ............................................................................................... 987

Article 84
Entry into force .................................................................................... 990

Article 85
Authentic texts ...................................................................................... 994

Final Act of the United Nations Conference on the Law of Treaties ......... 999

Annex
(see Article 66)
xviii contents

Status of the Convention ...................................................................... 1003

Reservations and declarations to the Convention and


objections thereto .............................................................................. 1007

Bibliography .......................................................................................... 1027

Table of cases ........................................................................................ 1035

Submissions by States ........................................................................... 1039

Index ..................................................................................................... 1043


Preface

This is a commentary on the Vienna Convention on the Law of Treaties 1


of 1969 (henceforth: the Convention) and as such an exercise in inter-
preting its provisions and establishing their meaning and scope. It is not
a manual, even less a monograph, on the law of treaties. Such a commen-
tary appears called for in view of the Conventions central importance for
international law, the abundance of State and court practice and literature
on individual Convention provisions, and the exceptionally rich strata of
travaux prparatoires, in particular the drafts and debates of the ILC and
the Vienna Conference of 1968 and 1969. Heavy reliance has thus been
placed on all these materials.
Methode haben heisst, mit dem Weg der Sache gehen (Simma). The com- 2
mentarys aim is to explain the content of the various articles in a broader
sense, including its history, its place in international law, and its relations
with other articles of the Convention. The commentary also includes the
declarations, resolutions and annexes pertaining to various articles. Where
disputed issues arise, a brief analysis has been included wherever possible.
The result should provide the crucible envisaged by the International
Law Commission (ILC) when interpreting an international treaty provi-
sion (Article 31, N. 29).
In order to assist further in the interpretation of the articles, the com- 3
mentary provides separate sections on the History of the Convention (q.v.)
and on Customary International Law (q.v.). There is also a compilation of
the Reservations and Declarations to the Convention and Objections Thereto
(q.v.), the Final Act to the Convention (q.v.), and the current Status of
the Convention (q.v.)
It is hoped that the structure and contents of this commentary will be 4
useful for practitioners and academic teachers alike. Clarity of presenta-
tion was indeed a major objective. A further important aim was to bring
to light the intricate network which the Vienna Conference and the ILC
wove among the various provisions of the Convention, and to provide the
necessary cross-references.
Of particular help proved to be the compilation of materials by Wetzel/ 5
Rauschning, The Vienna Convention on the Law of Treaties. Travaux
prparatoires (1978), as well as Austs masterful second edition of his
Modern Law of Treaties (2007). The magisterial three volumes edited
xx preface

by Corten/Klein, Les Conventions de Vienne sur le droit des traits.


Commentaire article par article (2006), also proved to be most stimulating.
6 Unfortunately, this commentary has for dierent reasons (not least time)
not dealt with the provisions of the Vienna Convention on Treaties between
States and International Organisations or Between International Organisa-
tions of 1986. Hopefully, this may occur in a second edition.
Acknowledgments

Above all, my thanks go to the Swiss National Research Foundation (Nation- 1


alfonds) which most generously oered to contribute to the preparation
of this work. In particular, the contribution enabled two persons to assist
me in the preparation of the manuscript. Thus, Dr. Alison Wiebalck
compiled the literature and practice for, and prepared the basis of, the com-
mentaries to Articles 1, 2, subpara. 1(a), 6, 7, 1115, 15Declaration, 27,
46, 50, 51, 52, 52Declaration, 52Resolution, 63, and 7375. She also
read through and corrected all other commentaries. Ms lic. iur. Nadine
Geiger assisted in the compilation of the literature and practice for the
remaining articles and undertook preparatory work for the commentaries
to Articles 76 and 77.
I wish warmly to thank my mentor and friend, Professor Georg Ress, 2
formerly President of Section III of the European Court of Human Rights,
for having prepared the foreword to this book. My further thanks go to
Mrs Nora Binder, librarian at the European Court of Human Rights,
and her sta who helped me over the years in my research.
I sincerely thank my mother, Mrs E. Stuber-Villiger, who read through 3
and corrected the various sections. Over many years my wife Bernadette
and my children Patrick and Catherine Villiger were, once again, the
day-to-day companions of this work. My sincerest thanks go to them. They
showed not only unwavering patience and understanding but also much
interest in the various topics and generally in the evolution of the book.
My wife carefully corrected the various texts.
Professors Dr. Walter Haller and Dr. Daniel Threr of the University 4
of Zurich provided much support during the preparation of the book, and
I warmly thank them for that. My thanks also go to other professors and
students who over the years provided much stimulation and motivation
to write the book.
My thanks also go to Brill publishers, in particular Mesdames L. Melman, 5
B. Timmer and M. Schouten-Vink, who graciously and patiently accom-
panied the preparation of this volume.
For two and a half decades I have worked in various functions in the former 6
European Commission of Human Rights and in the current European
Court of Human Rights in Strasbourg, now as a Judge in respect of the
Principality of Liechtenstein. It was in countless deliberations and discussions
xxii acknowledgments

with Judges and Members of the Commission and with members of the
Registry and the Secretariat that I learned to interpret and apply an inter-
national treaty, i.e., the European Convention on Human Rights. Court
and Commission have shaped my views on international treaty law, and
this book is dedicated to them and the many Judges and Commission
members, in sincere gratitude.
7 While I remain indebted to these and many other friends, colleagues,
teachers and students, the responsibility for any errors or omissions in the
text remains, of course, entirely my own.

Mark E. Villiger
Strasbourg/France, 1 July 2008
Foreword
by Prof. (em.), Dr. Dr. Dr. h.c. mult. Georg Ress
Former Judge of the European Court of Human Rights
Member of the Institute of International Law

This commentary is devoted to one of the most important areas of inter-


national law, that is, international treaty law. In the past there have been
intensive discussions and debates about a rank between the dierent sources
of international law, and communist States have tended to accept only inter-
national treaties as really binding for them. This tendency has underlined
the importance of international treaties as, from a political point of view,
the most important source of international law. The consensus of States
to be bound by an international treaty continues to play the primordial
role in international law. Nevertheless, there are the underlying rules of
customary law in the area of treaty law, to which the Commentary devotes
an introductory chapter. At least the rules of customary international
law will continue to govern questions not regulated by provisions of the
Convention.
One need not mention the enormous amount of universal and regional
multilateral treaties which intend to codify more and more areas of inter-
national law such as humanitarian law, the law of war, environmental law,
human rightsto name only a few of the most important elds. This pro-
cess of codication through international treaties has not only formalised
international law and brought it closer to, and made it more appropriate
for, international adjudication; it has also brought to the surface many
similarities to the dierent codes of national law.
The present commentary on the provisions of the Vienna Convention
on the Law of Treaties is, therefore, devoted not only to one of the most
important but also one of the most complex subjects of international
law. This Vienna Convention is perhaps one of the best, if not the best
achievement of the International Law Commission which goes beyond a
mere codication of then existing customary international law in trying
and daring to include some innovative regimes, for instance, the regime
on reservations, jus cogens and the validity and termination of international
treaties. Mark Villiger, professeur titulaire at Zurich University, for a long
time agent at the European Court of Human Rights and now Judge at
that Court, is well-known as the author of an excellent handbook on the
xxiv foreword

practice of the European Convention on Human Rights1 and also of an


extensive study on the relationship between customary international law
and treaties2both books now having been published in a second edition.
He served for some time as Deputy-Registrar of the Section in the Court
which I presided. Given the amount of work in the Court, I can only
guess what sacrice it may have been for him and his family to devote
many evenings during the week in writing this commentary and doing
the necessary research. Insofar, it is really to admire that such an excellent
commentary is the outcome of the work of an international lawyer work-
ing in practice and not full-time at university.
One can ask the question what the public may expect from such a
commentary. First of all, information on questions of interpretation of
the dierent provisions of the Law of Treaties Convention and also on
any possible future problems. Furthermore, precise answers for the solu-
tion of these problems as far as possibleand if not possible, reections
on alternatives. The reader will nd that this commentary has achieved to
give objective, reective answers to the many questions he has found, also
by carefully presenting the views of academic writings, the judgments of
international and national courts, arbitrary awards, and State practice. It is
obvious that Mark Villiger has carefully taken into account the judgments
of the International Court of Justice, the European Court of Human Rights,
and other international courts and tribunals in relation to treaty law. He
has also given due account to the dierent types of international treaties
and the inuence which a dierentiation between the various types may
have on their interpretation, such as, inter alia, the classication of human
rights treaties and its consequences, e.g., for the regime of reservations.
The language of the commentary is clear as are the answers to the dierent
problems. What is really excellent is the classication of each provision
into history, scope, background, interpretation, context, matters not dealt
with, customary basis and, most challenging, a specic appreciation of the
achievement of its wording.
The Vienna Convention on the Law of Treaties is part of the constantly
moving set of rules of international law. It can therefore never be complete.
From the very beginning legal analysts noted that there were deciencies
not only in the phrasing of some provisions but that a revision of some
regimes of treaty law appeared to be necessary, such as the regime of res-

1
Mark E. Villiger, Handbuch der Europischen Menschenrechtskonvention (EMRK),
2nd ed. (1999).
2
Id., Customary International Law and Treaties. A Study of Their Interactions and Inter-
relations with Special Consideration of the 1969 Vienna Convention on the Law of
Treaties (1985); Id., Customary International Law and Treaties. A Manual on the Theory
and Practice of the Interrelation of Sources, Fully Revised Second Edition (1997).
foreword xxv

ervations and the rules of treaty relations among States and international
organisations. Whilst the former attempts have been addressed in this com-
mentary, the latter are not. Nevertheless, it is obvious, given the similarity
of the dierent regimes, that one may use the commentary also for these
relations. The constant changes in dierent sets of rules of international
customary law will have an impact not only on existing international
treaties but more deeply on the rules of treaty law. This is explicitly true
for the eld of human rights law, the law of immunity of States, the law
of State succession, and most importantly the rules of interpretation with
an impact on the Charter of the United Nations.3 The increasing role of
international adjudication has been given due consideration by Mark Vil-
liger in his commentary which therefore reects also the changes by the
subsequent practice of parties to this international treaty.
This commentary deserves widespread recognition and use among practi-
tioners and academics in the eld of international law and also in national
courts where questions of international treaty law play an increasingly
important and for many judges an intriguing role.

Saarbrcken/Strasbourg, 10 April, 2008

3
See Georg Ress, The Interpretation of the Charter, in: Bruno Simma (ed.), The Charter
of the United Nations. A Commentary, 2nd ed. (2002) 1332.
Abbreviations

AFDI Annuaire franais de droit international


AJIL American Journal of International Law
Annuaire IDI Annuaire de lInsitut de droit international
AR Archiv des entlichen Rechts
Art(s). Article(s)
Asian YBIL Asian Yearbook of International Law
ATF Arrts du Tribunal Fdral Suisse
Australian LJ Australian Law Journal
Australian LR Australian Law Reports
Australian YBIL Australian Yearbook of International Law
Austrian JPIL Austrian Journal of Public International Law
Austrian RIEL Austrian Review of International and European Law
AVR Archiv des Vlkerrechts
Berkeley JIL Berkeley Journal of International Law
BBl Bundesblatt der Schweizerischen Eidgenossenschaft
Brooklyn JIL Brooklyn Journal of International Law
BYBIL British Yearbook of International Law
ca. circa
Californian WILJ Californian Western International Law Journal
Canadian YBIL Canadian Yearbook of International Law
cf. confer
CETS Council of Europe Treaty Series
Chicago JIL Chicago Journal of International Law
CHRYB Canadian Human Rights Yearbook
CILJ Southern Africa Comparative and International Law Journal of Southern
Africa
Columbia LR Columbia Law Review
Columbia JTL Columbia Journal of Transnational Law
Conf. Conference
Connecticut JIL Connecticut Journal of International Law
Cornell ILJ Cornell International Law Journal
Cornell LQ Cornell Law Quarterly
CoW Committee of the Whole (of the Vienna Conference on
the Law of Treaties of 1968/1969)
Current LP Current Legal Problems
CYBIL The Canadian Yearbook of International Law
xxviii abbreviations

Denver JILP Denver Journal of International Law and Policy


Duke LJ Duke Law Journal
diss. op. dissenting opinion
ed(s). edition, editor(s)
e.g., exempli gratia, for instance
ECHR European Court of Human Rights
ECR European Court Reports
EPIL Encyclopedia of Public International Law
EJIL European Journal of International Law
et al. et alii, and others
f(f ) and the following (page[s], para[s]., etc.)
FAO Food and Agriculture Organisation
Finnish YBIL Finnish Yearbook of International Law
GA General Assembly
GAOR General Assembly Ocial Records
Georgia JICL Georgia Journal of International and Comparative Law
Georgetown LJ Georgetown LJ
GYBIL German Yearbook of International Law
Harvard ILJ Harvard International Law Journal
Harvard LJ Harvard Law Journal
Hastings ICLR Hastings International and Comparative Law Review
IAEA International Atomic Energy Agency
ibid. ibidem, in the same place
IBRD International Bank for Reconstruction and Development
ICJ International Court of Justice
ICJ Pleadings International Court of Justice. Pleadings, Oral Arguments,
Documents
ICJ Reports International Court of Justice. Reports of Judgments, Advisory
Opinions and Orders
ICLQ The International and Comparative Law Quarterly
ICNT Informal Composite Negotiating Text
ICTY International Criminal Tribunal for the former Yugoslavia
Id. Idem, the same person
i.e. id est, that is, namely
i.f. in ne, at the end
IJIL Indian Journal of International Law
ILA International Law Association
ILC International Law Commission
ILM International Legal Materials
ILR International Law Reports
Indiana LJ Indiana Law Journal
Indian YBIA Indian Year Book of International Aairs
Institut Institut de Droit international
Int. A. International Aairs (London)
abbreviations xxix

Iowa LR Iowa Law Review


Israel LR Israel Law Review
Israel YBHR Israel Yearbook on Human Rights
Ital YBIL Italian Yearbook of International Law
JDI Journal du Droit International
Journal CSL Journal of Conict and Security Law
Journal MLC Journal of Maritime Law and Commerce
JT Journal des Tribunaux
lit. littera, letter
Leiden JIL Leiden Journal of International Law
LNOJ League of Nations Ocial Journal
LNTS League of Nations Treaty Series
LoS Law of the Sea
Maine LR Maine Law Review
Michigan JIL Michigan Journal of International Law
n. footnote
N. Note (in the margin)
New York ULR New York University Law Review
NIEO New International Economic Order
NILR Netherlands International Law Review
Nordic JIL Nordic Journal of International Law
Nordisk TLR Nordisk Tidsskrift for International Ret. Acta Scandinavica Juris
Gentium
no(s). number(s)
NYBIL Netherlands Yearbook of International Law
OAS Organization of American States
JZ sterreichische Juristenzeitung
Oxford JLS Oxford Journal of Legal Studies
ZAP sterreichische Zeitschrift fr Aussenpolitik
ZR(VR) sterreichische Zeitschrift fr entliches Recht (und Vlker-
recht)
OR Ocial Records (of the Vienna Conference on the Law of
Treaties of 1968/1969)
p(p). page(s)
para(s). paragraph(s)
passim throughout
PASIL Proceedings of the Annual Meeting of the American Society of
International Law
PCIJ Permanent Court of International Justice
Philippine LJ Philippine Law Journal
Plenary Plenary meetings (of the Vienna Conference on the Law of
Treaties of 1968/1969)
Polish YBIL Polish Yearbook of International Law
q.v. quod vide, which see
xxx abbreviations

RC Recueil des Cours. Collected Courses of the Hague Academy


of International Law
RDE Rivista di diritto europeo
RDI Rivista di diritto internazionale
Res/res R(r)esolution
Revista Revista espaola de derecho internacional
Revue Belge Revue belge de droit international
Revue DI Revue de droit international
Revue DIDC Revue de droit international et de droit compar
Revue DISDP Revue de droit international, de sciences diplomatiques et
politiques
Revue Egyptienne Revue egyptienne de droit international
Revue Roumaine Revue roumaine des Sciences Sociales
Revue Suisse Revue suisse de droit international et de droit europen
RGDIP Revue gnrale de droit international Public
RHDI Revue hllnique de droit international
RJT Revue juridique Thmis
RMC Revue du March Commun
ROW Recht in Ost und West. Zeitschrift fr Rechtsvergleichung
und innerdeutsche Rechtsprobleme
RUDH Revue universelle des droits de lhomme
sc. scilicet, in particular, namely
sep. op. separate opinion
Sess. Session
SJIR Schweizerisches Jahrbuch fr internationales Recht
South African LJ South African Law Journal
South African YBIL South African Yearbook of International Law
SR Summary Records; Systematische Sammlung (systematic
collection of Swiss legislation)
Stanford LR Stanford Law Review
subpara(s). subparagraph(s)
Suolk TLR Suolk Transnational Law Review
suppl. Supplement
Sydney LR Sydney Law Review
SZIER Schweizerische Zeitschrift fr internationales und europ-
isches Recht
Texas ILJ Texas International Law Journal
Texas LR Texas Law Review
Transactions Transactions of the Grotius Society
UCDLR University of California at Davis Law Review
UCLALR University of California at Los Angeles Law Review
UK United Kingdom of Great Britain and Northern Ireland
UN(O) United Nations (Organisation)
abbreviations xxxi

UNCIO United Nations Conference on International Organisation


UNCITRAL UN Commission on International Trade Law
UNCLOS (III) (Third) UN Conference on the Law of the Sea
UNRIAA UN Reports of International Arbitral Awards
UNTS UN Treaty Series
UPLR University of Pennsylvania Law Review
UPU Universal Postal Union
US(A) United States (of America)
UTLJ University of Toronto Law Journal
Washington LR Washington Law Review
Wisconsin ILJ Wisconsin International Law Journal
Vanderbilt JTL Vanderbilt Journal of Transnational Law
Virginia JIL Virginia Journal of International Law
vol(s). volume(s)
WHO World Health Organisation
Yale JIL Yale Journal of International Law
Yale StWPO Yale Journal of (Studies in) World Public Order
Yale LJ Yale Law Journal
YBAAA Yearbook of the Association of Attenders and Alumni of the
Hague Academy of International Law
YBILC Yearbook of the International Law Commission
ZaRV Zeitschrift fr auslndisches entliches Recht und Vlker-
recht
ZR Zeitschrift fr entliches Recht
ZSR Zeitschrift fr schweizerisches Recht
How to employ this commentary

Navigation within these pages is facilitated by the Contents at the outset 1


of the commentary to each article, and by the Index at the end of the
book.

The commentary to each article comprises dierent sections which are 2


listed at the outset in the Contents. All commentaries follow the same
structure:
At the outset there is a section on the Background to the provision: Here, the rst
part, the Introduction, aims to provide a short description of the situation in interna-
tional law and the particular pre-ILC developments. The second part, History, oers
a survey of the travaux prparatoires on the particular provision. It should be read
together with History of the Convention (q.v.).
There follows the section Interpretation of the particular article which aims to anal-
yse the meaning and scope of the particular rule. The paragraphs of each article are
dealt with separately. The words or sentences being commented on are mentioned
in bold, thereby, it is hoped, enabling easy access to the interpretation of the part
of the Article which the reader is looking for.
Thereafter, any Reservations to the particular provision, and any objections thereto,
are mentioned.
The next part is the Context. Here, rst, the relationship to other provisions is explained.
Second, those matters are mentioned which have not been dealt with in the particular
article. Third, there follows an examination of whether or not the particular article
is declaratory of customary international law. In rare cases, a fourth part examines any
proposals for amendment of the provision at issue.
The nal section, Appreciation, oers a brief and personal assessment of the particular
provision.

In each commentary there are references to other parts of that commentary, 3


in particular to the relevant Notes (referred to as N. 00); to the commentar-
ies of other articles in general (referred to as Article 00, q.v.); or to particular
parts or Notes of the commentaries of other articles (referred to as Article 00,
N. 00). Where another article is mentioned in the text, there follows in
brackets the reference to the pertinent part/Note (q.v., N. 00). There are
also references to Sections not constituting commentaries (i.e., History of
the Convention, Issues of Customary International Law, Final Act, Status of
the Convention, and Reservations and Declarations to the Convention and
Objections Thereto).
xxxiv how to employ this commentary

4 The general bibliography compiles authors cited throughout the book.


Specialised bibliographies can be found at the beginning of each com-
mentary. Pre-ILC literature is mentioned as a rule in the rst footnote of
each commentary.
5 British English spelling has been used throughout the book (including the
texts of the Convention and the ILC reports), except when quoting State
representatives, courts, ILC members and authors directly.
Reference to the Court refers to the International Court of Justice; the
Permanent Court is its predecessor, i.e., the Permanent Court of Inter-
national Justice. As a rule, numbers are spelled out up to twelve, as from
13 gures are employed (e.g., Article 64 was adopted by 84 votes to eight,
with 16 abstentions; q.v., N. 1).
Issues of customary international law

CONTENTS
Paras.

A. Introduction ...................................................................................... 1
B. Formation and Identification of Customary Law ........................... 2
1. What Constitutes State Practice?........................................................ 2
a) Notion of State Practice .............................................................. 2
b) Written Texts (Treaties etc.) as State Practice? ............................ 4
c) State Practice qua Contractual Obligation .................................. 5
2. Material Requirements of Customary Law ....................................... 7
a) General Practice .......................................................................... 7
b) Dissenting States ......................................................................... 8
c) Passive Conduct .......................................................................... 11
d) Uniformity and Consistency of Practice .................................... 12
e) Duration of Practice .................................................................. 13
3. Opinio juris ...................................................................................... 14
C. Interrelations between Customary Law and Treaties .................. 18
1. Codication and Progressive Development ...................................... 18
a) Codication ................................................................................ 18
b) Progressive Development ............................................................ 19
c) Practice of the ILC ..................................................................... 20
d) Methods of Codication ............................................................. 21
e) Embodiment of the Law of Treaties in the Convention ............. 24
2. Generating a New Rule of Customary International Law
(Article 38 of the Convention) ........................................................ 28
3. Modication of Treaty Rules By Means of Customary Law;
Article 68, para. (c) of the ILC Draft 1964 ..................................... 30
4. Declaratory and Non-Declaratory Treaty Rules ............................... 34
D. Effects of the Declaratory Nature of Treaty Rules ................... 35
1. Eects Before a Treatys Entry Into Force ........................................ 35
2. Reservations and Customary Law .................................................... 36
a) Admissibility ............................................................................... 36
b) Reservation Clauses ..................................................................... 39
c) Applicable Law ........................................................................... 41
d) Indirect Eects of Reservations upon
Underlying Customary Law ........................................................ 42
2 issues of customary international law

3. Inuence of Customary and Treaty Rules on the


Interpretation of Each Other ........................................................... 43
a) Inuence of Customary Law on the Treaty Text ........................ 43
b) Inuence of the Treaty Text on Customary Law ........................ 45
4. Subsequent Changes in the Treaty rgime ........................................ 46
E. Provisions on Customary Law in the Convention and
in ILC Drafts ...................................................................................... 49
F. The Convention as Customary Law ................................................. 52
1. Introduction ..................................................................................... 52
2. General Statements on the Declaratory Character ........................... 56
a) Statements in the Convention Itself ........................................... 56
b) ILC ............................................................................................. 57
c) State Practice ............................................................................... 59
d) Courts and Doctrinal Writings ................................................... 61
3. Appreciation ..................................................................................... 62

Selected Literature:

A-C
M. Akehurst, Custom as a Source of International Law, BYBIL 47 (1974/75) 1 ; Id.,
The Hierarchy of Sources of International law, ibid. 273 ; J.A. Barberis, Rexions sur
la coutume internationale, AFDI 36 (1990) 9 ; R.R. Baxter, Treaties and Custom, RC
129 (1970 I) 25 ; R.Bernhardt, Custom and Treaty in the Law of the Sea, RC 205
(1987 V) 247 ; Id., Customary International Law, EPIL 1 (1992) 898 ; Id., Customary
International Law: New and Old Problems, in: Thesaurus Acroasium XIX (1992), Sources
on International Law 201 ; A. Bleckmann, Die Praxis des Vlkergewohnheitsrechts als
konsekutive Rechtsetzung, in: R. Bernhardt et al. (eds.), Vlkerrecht als Rechtsordnung.
Internationale Gerichtsbarkeit. Menschenrechte. Festschrift fr H. Mosler (1983) 89 ;
Id., Grundprobleme und Methoden des Vlkerrechts (1982); M. Bos, The Identication of
Custom in International Law, GYBIL 25 (1982) 9 ; I. Brownlie, Some Problems in the
Evaluation of the Practice of States as an Element of Custom, in: Studi di diritto interna-
zionale in onore di G. Arangio-Ruiz (2004) 313 ; C.L. Carr/G.L. Scott, Multilateral
Treaties and the Environment: A Case Study in the Formation of Customary International
Law, Denver JILP 27 (1999) 313 ; C.M. Charlesworth, Customary International Law
and the Nicaragua Case, Australian YBIL 11 (19841987) 1 ; J.I. Charney, International
Agreements and the Development of Customary International Law, Washington LR 61
(1986) 971 ; Id., The Persistent Objector Rule and the Development of Customary
International Law, BYBIL 56 (1985) 1 ; B. Cheng, Custom: The Future of State Practice in
a Divided World, in: R.St.J. Macdonald/R.M. Johnston (eds.), The Structure and Process
of International Law: Essays in Legal Philosophy, Doctrine and Theory (1983) 513 ; D.
Colson, How Persistent Must the Persistent Objector Be? Washington LR 61 (1986) 957 .

D-L
A.A. dAmato, Trashing Customary International Law, AJIL 81 (1987) 101 ; G.M.
Danilenko, Law-Making in the International Community (1993); Id., The Theory
of International Law, GYBIL 31 (1988) 9 ; G.E. do Nascimento e Silva, Treaties
as Evidence of Customary International Law, in: International Law at the Time of
Its Codication, Essays in Honour of R. Ago (1987) 387 ; O. Elias, The Nature
of the Subjective Element in Customary International Law, ICLQ 44 (1995) 501 ;
issues of customary international law 3

S. Estreicher, Rethinking the Binding Eect of Customary International Law, Virginia


JIL 44 (2003) 1 ; J. Evensen, Working Methods and Procedures in the Third United
Nations Conference on the Law of the Sea, RC 199 (1986 IV) 415 , L. Ferarri Bravo,
Mthodes de recherche de la coutume internationale dans la pratique des Etats, RC 192
(1985 III) 233 ; J.K. Gamble, The Treaty/Custom Dichotomy: An Overview, Texas ILJ
16 (1981) 305 ; P. Haggenmacher, La doctrine des deux lments du droit coutumier
dans la pratique de la Cour internationale, RGDIP 90 (1986) 5 ; R.Y. Jennings, What
is International Law and How Do We Tell it When We See it? SJIR 37 (1981) 59 ;
E. Jimnez de Archaga et al., The Classical Sources of International Law Revisited, in:
A. Cassese/J.H.H. Weiler (eds.), Change and Stability in International Law-Making (1988)
1 ; J. Kammerhofer, Uncertainty in the Formal Sources of International Law: Customary
International Law and Some of Its Problems, EJIL 15 (2004) 523 ; F.L. Kirgis, Custom
on a Sliding Scale, AJIL 81 (1987) 146 ; R. Kolb, Selected Problems in the Theory of
Customary International Law, NILR 50 (2003) 119 ; N. Kontou, The Termination and
Revision of Treaties in the Light of New Customary International Law (1994); H. Lau,
Rethinking the Persistent Objector Doctrine in International Human Rights Law, Chicago
JIL 6 (2005) 495 ; I.M. Lobo de Souza, The Role of State Consent in the Customary
Process, ICLQ 44 (1995) 521 .

M-R
J.B. Maclane, How Late in the Emergence of a Norm of Customary International
Law May a Persistent Objector Object? International Law Students Association Journal
of International Law 13 (1989) 1 ; J.G. Mahinga, Lopposabilit des normes et actes
juridiques en droit international, Revue DIDC 71 (1994) 301 ; K. Marek, Thoughts
on Codication, ZaRV 31 (1971) 489 ; M. Mendelson, State Acts and Omissions
as Explicit or Implicit Claims, ILA Report of the 65th Conference (1992) 370 ; Id.,
The International Court of Justice and the Sources of International Law, in: V. Lowe/
M. Fitzmaurice, Fifty Years of the International Court of Justice. Essays in Honour of Sir
Robert Jennings (1996) 63 ; Id., The Subjective Element in Customary International
Law, BYBIL 66 (1995) 177 ; Th. Meron, The Geneva Conventions as Customary Law,
AJIL 81 (1987) 348 ; F.L. Morrison, Legal Issues in the Nicaragua Opinion, AJIL 81
(1987) 160 ; R. Mllerson, The Interplay of Objective and Subjective Elements in
Customary Law, in: K. Wellens (ed.), International Law: Theory and Practice. Essays
in Honour of Eric Suy (1998) 161 ; G. Norman/J.P. Trachtman, The Customary
International Law Game, AJIL 99 (2005) 541 ; A. Pearanda, La costumbre en el
derecho internacional (1988); R.E. Piza Escalante, La opinio juri)s como fuente autnoma
del Derecho internacional, Anuario Hispano-Luso-Americano de Derecho Internacional 8
(1987) 131 ; W.M. Reisman, The Cult of Custom in the Late 20th Century, California
WILJ 17 (1987) 133 ; A.E. Roberts, Traditional and Modern Approaches to Customary
International Law: A Reconciliation, AJIL 95 (2001) 757 .

S
Sassli, Bedeutung einer Kodikation fr das allgemeine Vlkerrecht mit besonderer
Beachtung der Regeln zum Schutze der Zivilbevlkerung vor den Auswirkungen von
Feindseligkeiten (1990); Id., Bedeutung von t) ravaux prparatoire)s zu Kodikationsvertrgen
fr das allgemeine Vlkerrecht, ZRVR 41 (1990) 109 ; O. Schachter, Entangled
Treaty and Custom, in: Y. Dinstein/M. Tabory (eds.), International Law at a Time of
Perplexity. Essays in Honour of Sh. Rosenne (1989) 717 ; U. Scheuner, Internationale
Vertrge als Elemente der Bildung von vlkerrechtlichem Gewohnheitsrecht, in:
W. Flume et al. (eds.), Festschrift F.A. Mann (1977) 409 ; Th. Schweisfurth, Das
Vlkergewohnheitsrechtverstrkt im Blickfeld der sowjetischen Vlkerrechtslehre, GYBIL
30 (1987) 36 ; Id., The Inuence of the Third United Nations Conference on the Law of
4 issues of customary international law

the Sea on International Customary Law, ZaRV 43 (1983) 566 ; G.L. Scott, Multilateral
Treaties and the Formation of Customary International Law, Denver JILP 25 (1996) 71 ;
G.L. Scott/C.L. Carr, Multilateral Treaties and the Formation of Customary International
Law, ibid. 25 (1996) 71 ; Id., The International Court of Justice and the Treaty/Custom
Dichotomy, Texas ILJ 16 (1981) 361 ; J.K. Setear, Treaties, Custom, Iteration, and
Public Choice, Chicago JIL 5 (2005) 715 ; I. Sinclair, The Impact of the Unratied
Codication Convention, in: A. Bos/H. Siblesz (eds.), Realism in Law-Making. Essays on
International Law in Honour of W. Riphagen (1986) 211 ; L.B. Sohn, Unratied Treaties
as a Source of Customary International Law, ibid. 231 ; I. Sousa, Direito internacional
costumeiro (2001); T.L. Stein, The Approach of the Dierent Drummer: The Principle of
the Persistent Objector in International Law, Harvard ILJ 26 (1985) 457 ; E.T. Swaine,
Rational Custom, Duke LJ 52 (2002) 559 ; T. Treves, Appunti sullinuenza sull diritto
consuetudinario della Terza Conferenza delle Nazioni Unite sul diritto del mare, in: Studi
in onore di G.Sperduti, Milano 1984, 333 .

T-W
H. Torrione, Linuence des conventions de codication sur la coutume en droit inter-
national public (1989); P.R. Trimble, A Revisionist View of Customary International
Law, UCLALR 33 (1986) 665 ; D.F. Vagts, International Relations Looks at Customary
International Law: A Traditionalists Defence, EJIL 15 (2004) 1031 ; E.W. Vierdag,
Some Problems Regarding the Scope of International Instruments on the Law of Treaties,
AVR 23 (1985) 409 ; A.M. Weisburd, Customary International Law: The Problem of
Treaties, Vanderbilt JTL 21 (1988) 1 ; K. Wolfke, Custom in Present International
Law, 2nd ed. (1993).

A. INTRODUCTION

1 Various issues of customary law arise in the interpretation and application


of the Convention. The present chapter aims at bringing the relevant aspects
together.1 As such, the chapter complements the commentaries on various
Convention provisions. In particular, it provides the starting point for the
section Customary Basis in the commentary of each Article.

B. FORMATION AND IDENTIFICATION OF CUSTOMARY LAW

1. What Constitutes State Practice?

a) Notion of State Practice


2 State practice is the raw material of customary law. The constituent elements
of State practice are, therefore, of considerable relevance in establishing a
customary rule. There is some disagreement as to whether State practice

1
This section is based on Villiger, Manual passim.
issues of customary international law 5

should consist merely of concrete actions, or whether it may also include


abstract verbal (i.e., written or oral) statements of State representatives, or
their votes, e.g., at diplomatic conferences or in the Sixth Committee of
the UN General Assembly. In particular, there is a certain apprehension
at the notion that one body or conference could make law.2
This study proceeds from a broader concept of State practice,3 which 3
includes in particular the statements of State representatives. This view is
reected in the Courts case-law.4 A majority of writers regularly refer to

2
See Judge Reads dissenting opinion in the Fisheries (UK/Norway) Case, ICJ Reports
1951 191 ([c]ustomary law is the generalization of the practice of States. This cannot
be established by citing cases where coastal States have made extensive claims . . . Such
claims may be important as starting points, which, if not challenged, may ripen into
historic title in the course of time . . . The only convincing evidence of State practice is
to be found in seizures, where the coastal State asserts its sovereignty over the waters in
question by arresting a foreign ship); Thirlway, International Customary Law 57 f (the
fact that the practice is against interest gives it more weight than the mere acceptance
of a theoretical rule in the course of discussion by State representatives at a conference,
and considerably more weight than the assertion of such a rule . . . [The] occasion of
an act of State practice contributing to the formation of custom must always be some
specic dispute or potential dispute. The mere assertion in abstracto of the existence
of a . . . legal rule is not an act of State practice); Lang, Le Plateau continental de la
Mer du Nord 93, has warned that if statements constituted State practice, States would
hesitate to make comments at conferences so as to avoid being engags dnitivement
par leurs prises de position; Cassese quotes a member of the US Judge Advocates
Oce: State practice on humanitarian law and the laws of warfare is the practice of
the battleeld . . . You do not want to pay too much attention to the ocial statements
made in the nice relaxed atmosphere of New York or Geneva. It is we who are engaged
in the battle who by our behaviour can show whether our respective States consider that
a particular rule of international law is, or is not, binding, has, or has not, emerged;
Cassese/Weiler 24; Roberts, AJIL 95 (2001) 789, for whom it is not feasible to
include paper practice.
3
Tomuschat, RC 241 (1993 IV) 277 (consent to an international obligation can display
the most diverse features).
4
See the Military and Paramilitary Activities (Nicaragua/USA) Case, ICJ Reports 1986
100, para. 189 ([a] further conrmation for the validity as customary international law
of the principle of the prohibition of the use of force expressed in Article 2, paragraph
4, of the Charter of the United Nations [lies] in the fact that it is frequently referred
to in statements of State representatives as being not only a principle of customary
international law but also a fundamental or cardinal principle of such law); the Court
then referred to other written texts, e.g., resolutions of the UN General Assembly, con-
stitutions of international organisations and treaties when establishing the customary
nature of a norm, ibid. 104, para. 196 f, 107 para. 203, and 111, para. 212. In the Gulf
of (USA/Canada) Case the Court conrmed the impact of UNCLOS III on pre-existing
customary law, ibid. 1984 294, para. 94. In the Nuclear Weapons Advisory Opinion, the
Court examined the conditions of adoption of a resolution in order to establish its
normative character, ibid. 1996 26, para. 70.
6 issues of customary international law

abstract verbal acts when establishing the existence of a customary rule.5


A number of reasons militate against the narrow view described above
(N. 2), inter alia:
(i) The term practice (as per Article 38 of the ICJ-Statute) is suciently general
to cover any act or behaviour of a State, and a narrower interpretation would not
do justice to the term; (ii) traditional instances of State practice such as opinions of
legal advisors, diplomatic notes, or instructions to State representatives, may well be
equally abstract and verbal. Indeed, even so-called factual practice contains, in many
cases, an abstract statement by the State in question on the applicable law;6 (iii) the
restrictive view on State practice has not accommodated suciently the immense
changes of the past 50 years in the State community regarding its organisation
and multilateral treaty-making processes. For most members of that community,
the UN and similar bodies have become the most important fora where they can
express themselves collectively or individually; (iv) the conditions for the formation
of customary law are such that one instance of practice, or a few instances on one
occasion, cannot create law. Rather, a qualied series of instances is required, and
statements at a conference would lose their value if not followed by uniform and
consistent practice: (v) the abundant and easily accessible records of the UN, the
ILC and diplomatic conferences render obsolete problems formerly associated with
the paucity or unavailability of State practice; and last, but not least, (vi) the above
authorities cannot support their views on State practice with State practice or with
recent judicial decisions.

b) Written Texts (Treaties etc.) as State Practice?


4 A further question concerns the value of texts such as ILC drafts, resolu-
tions, draft treaties, or treaties which have been adopted, signed or have
entered into force.7 It is submitted that it is not the written text which
contributes to customary law, but those instances where States apply, refer
to or vote upon those rules in concrete cases.8 When the customary rule
has eventually developed, the written text may reect, or provide evidence
of, the customary rule.

5
See, e.g, Jimnez de Archaga, Cassese/Weiler 2; Bernhardt, RC 205 (1987 V) 266 f,
Sassli, Bedeutung 136 ; Bos, GYBIL 25 (1982) 22 f, 30; Sloane, BYBIL 58 (1987)
72 f, Evensen, RC 199 (1986 IV) 502 f; Mllerson, Essays Eric Suy 162 .
6
Bleckmann, Festschrift H. Mosler 90 , and passim.
7
Akehurst, BYBIL 47 (1974/75) 43, has no diculty in regarding treaties as State
practice. But State practice, in order to give rise to customary law, must be accompanied
by opinio juris.
8
Jennings, SJIR 37 (1981) 68, has pointed out that in the Continental Shelf (UK/
France) Arbitration (1977), the Tribunal barely analysed the great body of bilateral State
agreements put before it: [this] was eminently sensible. It would be absurd to try to
arrive at the general law of continental shelf boundaries by looking at these agreements
for usage and opinio juris; per contra Aust, Modern Treaty Law 11 ([a]n accumulation
of bilateral treaties on the same subject, such as investment, may in certain circumstances
be evidence of a customary rule).
issues of customary international law 7

c) State Practice qua Contractual Obligation


The signicance of State practice qua treaty-based contractual obligation 5
on the formation of customary law as an expression of opinio juris, is, as
conrmed by the Courts case-law, diminished for three reasons:9
(i) States may enter into a treaty for opposing reasons, i.e., either because there
already existed identical customary rules, or, on the contrary, because they intended
to abrogate inter se in the treaty any non-identical customary rules on the particular
matter; (ii) acceptance of a treaty as customary law would involve recognition of an
indeterminate number of rules contained therein. Yet, in order to be eective, an
expression of opinio juris will be directed towards a concrete legal rule; (iii) opinio
juris embodies the conviction that the conduct in question is based upon customary
law. By contrast, ratication and accession are the means by which a State expresses
its consent to be bound by a treaty (Article 11, q. v.). A State ratifying a treaty is,
at that stage, concerned rst and foremost with its contractual obligations and not
with any conviction vis--vis a customary rule.

For the signature or ratication of a treaty to inuence the formation of 6


customary law, the opinio juris will have to be demonstrated beyond mere
contractual obligation.10
Such cases are conceivable, e.g., if, upon acceptance, States maintain that in their
view the treaty rules were also (or in any event) customary, or if parties to a treaty
applied its rules towards non-parties or towards other parties before the treatys entry
into force. After entry into force, States may maintain that they adhered to a treaty
rule on account of the customary rule embodied therein.

2. Material Requirements of Customary Law

a) General Practice
The formation and existence of a customary rule requires at the outset 7
general State practice as mentioned in Article 38, subpara. 1(b) of the
ICJ-Statute. This condition refers to the number of States which must,

9
In the North Sea Cases the Court stated: over half the States concerned . . . were or shortly
became parties to the [1958 Geneva Continental Shelf ] Convention, and were there-
fore presumably . . . acting actually or potentially in the application of the Convention.
From their action no inference could legitimately be drawn as to the existence of a rule
of customary international law, ICJ Reports 1969 43, para. 76. In the Military and
Paramilitary Activities (Nicaragua/USA) Case the Court found that [w]here two States
agree to incorporate a particular rule in a treaty, their agreement suces to make that
rule . . . binding upon them; but in the eld of customary international law, the shared
view of the Parties as to the content of what they regard as the rule is not enough,
ICJ Reports 1986 98, para. 184.
10
See the apt distinction made by Cheng, in: B. Cheng (ed.), International Law: Teaching
and Practice (1982) 224 f, between opinio juris and opinio obligationis conventionalis;
also Weisburd, Vanderbilt JTL 21 (1988) 25.
8 issues of customary international law

either actively or passively, contribute towards the customary rule. The


term general indicates that common and widespread practice among
many States is required.11 Such general practice may be active, i.e., States
expressly or implicitly adhere to, or dissent from, a customary rule, or
passive (N. 11), i.e., they do nothing.

b) Dissenting States
8 Not all active practice will adhere to a customary rule. When certain pat-
terns of practice emerge, States confronted with the opportunity may wish
to diverge from such practice. They can do so expressly in their statements
or votes (N. 23), or by means of protests, or implicitly by abstaining from
practice or by adhering to a dierent practice.
9 States may dissent from a customary rule from its inception onwards. The
feasibility of such dissent was acknowledged by the Court in the Fisheries
(UK/Norway) Case.12 Thus, a persistently objecting State is not bound by
the eventual customary rule if it fulls two conditions:
(i) the objection must have been maintained from the early stages of the rule onwards,
up to its formation, and beyond; (ii) the objection must be maintained consistently,
given that the position of other States, which may have come to rely on the position
of the objector, has to be protected.

10 A second situation concerns States dissenting from a customary rule after


its formation. Their position is dicult to maintain, since other States may
have come to rely on the subsequent objector having originally conformed
to the rule. General customary law is binding on all States and cannot, in
the words of the Court, be the subject of any right of unilateral exclusion
exercisable at will by any one of (the States) in its own favour.13 The sub-
sequent objector digresses from, and possibly violates, the customary rule.
In fact, as the Court pointed out in the Nicaragua Case, inconsistent State
practice would actually conrm the existence of customary international
law.14 Still, large numbers of subsequent objectors, even if their actions
amounted to breaches of obligation, may lead to desuetude or modica-
tion of the original rule.

11
See the North Sea Cases, ICJ Reports 1969 42, para. 73; on specially aected States,
see Tomuschat, RC 241 (1993 IV) 280 f.
12
ICJ Reports 1951 131, 138 (consistently and uninterruptedly); Tomuschat, ibid.
284 .
13
North Sea Cases, ICJ Reports 1969 38 f.
14
Military and Paramilitary Activities (Nicaragua/USA) Case, ICJ Reports 1986 98, para. 186.
issues of customary international law 9

c) Passive Conduct
Passive conduct signies that States do nothing, i.e., neither accept, nor 11
dissent from, the rule. If qualied (in particular if a State knew about the
circumstances), such silence can be considered as acquiescence on which
other States may come to rely. The passive State may then be precluded
from subsequently contesting its own position. Such tacit acceptance
(N. 7) constitutes part of the general practice required for the formation
of a customary rule which, once it has come into existence, will also bind
inactive States.

d) Uniformity and Consistency of Practice


As an additional requirement, the Court has stipulated the uniformity and 12
consistency of the practice in question.15 The relevant instances of State
practice will apply or refer to (and thereby express) the same customary
rule. A substantial, virtual uniformity or consistency of practice suces.

e) Duration of Practice
It transpires from the North Sea Cases16 that the duration of practice is a 13
relative requirement, and that customary law may come into being within
a comparatively short space of time. The reasons herefor are seen in the
quickening pace of international relations, technological progress and social
change, and in improvements in communications between States.
The functions of constant practice have to be viewed in the context of the forma-
tive process of customary law as a whole: (i) duration of practice is necessary to
distinguish consistent from inconsistent practice (N. 12), and to enable the content
of the customary rule to crystallise; (ii) duration is required to enable other States
to become aware of the practice, to respond thereto, and to monitor whether other
States react similarly. Duration alone enables a certain stability of practice upon
which States may come to rely; (iii) constant practice is one test as to whether or
not States engage in such conduct out of a sense of legal conviction. In this light,
the necessary duration of practice would depend mainly on the generality and con-
sistency of practice.

3. Opinio juris
Opinio juris sive necessitatis is the conviction of a State that it is following 14
a certain practice as a matter of law and that, were it to depart from that
practice, some form of sanction would, or ought to, fall on it.17 The opinio
has to concern a concrete norm.18 General or vague formulations are less

15
See the Nicaragua Case, ibid.; the North Sea Cases, ICJ Reports 1969 43, para. 74.
16
ICJ Reports 1969 42, para. 73, and 43, para. 74.
17
Ibid. 44, para. 77; Brierly/Waldock, The Law of Nations 59.
18
ICJ Reports 1969 43 f, para. 76; see also the Military and Paramilitary Activities (Nica-
ragua/USA) Case, ICJ Reports 1986 109, para. 207, where it was found that statements
10 issues of customary international law

eective. Moreover, the opinio will have regard to the rules general bind-
ing force erga omnes, and not to one States specic relations with other
States.19
15 The North Sea Cases conrm that a customary rule requires both material
practice and opinio juris, and that there is a close anity between the two.
In particular, State practice should show a general recognition that a rule
of law is involved.20 From this it can be inferred that the opinio has to
be widespread (rather than concern only a few States), but that it need
not be found in every State, or in particular States (except in specially
aected States).
16 The express statement by a State that a particular rule is obligatory (or
customary) furnishes evidence as to the States legal conviction. A similar
result is achieved if a State non-party engages in practice and thereby
invokes a treaty rule. The diculties of ascertaining opinio juris have been
mitigated in the context of the UN drafting process (N. 3). Here, States
may expressly or implicitly disclose their conviction that a rule is obliga-
tory (or codicatory).21 A vote cast in favour of a rule indicates a States
legal conviction, just as large majorities may serve as one indicator of a
communis opinio juris.
17 This view of opinio juris, examined together with the requirement of general
State practice as well as the implications of passive conduct, suggests that
the basis of the binding character of customary law arises from the general
consensus of States, i.e., from the communis opinio that a rule has passed
into the general corpus of international law22 and that consuetudo, sicut jus
accepta, est servanda. The essential dierence from a contractual obligation
derives from the fact that customary law requires general agreement, not
unanimity of will.

of internal policy [rather than] an assertion of rules of existing international law did
not suce to demonstrate the opinio.
19
See the North Sea Cases, ICJ Reports 1969 41, para. 71.
20
Ibid. 43, para. 74 (italics added); see also 44, para. 77.
21
See the Military and Paramilitary Activities (Nicaragua/USA) Case, ICJ Reports 1996 99 f,
para. 188, whereby consent to a UN General Assembly resolution may be understood
as an acceptance of the validity of the rule or set of rules declared by the resolution.
22
The North Sea Cases, ICJ Reports 1969 41, para. 71.
issues of customary international law 11

C. INTERRELATIONS BETWEEN CUSTOMARY LAW AND TREATIES

1. Codication and Progressive Development

a) Codication
Codication signies the transformation of an existing rule of international 18
law, lex lata, into the written form; of jus non-scriptum into jus scriptum.23
In itself, codication constitutes neither a formal source of law nor of
obligation, and has no binding force per se. In the light of Article 38, para.
1 of the ICJ-Statute, the normative material for codication is customary
law. Codication is not limited to any particular subject and can embrace
any eld of customary law.

b) Progressive Development
Progressive development may be dened as the writing down of new rules 19
(lex ferenda).24 Where these new rules no longer correspond to pre-existing
customary law, progressive development can also mean substantial alteration
or the complete reform of existing rules.

c) Practice of the ILC


As a rule, the International Law Commission (ILC) has refrained from 20
determining whether the provisions of its drafts fall into the category of
progressive development or codication, and it regularly maintains that its
eorts involve both categories.25
In respect of the ILC Draft of 1966 on the law of treaties the ILC found that its work
[constituted] both codication and progressive development of international law in
the sense in which those concepts are dened in Article 15 [of the ILC-Statute].26
Indeed, the Convention itself, in its seventh preambular para. (Preamble, N. 14),
refers without further distinction to the codication and progressive development
of the law of treaties achieved in the present Convention.

23
Article 15 of the ILC-Statute denes codication as the more precise formulation
and systematisation of rules of international law in elds where there already has been
extensive State practice, precedent and doctrine. See generally Kohen, RGDIP 104
(2000) 577 .
24
Article 15 of the ILC-Statute denes progressive development as the preparation of
draft treaties on subjects which have not yet been regulated by international law.
25
On the work of the ILC regarding the Convention, see History of the Convention
(N. 213).
26
YBILC 1966 II 177, para. 35 ( footnotes omitted ).
12 issues of customary international law

d) Methods of Codication
21 A separate question arises as to the method or formthe vehicle as it
wereto accomplish jus scriptum.27 International law provides for three
methods: a code of normative rules (N. 22); a resolution of an interna-
tional body, e.g., the UN;28 and a treaty (N. 23). All three methods share
the written element. Their dierences lie in the binding nature of their
content.
22 A code is a written statement of rules (or principles) often endowed with
considerable scientic authority. What, if any, binding force a code may
have is derived from other sources of law.29 Thus, code rules which are
codicatory set forth existing customary law. If a code rule constitutes
progressive development, however, it creates a new rule without binding
force qua customary law and thus remains a priori ineective.30 The primary
scope of a code is, hence, codication.
Typically, ILC Drafts, including those on the Convention (History of the Convention,
N. 212) constitute codes. Treaties in force also amount to codes as regards non-
parties, since the legal eects of treaties, if any, towards third States are solely of a
customary nature. A fortiori, this remains true for treaties which have not entered
into force.31

23 Treaties constitute an independent source of (contractual) obligation in


international law. As a result, treaty rules constituting progressive devel-
opment obtain the necessary binding (contractual) force. To accomplish
codication by means of a treaty is to add to the validity of a customary
rule a contractual obligation. There are, then, two rules with binding force:
the codicatory treaty rule; and the underlying customary rule. Although
they may possess identical contents, each is separate and independent from
the other. As a result, treaty texts may oer evidence of a customary rule.
Like codes (N. 22), such texts merely reect, but (on account of the inde-
pendence of sources) do not actually constitute, the underlying customary
rule, the existence of which depends on the conditions of State practice and
opinio juris (N. 717) and which does not require an additional contractual
basis for its binding force.

27
R.Y. Jennings, The Progress of International Law, BYBIL 24 (1947) 303; Kohen,
RGDIP 104 (2000) 580 .
28
Villiger, Manual N. 183 .
29
W. Kgi, in: K. Strupp/H.-J. Schochauer (eds), Wrterbuch des Vlkerrechts II
(1966) 230: es fehlt die . . . rechtlich verpichtende Wirkung.
30
See the North Sea Cases, ICJ Reports 1969 23: if there is such a rule, it must draw its
legal force from other factors than the existence of these advantages, important though
they may be.
31
Wetzel/Rauschning 18.
issues of customary international law 13

e) Embodiment of the Law of Treaties in the Convention


Occasionally, diculties have been predicted from the point of view of 24
sources if the law of treaties was to be codied by means of a treaty rather
than of a code (N. 22). Objections have been raised in particular as regards
the basis of legal obligation.
Fitzmaurice embodied his reports on the law of treaties in a code because it [seemed]
inappropriate that a code on the law of treaties should itself take the form of a treaty;
or rather, it [seemed] more appropriate that it should have an independent basis32
(History of the Convention, N. 4). Similarly, an observation by the Austrian Government
to the ILC in 1965 pointed out that there would be no way of distinguishing [the
later Vienna Convention] from other multilateral treaties to which, nevertheless, it
would always thereafter be applicable.33

In reply, it can be argued that domestic law may equally provide for a 25
statute on the form and promulgation of statutes, or individuals may
enter a contract to regulate future contracts inter se. On the international
level, the contractual obligation is independent of both customary law
and other treaties, while guaranteeing the binding force of the new rules
it embodies. The Convention is residual, the parties may at any time enter
a subsequent agreement which, qua lex posterior, may abrogate or modify
the Convention. Indeed the Convention has organised its relationship to
other treaties along these lines in Article 30 (q.v.) and by establishing a
presumption of non-retroactivity (Articles 4 and 28, q.v.).
Similarly, it has been maintained that the Convention itself can only be 26
governed by antecedent (possibly dierent) rules of customary law and not
by its own provisions.
Srensen observed in the context of the Havana Convention of 1928 that ([t]he
question, whether Article 18 can be applied to the convention of which it is itself
a part . . . must probably be answered in the negative in conformity with the general
principle of logic that a statement as to the validity or invalidity of a logical proposi-
tion cannot be applied to itselfa principle which, like all other principles of logic,
must be observed in all legal interpretation.34 At the Vienna Conference on the Law

32
YBILC 1956 II 107. See also Fitzmaurices comments in the Sixth Committee, GAOR
14 (1958) 6th SR 610th meeting 51, para. 25: theory and practice were so inextricably
bound up with one another that the [ILC] would meet with serious drafting dicul-
ties if it chose the convention method; see also ibid. 52: the law of treaties did not
lend itself to codication consisting of a series of obligations and prohibitions . . . [a]
statement of abstract principles seemed more appropriate; see also Karl, Vertrag 358
; Havatsch/Schmahl, ZR 58 (2003) 113 ; D.F. Vagts, The United States and Its
Treaties: Observance and Breach, AJIL 95 (2001) 326.
33
Ibid. 8.
34
The Modication of Collective Treaties Without the Consent of all the Contracting
Parties, Acta Scandinavica Juris Gentium 9 (1938) 153. See Marek, ZaRV 31 (1971)
510, who, in Relations internationales 371, holds that this point is too obvious to be
emphasized.
14 issues of customary international law

of Treaties in 1968, the Greek delegation upheld this view as regards the rules on
interpretation (Article 31, q.v.): [e]ven if a treaty provided rules for the interpretation
of clauses regarding interpretation, those provisions would require to be interpreted
by means not contained in the treaty. There was a vicious circle and thus it would
be vain to set down rules about interpretation.35 Authors have maintained this view
also in respect of reservations to the Convention (Article 19, N. 8).36

27 However, self-regulatory eects are practised in all treaties containing provi-


sions, inter alia, on their own entry into force, reservations, interpretation
and termination.
The Convention was to bring to all treaties a uniform and workable set of rules in
an area where much uncertainty prevailed. It would be absurd if the Convention
should envisage for itself a dierent set of (possibly non-identical) rules on the law
of treaties. Indeed, the records of the ILC and the debates at the Vienna Conference
of 1968/1969 (History of the Convention) do not conrm these fears, and it is of
signicance that no subsequent State practice supports any dichotomy of rules. In
any event, Article 24, para. 4 provides for the application of various procedural
provisions of a treaty (and, hence, also of the Convention) as from the time of its
adoption (q.v., N. 1213).

2. Generating a New Rule of Customary International Law


(Article 38 of the Convention)
28 Generating a new rule of customary law through a treaty rule is the subject
of Article 38 (q.v.). A new customary rule arises on the basis of the treaty
rule, binding erga omnes and with the same substance as the written rule.37
Ex hypothesi this presupposes a written rule. The interaction between a
customary rule of international law and a treaty rule is not limited to any
particular stage of a treatys life. However, the treaty text itself contains eo
ipso no legislative powers. Rather, generation via treaty rules forms part
of the general theory of customary law (N. 717). As a result, generation
cannot be viewed as a short cut38 to customary law, though present con-
ditions of international organisation may contribute favourably towards an
accelerated development of customary law (Article 38, N. 7).
29 All State practice is relevant when ascertaining whether a treaty rule has
generated a customary rule, though the practice of treaty parties inter se
is less helpful, since they will thereby as a rule be invoking the treaty rule
qua contractual obligation (N. 5).

35
OR 1968 CoW 172, para. 7.
36
E.g. Sztucki, GYBIL 20 (1977) 277 .
37
See on this section the North Sea Cases, ICJ Reports l969 41 ; Akehurst, BYBIL 47
(1974/75) 49 and passim; Sassli, Bedeutung passim; Schachter, Essays Sh. Rosenne
717 ; Sohn, Essays W. Riphagen, 23l ; Torrione passim.
38
Jennings, Essays W. Friedmann 168.
issues of customary international law 15

3. Modication of Treaty Rules By Means of Customary Law;


Article 68, para. (c) of the ILC Draft 1964
Modication of a treaty rule by means of customary law implies the develop- 30
ment of new, non-identical customary rules with regard to a subject-matter
originally covered by treaty rules.39 The written rule may, accordingly,
undergo amendment or modication or even pass out of use completely.40
The Convention makes no mention of such developments, though they
subsequently played an important part in the context of UNCLOS III.
Previously, however, the ILC expressly acknowledged the process of modi- 31
cation in Article 68, para. (c) of its 1964 Draft:
Article 68
Modication of a treaty by a subsequent treaty, by subsequent practice or by customary
law.
The operation of a treaty may also be modied . . .

(c) by the subsequent emergence of a new rule of customary law relating to matters
dealt with in the treaty and binding upon all the parties.41

Like Article 38 (q.v., N. 8), Article 68, para. (c) does not indicate the scope 32
and conditions of the process of a customary rule modifying a treaty rule.
It serves as a reminder, or reservation, that such a process is possible. The
travaux prparatoires conrm this conclusion: the ILC justied deletion
of the provision by noting the complexity of the relationship between
customary law and treaties.42 An additional factor in favour of deletion
was the confusion in the ILC itself as to other unrelated issues, namely,
intertemporal matters, and the distinction between the application and the
interpretation of treaties. With few exceptions, the principle of modication
as such was not called into question in the travaux prparatoires.43 Nor has
the concept of modication itself suered from the deletion of Article 68,
para. (c). As a result, and to the extent that the concept of modication
exists qua (uncodied) customary law, it will continue to do so.

39
See on the subject Villiger, Manual N. 302 ; R. Bernhardt, Custom and Treaty in
the Law of the Sea, RC 205 (1987 V) 247 ; Kontou, passim.
40
See H.F. Kck, Ist der sterreichische Staatsvertrag obsolete? Grundstzliche berle-
gungen zur Vertragserrichtung und Vertragsendigung nach Vlkerrecht, Austrian JPIL
50 (1996) 75 .
41
YBILC 1964 II 198; see Kohen, RGDIP 104 (2000) 603; A. Vamvoukos, Termination
of Treaties in International Law. The Doctrines of rebus sic stantibus and Desuetude
(1985) 219 .
42
YBILC 1966 II 236, para. 3, 177, para. 34.
43
Kontou 139.
16 issues of customary international law

33 Importantly, this modication via customary law must be distinguished


from parties conduct qua contractual obligation which may also modify
the original treaty (though the parties conduct may eventually also lead
to a customary rule).
Article 31, subpara. 3(b) provides there shall be taken into account [when interpreting
a treaty] together with the context . . . any subsequent practice in the application of
the treaty which establishes the agreement of the parties regarding its interpretation
(q.v., N. 31). Article 38 of the ILC Draft 1966 on the Modication of treaties by
subsequent practice was not included in the Convention.44 It had gone a step further
stating that [a] treaty may be modied by subsequent practice in the application
of the treaty establishing the agreement of the parties to modify its provisions45 (see
Article 39, N. 14).
The latter provision does not a priori concern customary law. It proceeds from a
contractual obligation and focuses on the practice of States parties to a treaty, among
which parties the treaty rule may eventually be modied. The subsequent practice in
fact reects the contractual agreement of the parties. By contrast, a general customary
rule possesses binding force erga omnes and requires widespread (active or passive)
practice among States, the opinio of which must be directed towards the custom-
ary rule and not the contractual obligation. However, in their practice States may
gradually wander from interpretation and modication, as envisaged in Article 38
of the 1966 ILC Draft, to a new customary rule which is binding upon them and
modies the treaty provision erga omnes.
Article 38 of the ILC Draft 1966 (Article 39, N. 14) was previously Article 68, para.
(b) of the ILC Draft 1964 (Article 41, N. 17). Thus, it can be distinguished clearly
from Article 68, para. (c) of the same ILC Draft 1964 ( N. 31).

4. Declaratory and Non-Declaratory Treaty Rules


34 Codication and progressive development (N. 18) reect the picture at
the time of the adoption of a written instrument. Their distinction does
not accommodate the interplay of sources. Thus, codicatory rules may be
modied by new, non-identical customary law (N. 30) which no longer
reects the original customary law. New written rules may generate cus-
tomary law (N. 28) and therefore no longer qualify as progressive devel-
opment. This study, therefore, employs the notion of declaratory rather
than codicatory rules. New rules constituting progressive development
are, therefore, non-declaratory rules.

44
OR 1968 CoW 215, para. 60.
45
YBILC 1966 II 236 f; R. Kolb, La modication dun trait par la pratique subsquente
des parties. Note sur laaire relative au rgime scal des pensions verss aux fonction-
naires retraits de lUNESCO rsidant en France; sentence du 14 janvier 2003, Revue
Suisse 14 (2004) 9 .
issues of customary international law 17

D. EFFECTS OF THE DECLARATORY NATURE OF TREATY RULES

1. Eects Before a Treatys Entry into Force


The written text itself has no direct eect on customary law (N. 4), the 35
existence and binding force of which depend on conditions to be ascer-
tained elsewhere in the practice of States, Thus, if a customary rule has
been embodied in a treaty, the existence of the former will not be directly
aected by the latter (N. 5). Customary rules are binding upon all States
regardless of whether or not the latter have ratied the treaty embodying
the customary rule, i.e., even before its entry into force. Non-declaratory
rules have no such binding eect and depend for their eectiveness on
the treatys entry into force (N. 23). Article 4 (q.v., N. 3) reiterates this
principle in respect of the Convention itself, and Article 28 (q.v., N. 7) in
respect of all other treaties.

2. Reservations and Customary Law

a) Admissibility
May reservations be made to declaratory treaty rules (N. 34)? Articles 1923 36
(q.v.) concerning reservations shed little light on the topic. A number of
authors follow the Courts position in the North Sea Cases where it regarded
reservations as being incompatible with declaratory rules:46
it is a characteristic of purely conventional rules and obligations that, in regard
to them, some faculty of making unilateral reservations may, within certain lim-
its be admitted;whereas this cannot be so in the case of general or customary
law rules and obligations which, by their very nature, must have equal force for
all members of the international community, and cannot therefore be the sub-
ject of any right of unilateral exclusion exercisable at will by any one of them
in its own favour. . . . [N]o reservation could release the reserving party from
obligations of general maritime law existing outside and independently of the
convention.47

A more recent view, expressed in the Nicaragua Case, sees no direct impact 37
of reservations on underlying customary law.
The Court was confronted with the US treaty reservation according to which the
Courts jurisdiction would be excluded in respect of the US in case of disputes

46
See, inter alia, Marek, ZaRV 31 (1971) 497; Akehurst, BYBIL 47 (1974/75) 48
at n. 3; Imbert, Les rserves aux traits multilatraux 244; Jennings, in: Mlanges P.
Reuter 352. See also the General Comment of the Human Rights Committee, ILM
34 (1995) 842: provisions in the Covenant that represent customary international
law . . . may not be the subject of reservations.
47
ICJ Reports 1969 38 f, para. 63; see Judge ad hoc Srensens diss. op., ibid. 248.
18 issues of customary international law

arising under a multilateral treaty, unless all parties to the treaty aected by the
decision are also parties to the case before the Court.48 The Court made no dis-
tinction between a classical reservation to a treaty and one to its jurisdiction
when it concluded that a reservation had no impact on underlying customary law:
the jurisdiction conferred upon it by the United States declaration of acceptance of
jurisdiction . . . does not permit the Court to entertain these claims. It should however
be recalled that . . . the eect of the reservation . . . is conned to barring the applica-
bility of the United Nations Charter and Organization of American States Charter
as multilateral treaty law, and has no further impact on the sources of international
law which Article 38 of the Statute requires the Court to apply. . . .The fact that the
above-mentioned principles [i.e. on the use of force, non-intervention etc.] have been
codied or embodied in multilateral conventions does not mean that they cease to
exist and to apply as principles of customary law, even as regards countries that are
parties to such conventions.49

38 It is submitted that, in view of the lack of any hierarchy of sources in


international law, reservations have no direct impact on customary law, but
are also not a priori incompatible with declaratory treaty rules.50 Customary
law is not tantamount to jus cogens! On the contractual level, parties may
at any time agree to abrogate a particular customary rule.51 They are
entitled to do so in view of the lack of hierarchy of rules. To the extent
that a States reservation on the contractual plane is accepted by another
State and thus amounts to a particular contractual relationship, the latter
will prevail over any diering customary rule inter se. The customary rule
in general, and the parties relations qua customary law with other States,
non-parties or parties (e.g., if other parties contest a reservation), remain
unaected. However, if many States agree to such a reservation, this may
have an indirect negative impact on the underlying customary rule in the
long term (N. 42).
In this light, para. 2 of Guideline 3.1.8 on Reservations to a Provision Reecting
a Customary Norm of the ILC Report 2007 appears unclear in particular as to the
continuing eects of the underlying customary rule as between the reserving and the
accepting States. Guideline 3.1.8 states:

1. The fact that a treaty provision reects a customary norm is a pertinent factor
in assessing the validity of a reservation although it does not in itself constitute
an obstacle to the formulation of the reservation to that provision.

48
ICJ Reports 1986 31, para. 42.
49
Ibid. 38, para. 56, 93, para. 174, with reference to ICJ Reports 1984 424, para. 73.
50
Sassli, Bedeutung 181 ; Danilenko, Law-Making 153 f; Schachter, Essays Sh.
Rosenne 727. On the contractual plane, this conclusion will be subject to reservation
clauses and the object-and-purpose test as in Article 19, para. (c) (q.v., N. 1214). The
North Sea Cases cited above (N. 36) appear to attribute to customary international law
the status of jus cogens.
51
ICJ Reports 1969 248.
issues of customary international law 19

2. A reservation to a treaty provision which reects a customary norm does not


aect the binding nature of that customary norm which shall continue to apply
as such between the reserving State . . . and other States . . . which are bound by
that norm.52

b) Reservation Clauses
If, contrary to the above (N. 38), it is assumed that reservations are incom- 39
patible with declaratory conventional rules, it could be argued that, if a
treaty permits or prohibits reservations to certain rules, these will constitute
non-declaratory or declaratory rules, respectively.53
This study submits, to the contrary, that a reservation clause cannot in itself 40
justify a presumption for or against the declaratory character of conventional
rules. The fact that a convention permits or prohibits reservations,54 or is
silent on the matter,55 may be attributed to considerations wholly apart
from customary law.56

c) Applicable Law
Treaty rules, and reservations thereto, cannot aect the relations of parties 41
vis--vis non-parties, or among non-parties inter se, although the relations
of these States may be governed by the customary law underlying the treaty.
By contrast, the applicable law with respect to the treaty parties depends on
the reactions of other States to the reservation (see also Articles 2021):
if another State accepts and agrees to the reservation, the treaty enters into force
subject to the reservation. If no other intention is discernible, the agreement super-
sedes inter se both the treaty and the customary rule (N. 38);57

52
YBILC 2007 II/2 88 .
53
Baxter, RC 129 (1970 I) 48. See the North Sea Cases ICJ Reports 1969 39, para. 63
(it is to be expected that when, for whatever reason, rules or obligations [of customary
law] are embodied, or are intended to be reected in certain provisions of a conven-
tion, such provisions will gure amongst those in respect of which a right of unilateral
reservation is not conferred); dierently in the Nuclear Weapons Advisory Opinion, ICJ
Reports 1996 29, para. 82, in respect of denunciation clauses.
54
Article 19, paras. (a) and (b) (q.v., N. 1011).
55
See the Court in the Reservations to Genocide Advisory Opinion, ICJ Reports 1951 22:
it could certainly not be inferred from the absence of an article providing for reserva-
tions in a multilateral convention that contracting States are prohibited from making
reservations.
56
Restrictions in the 1982 Convention on the Law of the Sea are explained by the pack-
age deals leading to its adoption. A reservation clause may be omitted so as not to
invite a multiplicity of reservations, Reservations to Genocide Advisory Opinion, ibid.
Reservations may be excluded because the drafting body regards some provisions as
essential for the operation of the treaty.
57
Article 21, para. 1 (q.v., N. 36).
20 issues of customary international law

if one party objects to the reservation, without expressing its intention to preclude
the entry into force of the treaty as a whole, the provisions to which the reservation
relates do not apply as between the two States to the extent of the reservation58
There is no mutual consent to be bound between the reserving and the objecting
Statesa fortiori not qua customary law, for which reason any underlying custom-
ary rules remain applicable both for the reserving and the objecting States. The
Continental Shelf (France/UK) Arbitration (1977) aptly illustrates this situation and
its consequences;59
if one party objects and thereby denitely expresses its intention to preclude the
entry into force of the treaty as a whole,60 the legal situation is that of two non-par-
ties, and the reserving and objecting State are bound by any underlying customary
law.

d) Indirect Eects of Reservations upon Underlying Customary Law


42 Reservations are integrated into a treaty rgime and operate primarily on
the contractual plane. Nevertheless, if States make reservations and thereby
modify or exclude a treaty rule, it can be assumed that for the same rea-
son they would equally disagree with, and wish to modify or exclude, any
identical underlying customary law. A reservation (though not a reservation
clause, N. 39) may hence be an indication of disapproval of the underlying
customary law.61 One such instance cannot aect the customary rule, but
many reservations may raise the question whether the communis opinio juris
(N. 810, 14) regarding the customary rule has been eroded.62

58
Article 21, para. 3 (q.v., N. 8).
59
ILR 54 (1979) 2 ; the Court of Arbitration interpreted the UK objection to the
French reservations as not precluding the entry into force of the 1958 Continental
Shelf Convention as a whole, ibid. 45 f, para. 44. As a result, the French reservations
rendered Article 6 of the Convention inapplicable as between the two parties to the
extent, but only to the extent of reservations, ibid. 52, para. 61. The Court thus had
recourse to customary law. It concluded, however, that [t]he rules of customary law
[led] to much the same result as the provisions of Article 6, ibid. 54, para. 65.
60
Articles 20, subpara. 4(b) (q.v., N. 1415) and 21, para. 3 (q.v., N. 8).
61
See Sassli, Bedeutung 160 f; Akehurst, BYBIL 47 (1974/75) 48; Baxter, RC 129
(1970 I) 63.
62
See Judge ad hoc Srensen in the North Sea Cases, ICJ Reports 1969 252 (reservations
made, and the objections entered against them, are relevant only in so far as the total
eect might be to disprove the thesis that Article 6, as part of the [Continental Shelf ]
Convention, has been accepted as generally binding international law); already the
Brierly Report II of 1951, YBILC 1951 II 3 f ([f ]requent or numerous reservations
by States to multilateral conventions of international concern hinder the development
of international law by preventing the growth of a consistent rule of general applica-
tion); see generally Villiger, Manual N. 411 .
issues of customary international law 21

3. Inuence of Customary and Treaty Rules on the Interpretation of


Each Other

a) Inuence of Customary Law on the Treaty Text


The question arises as to the function of a customary rule if it is identical 43
with the treaty rule. It could be argued that the customary rule is rendered
obsolete and its identication unnecessary, since the treaty parties will
primarily invoke the treaty rule qua contractual obligation, and also as the
Convention oers in Articles 31 and 32 (q.v.) rules of interpretation as a
means to extract meaning and scope from the written term.
According to Article 31, subpara. 3(c), interpretation of a treaty text will 44
take into account, inter alia, general customary law on the same subject-
matter (q.v., N. 33). The full meaning and scope of written terms may
become clear by reference to the underlying customary law: the customary
rule may supply a plausible meaning, dene the context, ll any lacunae
or conrm the interpretation of the written terms.63

b) Inuence of the Treaty Text on Customary Law


Due to the merits of jus scriptum,64 States in their practice will generally 45
adhere to the written rule and, with it, also the customary rule underly-
ing the treaty text. The conventional rule thus exerts a stabilising eect on
the underlying customary law, even as it evidences that customary rule.
Hence, the written text will be of interest to non-parties, if that is where
they perceive their customary obligations to be reected. States and other
interpreting bodies may also vary the modes of interpretation of the written
text (Article 31, N. 6, 47). As a result, the process of interpretation will
render a certain exibility also to the underlying customary law.

63
In the Continental Shelf (UK/France) Arbitration (1977) the Court held that, although
Article 6 of the 1958 Geneva Continental Shelf Convention was applicable in the Chan-
nel Islands region, [t]his does not . . . mean that . . . the rules of customary law discussed
in the North Sea Continental Shelf cases . . . [are] inapplicable in the present case . . . The
rules of customary law are a relevant and even essential means both of interpreting and
completing the provisions of Article 6, ILR 54 (1979) 75, para. 75. In the Military and
Paramilitary Activities (Nicaragua/USA) Case the Court held in respect of Article 51 of
the UN Charter: Article 51 . . . is only meaningful on the basis that there is a natural
or inherent right of self-defence, and it is hard to see how this can be other than of
a customary nature, even if its present content has been conrmed and inuenced by
the Charter. Moreover, the Charter . . . does not go on to regulate directly all aspects
of its content . . . [I]n the eld in question . . . customary international law continues to
exist alongside treaty law, ICJ Reports 1986 94, para. 176; see Jennings, SJIR 37
(1980) 62; Sassli, Bedeutung 210 f.
64
Wildhaber, EPIL 7 (1984) 493.
22 issues of customary international law

4. Subsequent Changes in the Treaty rgime


46 According to Article 43 (q.v.), customary law underlying a treaty continues
to remain binding on States even if they terminate, denounce, withdraw
from, or suspend the operation of the treaty. Article 60, para. 5 (q.v.,
N. 2324) contains a similar rule in respect of humanitarian treaties. This
result is generally acknowledged.65
47 A related issue is whether treaty clauses concerning the treatys denunciation
or termination have signicance in determining the declaratory quality of
the treaty rules.66 It is submitted that such clauses possess no signicance,
since the underlying customary law exists regardless of whether or not a
State withdraws from a convention. Indeed, certain treaties with declara-
tory rules contain denunciation clauses,67 whereas other treaties with new
rules contain no such clauses.68
48 Still, if a substantial number of States reject a treaty rule, this may indeed be
a strong indication that the opinio juris on the rule in question (N. 14) is no
longer sucient, although further evidence in the practice of States would
still be required to complete such an assessment.69

65
See the Military and Paramilitary Activities (Nicaragua/USA) Case, ICJ Reports 1986 113 f,
para. 218; also ibid. 95, para. 178, where the Court found in respect of a States right
under Article 60, subpara. 3(b) (q.v., N. 1516) to terminate or suspend the operation
of a treaty: if the two rules in question also exist as rules of customary international
law, the failure of the one State to apply the one rule does not justify the other State in
declining to apply the other rule. See also Barberis, AFDI 36 (1990) 46; Schachter,
Essays Sh. Rosenne 727; the 1967 Resolution of the Institut, Annuaire IDI 52 (1967
II) 394 , 562 (Article I/2).
66
For Thirlway, International Customary Law 94 such clauses cast grave doubt on the
declaratory status of the rules. For Verdross/Simma N. 807, it is disputed whether a
withdrawal from declaratory conventions is permissible if the convention contains no
such clause.
67
See Article 40 of the 1907 Hague Convention (IV); Article 63 of the rst, Article 62
of the second, Article 142 of the third, and Article 158 of the fourth 1949 Geneva
Conventions.
68
E.g., the 1975, 1978 and 1983 Vienna Conventions. See also the Geneva Convention
on Fishing and Conservation of the Living Resources of the High Seas of 1958.
69
In the Nuclear Weapons Advisory Opinion the Court referred to the declaratory character
of conventions despite denunciation clauses [existing] in the codication instruments
[which] have never been used, ICJ Reports 1996 29, para. 82.
issues of customary international law 23

E. PROVISIONS ON CUSTOMARY LAW IN THE CONVENTION AND IN


ILC DRAFTS

A number of Convention provisions refer directly or indirectly to, or have 49


implications for, customary law:
the seventh preambular paragraph refers to codification and progressive
development achieved in the present Convention (N. 20; see Preamble,
N. 1415);
the eighth preambular paragraph [arms] that the rules of customary international
law will continue to govern questions not regulated by the provisions of the present
Convention (original italics; see Preamble, N. 1415);
Article 3, para. (b) provides that the Convention does not aect the application of
rules set forth in the present Convention to which [parties] would be subject under
international law independently of the Convention (q.v., N. 6);
Article 4 states that the Convention only applies to treaties after its entry into force,
though this principle is without prejudice to the application of any rules set forth
in the present Convention to which treaties would be subject under international
law independently of the Convention (N. 35; Article 4, N. 35);
Article 31, subpara. 3(b) refers to the parties subsequent practice in the interpretation
of a treaty which may gradually bring about a new customary rule (N. 33; Article
31, N. 23);
for Article 31, subpara. 3(c), the interpretation of a treaty shall take into account
any relevant rules of international law applicable in the relations between the par-
ties which also includes customary law (N. 43; Article 31, N. 25);
Article 38 envisages rules in a treaty becoming binding on third States through
international custom (N. 28; see Article 38, q.v.);
Article 43 concerns a States obligations, upon the invalidity, termination and sus-
pension of the operation of a treaty, imposed by international law independently
of a treaty (N. 46; see Article 43, q.v.);
Article 60, para. 5 constitutes a special application of Article 43 in respect of
humanitarian treaties (q.v., N. 2324).

Article 68, para. (c) of the ILC Draft 1964, not embodied in the later 50
Convention, envisaged the possibility of modication of a treaty . . . by
customary law (N. 31). (Conversely, Article 38 of the ILC Draft 1966
concerns the modication of treaties by subsequent practice qua contractual
obligation, N. 33.)
These provisions, concerning customary law rather than the law of treaties, 51
are actually silent on the prerequisites for the formation and continuing
validity of customary law (e.g., Article 38, N. 9) which have been described
above (N. 717). They serve as saving clauses, or reminders, of the sepa-
rate existence of customary law, though they enjoy no binding force qua
contractual obligation and cannot be opposed towards the Convention
24 issues of customary international law

parties. Conversely, the customary rules contained in the Convention and


referred to in these provisions apply qua customary law to all States, i.e.,
to parties and non-parties alike.

F. THE CONVENTION AS CUSTOMARY LAW

1. Introduction
52 Throughout this study Convention articles are examined individually as to
their status in customary international law. The question arises, in addi-
tion, whether the Convention as a whole may be considered declaratory
of customary law.
53 It has been maintained that a whole treaty may, or may not, reect custom-
ary law.70 It is submitted that such statements, while indicative of general
tendencies, are less helpful since the declaratory quality has to be identied
rule by rule.71 The declaratory quality of one conventional rule cannot raise
a presumption with respect to others.72
54 Thus, recent conventions can hardly be exclusively declaratory if the draft-
ing body, in this case the ILC, expressed no such aspirations (N. 20).
Moreover, opinio juris relates to concrete rules; and the instances of State
practice constitutive of customary law are on the whole disorganised and
will hardly lead to entire and organised systems of customary rules. Indeed,
in the vast majority of cases before international courts, only single rules
are contentious.
55 In any event, if States articulate such sweeping statements, they regard
exceptions and qualications to single rules as unnecessary. In particular, it
would become more dicult for a State to maintain a position as persistent
objector vis--vis single customary rules.
Least helpful are assertions that a treaty is generally declaratory, which could mean
that the State is reserving its right to state, at a later stage, that some as yet unspeci-
ed treaty rules are non-declaratory.

70
See Akehurst BYBIL 47 (1974/75) 12 (it is common knowledge that most of the
provisions [of certain conventions] were declaratory).
71
Bernhardt, Thesaurus Acroasium 218 (it is never sucient that . . . certain rules con-
tained in a codication are accepted as customary law for holding the whole text to be
an expression of customary norms. It is necessary to scrutinize carefully the dierent
rules in the treaty).
72
Dierently the diss. op. of Judge Srensen in the North Sea Cases, ICJ Reports 1969
249.
issues of customary international law 25

2. General Statements on the Declaratory Character

a) Statements in the Convention Itself


The eighth preambular para. (Preamble, N. 14) speaks of codication and 56
progressive development in the Convention, thus assuming that some rules
are customary, others not. Various provisions presuppose that a number
of its rules were, or had become, declaratory at some stage before or after
the Conventions adoption (N. 49).

b) ILC
When the ILC commenced its work on the law of treaties, Brierly sought 57
in his 1950 Report the connement . . . to a statement of what is conceived
to be the existing law.73 Lauterpacht regarded his reports primarily as a
formulation of existing law.74 Fitzmaurice, by selecting a code to accom-
plish codication, presupposed a customary basis for the rules enunciated
in his Reports.75 (History of the Convention, N. 212).
After 1962, the Waldock and ILC Drafts introduced several new rules, 58
and ILC members expressed themselves less frequently on the declaratory
nature of the draft rules. There were a number of controversial articles,
e.g. the rules on procedure in Articles 6668 (q.v.). In 1966 Waldock
hinted that the ILC Drafts included some progressive development.76 At
the 1968/1969 Conference, now as Expert Consultant, he emphasised the
codicatory nature of the Convention.77

c) State Practice
At the 1969 Vienna Conference, nearly half the Conventions provisions 59
were adopted unanimously, and most others by vast majorities. The
Convention was nally adopted with 79 votes to one (France), with 19
abstentions (History of the Convention, N. 19; Article 85, N. 1). Thirty-six
years after its adoption, it is binding on 108 States (Status of the Convention,
q.v.).

73
YBILC 1950 II 224, para. 2, 225, para. 5.
74
YBILC 1953 II 90, para. 3; see Article 9A, ibid., and at 124.
75
YBILC 1959 II 91, para. 18.
76
It was signicant that throughout the present sessions discussion he himself had not
had occasion to consult the leading doctrinal works on the law of treaties: the whole
emphasis had been on the views which the Commission itself had reached, YBILC
1966 I/2 296, para. 12.
77
[M]any representatives at the Conference [had spoken] of the convention as essen-
tially a codifying instrument. That was the right view if the convention was regarded
essentially as a consolidating instrument which took account of dierences of opinion
but found a common agreement as to the lines to be followed in the law of treaties,
OR 1969, CoW 337, para. 77.
26 issues of customary international law

These gures may primarily be viewed qua contractual obligation (N. 5). The voting
constellations at the 1969 Vienna Conference indicate that the abstaining delegations
favoured substantial parts of the Convention but disagreed with a small number of
rules. Without doubt, these abstentions were concerned with matters attracting most
controversy at the Conference, namely participation in multilateral treaties, the provi-
sions of Part V and the judicial settlement of disputes arising in that context.

60 Since 1969 various States, parties and non-parties, have commented on


the declaratory nature of the Convention.78

d) Courts and Doctrinal Writings


61 International courts have mainly referred to individual Convention rules.79
General statements are more frequent in doctrinal writings. Some studies
have described the whole Convention as part and parcel of contemporary
international law,80 others that the Convention is codicatory for the
most part81 or that it will evolve as a whole into general international
law . . . within the not too distant future.82 Other authorities qualify the
Convention as in part declaratory and in part a deliberate exercise in pro-
gressive development.83

78
To mention a few: for the US Department of State, the Convention although not yet
in force . . . is already generally recognized as the authoritative guide to current treaty
law and practice, cited in International Lawyer 6 (1972) 430. See also the repre-
sentative of the Canadian Government (universal compendium of customary law),
CYBIL 19 (1981) 335; the Government of New Zealand in the Nuclear Tests Cases,
ICJ Pleadings 1974 II 270 (in large part declaratory); the Australian Government
in Australian YBIL 7 (1976/77) 498; the Swiss Federal Court (die vlkerrechtlichen
Regeln ber das Vertragsrecht beruhen auf Gewohnheitsrecht, welches in der Wiener
Konvention . . . kodiziert wurde), BGE 120 II 365.
79
To mention a few: the Continental Shelf (UK/France) Arbitration (1977), ILR 54 (1979),
paras. 38 ., regarding Articles 1923; the 1978 Air Transport (France/US) Arbitration,
ILR 54 (1979) 346 (Article 44); BP v. Libyan Arab Republic Arbitration, ILR 53 (1979)
332 f (Articles 26, 42, 65). See Aust, Modern Treaty Law 13 ([t]here has as yet been
no case where the Court has found that the Convention does not reect customary
law).
80
See Elias, Modern Law 5; similarly Rosenne, Homenaje Miaja de la Muela I 453;
Mosler, RC 140 (1974 IV) 114.
81
Sir Francis Vallat, The Vienna Convention on the Law of Treaties 1969, YBAAA 40
(1970) XXVII; similarly Rosenne, Law of Treaties 91; Briggs, AJIL 73 (1979) 471;
G. Barile, La structure de lordre international, RC 161 (1978 III) 9 ; M. Yasseen,
Linterprtation des traits daprs la Convention de Vienne, RC 151 (1976 III) 9, para.
1; Reuter, Introduction para. 32; Wetzel/Rauschning 11.
82
Mosler, RC 140 (1974 IV) 101.
83
Sinclair, Vienna Convention 12 ; Verdross/Simma N. 672.
issues of customary international law 27

3. Appreciation
Up to 1968 the ILC and many States regarded the Convention as combin- 62
ing elements of both codication and progressive development. The turning
point came at the 1968/1969 Vienna Conference. With the majority of
articles having been adopted with surprisingly high numbers of votes, the
delegates and, subsequently, the States in their practice came to regard the
Convention as mainly codicatory. Since 1969, States, courts and authors
have increasingly relied on the Convention, even before its entry into force,
as an authoritative guide to the customary law of treaties.
All in all, there is a certain probability that the Convention rules are 63
declaratory. The probability is higher regarding rules not embodied in Part
V. In other words: ascertainment of the declaratory quality of individual
rules will always be necessary, but, if the present trend continues, it will
become increasingly dicult to ascertain sucient inconsistencies in State
practice in order to substantiate claims as to the non-declaratory quality
of single rules.
A good example of the impact of the Convention qua customary law can be seen
in the Mutual Assistance in Criminal Matters (Djibouti/France) Case, where the
Court applied Articles 26, 27 and 31 (q.v.) towards France although the latter
had not ratied the Convention and indeed was the only State in Vienna in 1969
to vote against the Convention (History of the Convention, N. 19).84

84
ICJ Reports 2008, paras. 112 f, 124, 145.
History of the Convention

CONTENTS
Paras.

A. Introduction ..................................................................................... 1
B. Brierlys Reports (19501952) ........................................................... 2
C. Lauterpachts Reports (19531954) .................................................. 3
D. Fitzmaurices Reports (19561960) ................................................... 4
E. Waldocks Reports (19621966) ........................................................ 5
1. Election ............................................................................................ 5
2. Reports IIII (19621964) ............................................................... 6
3. Reports IVVI (19651966) ............................................................ 9
4. Appreciation ..................................................................................... 13
F. The 1968/1969 Vienna Conference on the Law of Treaties ........... 14
1. First Session of 1968 ......................................................................... 14
2. Second Session of 1969 ..................................................................... 18

Selected Literature:

H.W. Briggs, The International Law Commission (1965); O.J. Lissitzyn, Eorts to Codify or
Restate the Law of Treaties, Columbia LR 62 (1962) 1172 ; S.E. Nahlik, La Confrence de
Vienne sur le droit des traits. Une vue densemble, AFDI 15 (1969) 24 ; Sh. Rosenne, The
Law of Treaties. A Guide to the Legislative History of the Vienna Convention (1970); I. Shihata,
Le projet de loi sur les traits de la Commission du droit international, Revue Egyptienne 23
(1967) 77 ; I. Sinclair, The Vienna Conference on the Law of Treaties, ICLQ 19 (1970) 47 ;
F. Vallat, The Work of the International Law Commission. The Law of Treaties, NILR 22
(1975) 327 ; A. Watts, The International Law Commission 19491998, II (2002) 609
; R.G. Wetzel/D. Rauschning, The Vienna Convention on the Law of Treaties. Travaux
prparatoires (1978).

A. INTRODUCTION

1 This section depicts the evolution of the Convention and summarises its
travaux prparatoires, in particular the proceedings in the International Law
Commission (ILC) and at the Vienna Conference in 1968 and 1969. It
oers a general view and thus contrasts with, and enables an appreciation
of, the preparatory materials summarised in the commentaries of the various
Convention articles.
history of the convention 29

B. BRIERLYS REPORTS (19501952)

In 1949, upon establishment of the ILC, the UN Secretary Generals Survey 2


listed the law of treaties among the topics for codication.1 At its session in
1949 the Commission decided to give priority to this topic and appointed
James L. Brierly as Special Rapporteur. His rst report of 1950, containing
a draft convention with eleven articles, was perceived as the continuation of
pre-1945 eorts at the codication of the law of treaties. The ILC debated the
draft at its 1950 session, but did not reach any conclusions.2 In 1951 Brierly
presented his second report in which he modied or amended articles of his
previous report.3 After further debate, the ILC tentatively adopted on the
basis of its two texts a draft containing ten articles which it submitted to the
UN General Assembly, and requested Brierly to present a nal draft on
the topic.4 Brierly Report III was prepared for 1952; but before the session
Brierly resigned. Without discussing the report, the ILC elected Sir Hersch
Lauterpacht as successor (N. 3).5
Apart from the substantive analyses, Brierlys eorts possess signicance on account
of the wide scope of treatment of the topic, and the systematic presentation of the
matter.
At the 1951 ILC session Brierly also presented a report on Reservations to multilateral
conventions (Article 19, N. 3).6 This issue arose from diculties encountered by the
Secretary General in his capacity as depository under Article 102 of the UN Charter
for the Convention on the prevention and punishment of the crime of genocide of
1948. When the Secretary General sought guidance from the General Assembly, the
latter in turn requested an advisory opinion from the Court and also invited the ILC
to study the matter.7 The Commission came to the conclusion that the criterion of
the compatibility of a reservation with the object and purpose of a multilateral conven-
tion, applied by the International Court of Justice [was] not suitable for application to
multilateral conventions in general.8 However, the General Assembly did not follow

1
Survey of International Law in Relation to the Work of Codication of the ILC, at 51 . At
ibid. 92, the Survey identied some key problems, e.g., the concept of treaties, ratication,
constitutional limitations upon the treaty-making Power, interpretation, and the doctrine
rebus sic stantibus. On this section, see generally Villiger, Customary International Law
N. 153174.
2
YBILC 1950 II 226 ; the Appendix, ibid. 243 , reproduced many earlier eorts at
codication. The minutes are at YBILC 1950 I 64 .
3
YBILC 1951 II 70 .
4
YBILC 1951 II 73 , 139 ; for the minutes see YBILC 1951 I 12 .
5
YBILC 1952 II 50 ; also YBILC 1952 I 220 , and 224 .
6
YBILC 1951 I 11 ; see C.G. Fenwick, Reservations to Multilateral Conventions: The
Report of the International Law Commission, AJIL 46 (1952) 119 .
7
GA Res 478 (V) of 16 November 1950.
8
YBILC 1951 II 128, para. 24; see the Reservations to Genocide Advisory Opinion, ICJ Reports
1951 29 f (relevant passages are cited in Article 19, N. 2).
30 history of the convention

the Commissions traditional solution and recommended the Secretary General to


adhere to the Courts Advisory Opinion.9

C. LAUTERPACHTS REPORTS (19531954)

3 Sir Hersch Lauterpacht introduced his rst report in 1953 which aimed
at encompassing the entire law of treaties and further expanded the scope of
the subject.10 The ILC postponed discussion at its 1953 session, but invited
the Rapporteur to present a further report. The Lauterpacht Report II of
1954 modied and supplemented the provisions of its precursor, yet once
more the ILC could not address the matter.11 After his election to the ICJ,
Lauterpacht resigned from the Commission, whichnow in its seventh
session of 1954elected Sir Gerald Fitzmaurice (N. 4) as third Special
Rapporteur on the law of treaties.12

D. FITZMAURICES REPORTS (19561960)

4 In 1956 Fitzmaurice submitted his rst report which covered areas similar
to the reports of his predecessors. Of particular interest is the fact that he
introduced the dierent method of codifying the law of treaties by employ-
ing a code of principles rather than a draft convention (Issues of Customary
International Law, N. 22).13 In 1956 the ILC endorsed both the method and
detail of the draft, though the report itself was not discussed.14 In 1957 and
1958 Fitzmaurice presented his second and third reports on additional issues
of the law of treaties, which were again not discussed. In 1959 he prepared his
fourth report.15 The ILC debated parts of Fitzmaurice Report I in 1959 and
prepared a draft of 13 articles which were embodied in a code for the reason
that the law of treaties [was] not itself dependent on a treaty, but [was] part
of general customary international law.16 This Draft also prompted the Sixth

9
GA Res 598 (VI) of 12 January 1952.
10
YBILC 1953 II 90 ; see W. Jenks, Hersch Lauterpachtthe Scholar as Prophet,
BYBIL 36 (1960) 1 , 88 f.
11
YBILC 1953 I 290 , 386, and YBILC 1954 II 123 .
12
YBILC 1955 I 75, para. 3; also YBILC 1955 II 42, para. 32.
13
YBILC 1956 II 104 , para. 9; on the previous reports (N. 2) Sir Gerald wrote that the
respective draft articles were few in number and to some extent general in character,
ibid. 106, para. 3.
14
YBILC 1956 I 216 , paras. 47 .
15
YBILC 1957 II 6 , YBILC 1958 II 20 , and YBILC 1959 II 37; see YBILC 1957 I 197,
and YBILC 1958 I 175, para. 7.
16
YBILC 1959 II 91, para. 18; the minutes are at YBILC 1959 I 3 f, 95, paras. 13 , and
178 .
history of the convention 31

Committee of the UN General Assembly to debate the law of treaties for the
rst time. Its comments concerned mainly the method of codication, and
in its conclusions it found that the time had not yet arrived to recommend a
specic method.17 Fitzmaurices fth Report of 1960 was not examined by
the ILC.18 Upon election to the Court, he resigned from the ILC.
In retrospect, Fitzmaurices reports oer a detailed, comprehensive and highly system-
atic analysis of a major part of the law of treaties. Their contribution to the theory of
codication is invaluable in providing a unique basis for the comparison of the dierent
methods of jus scriptum international law.

E. WALDOCKS REPORTS (19621966)

1. Election
In 1961 the ILC elected Sir Humphrey Waldock fourth Special Rapporteur 5
on the law of treaties.19 For the rst time, and after some debate, the Rap-
porteur was given guidance as to his task.
Remarkably, the ILC requested the Rapporteur to abandon the code method (N. 4)
and to return to the use of draft convention articles (Issues of Customary International
Law, N. 23).20 In fact, Sir Humphrey apparently made this change a condition of his
acceptance of the post, aiming at the broadest possible participation, particularly of
newly independent States, in the formulation of a text which only a convention could
achieve.21 While the goal remained the systematic codication of the entire topic, Sir
Humphrey was requested to commence with the conclusion of treaties.22

2. Reports IIII (19621964)


The ILCs work on the topic gathered momentum when, in 1962, WAldock 6
presented his rst report containing 27 articles.23 The ILC devoted most of its
1962 session to this report and then adopted a provisional draft as the rst of
three parts on the subject.24 While most articles were adopted on a consensual
basis, a formal vote was taken on a few provisions, some of which were to be

17
GAOR 14 (1959) 6th SR 60lst 5 ; ibid.; Annexes, Agenda Item 55, paras. 12 .
18
YBILC 1960 II 69 .
19
YBILC 1961 I 99, paras. 28 .
20
Ibid. 247 , 254 , and 258, para. 74; YBILC 1961 II 28, para. 39.
21
See Agos comment in the 6th Committee, GAOR 20 (1965) 6th SR 851st para. 43;
similarly, the ILC Report 1962, YBILC 1962 II 160, para. 17; see also the minutes in
YBILC 1961 I 257.
22
YBILC 1961 I 249 ; see the comments ibid. by Ago, Amado and Tunkin.
23
YBILC 1962 II 28 ; the report also considered the endeavours of previous Rapporteurs;
ibid. 30, para. 10; see also Lissitzyn, Columbia LR 62 (1962) 1166 .
24
YBILC 1962 II 159 ; see the minutes in YBILC 1962 I 46 .
32 history of the convention

sources of dispute at the Vienna Conference in 1968 and 1969 (N. 14).25 The
ILC Draft was subsequently transmitted to Governments for observations.26
The Sixth Committee of the UN General Assembly scrutinised the draft both for
the substance of the articles and the choice of method.27
7 The ILC discussed Waldock Report II in 1963, upon which it adopted in a
provisional draft Part II.28 Most articles were subject to a formal vote. While
only eight articlesamong them on jus cogens (Article 64, q.v.)were adopted
unanimously, the remaining provisions attracted a number of abstaining or
rejecting votes.29 Again, these disagreements were to intensify at the Vienna
Conference (N. 14), at which the contested articles, as Part V of the ILC Draft
1966, were the source of great dispute. The ILC Draft 1963 was then trans-
mitted to Governments for observations and to the Sixth Committee.30
8 Waldock Report III was discussed by the ILC in 1964.31 The ILC Draft
1964, containing a provisional draft Part III, was equally transmitted to
Governments for their observations; the Sixth Committee did not consider
the ILC Report in 1964.32

3. Reports IVVI (19651966)


9 Waldock Report IV of 1965 introduced a novel and nal phase in the work
of the ILC. The report thoroughly reconsidered Part I of the Draft on the Law
of Treaties (N. 6) in the light of previous debates, of comments by delegates
in the Sixth Committee and of written observations by Governments.33 In
1965 the ILC re-examined Part I of the topic on the basis of Waldock Report
IV, most articles being voted upon and adopted unanimously. Thereafter, the
revised texts of 25 articles were submitted as the ILC Draft 1965 to the Sixth
Committee.34 At the same session, the ILC decided to defer examination of the
question of treaties entered into by international organisations. The ILC also
agreed to present the articles on the law of treaties in one single draft rather
than in separate parts, and rearmed unanimously its decision in 1962 to
opt for the convention method (N. 5). Finally, it convened an extraordinary
session in January 1966 in order to complete the draft articles before the end

25
YBILC 1962 I 168 .
26
Ibid. 160, para. 19; these observations are reproduced in YBILC 1966 II 279 f.
27
The Report is at GAOR 17 (1962) 6th SR 734th , Annexes, Agenda Item 76, paras. 17 .
28
YBILC 1963 II 189 .
29
YBILC 1963 I 207 .
30
GAOR 18 (1963) 6th SR 780th 5 .
31
YBILC 1964 II 5 ; for the minutes, see YBILC 1964 I 20 , 232 , 267 , and 315 .
32
YBILC 1964 II 174 ; see also YBILC 1964 I 162 .
33
YBILC 1965 II 3 .
34
Ibid. 156 ; the minutes are at YBILC 1965 I 3 , 243 , 299 , and 307 .
history of the convention 33

of the members terms of oce.35 Debate in the Sixth Committee centred on


the individual draft articles, most delegates endorsing the draft convention.
As a result, the UN General Assembly recommended that the ILC continue
its work, with the object of presenting a nal draft in 1966.36
Waldock Report V of 1965 covered Part II of the law of treaties and again 10
had as its basis observations submitted by Governments and comments by
delegations in the Sixth Committee.37 The ILC discussed this report and
re-examined 21 additional articles at the second part of its l7th session in
1966. Most articles were adopted by a vote, with but an occasional rejection
and few abstentions.38
In 1966 Waldock submitted his sixth report which re-examined the remain- 11
der of Part II, and Part III (N. 8) of the topic.39 At its 18th session in 1966,
the ILC examined the remaining draft articles on the basis of this report. It
also revised earlier provisions, rearranged the order of all articles and adopted
commentaries on them. Most provisions were subject to formal votes; they
attracted some abstaining and a few rare rejecting votes.40 The minutes of
this debate are the scientically most profound of the Commissions col-
legiate treatment of the matter. The nal text of 75 articles and appended
commentaries was then submitted to the UN General Assembly in the ILC
Report 1966.41 Therein, the ILC explained the relatively narrow scope of
the draft, and the reasons in favour of a single draft convention.42 The report
recommended that the General Assembly convene a diplomatic conference
for the conclusion of a convention.43

35
YBILC 1965 II 157 f, paras. 16 , and 175, para. 21.
36
GAOR 20 (1965) 6th SR 839th 5 .
37
YBILC 1966 II 1 ; also Sh. Rosenne, Some Diplomatic Problems of Codication of
the Law of Treaties, Washington LR 41 (1966) 261 .
38
For the minutes, see YBILC 1966 I/1 2 ; the report is included as Part I of the 1966
Report, YBILC 1966 II 169 ; the ILC Draft is at ibid. 177 .
39
YBILC 1966 II 51 .
40
YBILC 1966 I/2 3 , 240 , 262 ; the revised draft articles are at YBILC 1966 II
122 f.
41
YBILC 1966 II 173 ; see H. Waldock, The ILC and the Law of Treaties, UN Monthly
Chronicle 4 (1967) no. 5 69 ; Id., Some Contemporary Problems in Treaty Law Sug-
gested by the Draft Articles on the Law of Treaties of the ILC, PASIL 61 (1967) 186 ;
O.J. Lissitzyn, The Law of International Agreements in the Restatement, New York ULR
41 (1966) 96 .
42
YBILC 1966 II 176 f, para. 23, and paras. 28 ; see YBILC 1966 I/2 321 , paras. 12 ,
and Waldocks comment, ibid. 322 para. 16, that the ILCs recommendation would be
strong if it were not argumentative.
43
YBILC 1966 II 177, para. 35, in conformity with Article 23, subpara. 1(d) of the ILC-
Statute.
34 history of the convention

12 In 1966 the Sixth Committee generally endorsed the nal ILC Report (N. 11)
and agreed that it should be referred to a diplomatic conference as the basis
for discussion. As a result, the UN General Assembly agreed to convene an
international conference of plenipotentiaries . . . to consider the law of treaties
and to embody the results of its work in an international convention and
such other instruments as it may deem appropriate.44 The General Assembly
also invited written comments on the draft from UN members, specialised
agencies, and the Secretary General. The Sixth Committee discussed the ILC
Draft 1966 (N. 11) again at its 1967 session. Part V of the draft, on the Inva-
lidity, termination and suspension of treaties, attracted the greatest attention.
Participants distinguished, for the rst time, between provisions constituting
either codication or progressive development (Issues of Customary Interna-
tional Law, N. 18).45 The General Assembly then decided to convene the rst
session of the Conference in Vienna in 1968, and also invited participating
States (including non-members of the UN) to submit to the Secretary General
additional comments and amendments to the ILC Draft.46

4. Appreciation
13 The Waldock Reports IVI were original, the earlier Rapporteurs having
inuenced Sir Humphreys eorts only to a small degree.47 The reports them-
selves underwent considerable change, the rst three (N. 6) resembling in
their descriptive character more a code of principles than a draft convention.48
While the Convention may bear only few signs of earlier drafts and reports,
there can be no doubt that it was moulded mainly by Sir Humphrey. This
achievement is all the more notable as the law of treaties had until then been
the largest project undertaken by the ILC. The latter had devoted 18 years
(19491966) and 292 meetings to the topic; and four Special Rapporteurs had
prepared 17 Reports. These gures may give rise to the assumption that the
Commissions studies were exceptionally thorough. Authors have mentioned
as an explanation for this unusually long period the breadth and scope of the

44
GA Res 2166 (XXI) of 5 December 1966; see also GAOR 21 (1966) 6th SR 902nd-919th
11 , paras. 1 ; Annexes Agenda Item 84 26, para. 100.
45
GAOR 22 (1967) 6th SR 964th 41 .
46
GA Res 2287 (XXII) of 6 December 1967; the Conference was divided into two sessions
to enable all States to send specialists, C.-A. Fleischhauer, Die Wiener Vertragsrech-
tskonferenz, JIR 15 (1971) 203. The amendments to the Conference are reproduced in
OR Documents, the observations by States are in Doc A/Conf 39/6; see the complaint
in this respect by Switzerland, OR 1968 CoW 323, para. 25.
47
Waldock Report I, YBILC 1962 II 30, paras. 9 .
48
E.g., Article 4 of Waldock Report I was by 1969 shortened by more than half to the
present Article 7 on Full Powers (q.v., N. 2).
history of the convention 35

topic,49 or have attributed this length of time to the lack of pressure and to
the well dened or persistent clashes of national interests and policies.50
However, a closer look at these travaux prparatoires reveals that the law of treaties was
not actually studied at greater length, or more comprehensively, than other topics.
Thus; from 1949 to 1961i.e., 13 of the 18 yearsthe ILC itself completed only two
reports, and even these were provisional, rather short and only covered certain parts of
the eld (N. 2). Most of the work was actually prepared from 19621966, when the
ILC devoted approximately 226 meetings (or 32 working weeks) to the subject. Until
1962 the Commissions resources were devoted to work on the law of the sea, and on
diplomatic and consular relations. The frequent changes of Rapporteursand, with
them, of methods (N. 5)also checked the ILCs pace.

F. THE 1968/1969 VIENNA CONFERENCE ON THE LAW OF TREATIES

1. First Session of 1968


The UN Conference on the Law of Treaties was conducted in two sessions. 14
The rst session took place in Vienna from 26 March to 24 May 1968 and
was attended by delegates of 103 States and by observers from 13 specialised
agencies.51
Altogether 115 States participated in both sessions. They represented global regions as
follows: Africa (31 States); the Americas (23); Asia (26); Eastern Europe (9); Western Europe
(24); Australia and New Zealand (2). More than one third of the States represented had
achieved independence since 1945.52
The Conference organised itself in the initial plenary meetings. Four persons with
leading functions were also ILC members, and Sir Humphrey Waldock attended as
Expert Consultant. Many State delegations included ILC members.53

49
Sinclair, ICLQ 19 (1970) 50. In 1949 Brierly warned that the law of treaties was a
very wide question which might take up several meetings, YBILC 1949 48, para 15.
50
Lissitzyn, Columbia LR 62 (1962) 1166 .
51
The Conference expended approximately 75 days on the draft convention. The participants
(listed in OR Documents 283) were invited according to the Vienna Formula of GA Res
2166 (XXI) of 5 December 1966, i.e., members of the UN and specialised agencies, and
parties to the ICJ-Statute (Article 81, N. 3). On the rst session, see R. Ago, Conferenza
delle Nazioni Unite sul diritto dei trattati, Comunit internazionale 24 (1969) 436 ; P.
Fischer/H.F. Koeck, Das vlkerrechtliche Vertragsrecht im Lichte der Ergebnisse der
ersten Session der Wiener Vertragsrechtskonferenz der Vereinten Nationen, JZ 1968
505 .
52
A.K. el Kadiri, La position des tats du Tiers Monde la Confrence de Vienne sur le
droit des traits (1980).
53
See the Secretary Generals Memorandum on Methods of Work and Procedure of the
1st Session of the Conference, approved in OR 1968 Plenary 7, paras. 4 ; and on the
Procedural and Organizational Problems Involved in a Possible Diplomatic Conference
on the Law of Treaties, GAOR 21(1966) Annexes Agenda Item 84 1 ; also Y. Daudet,
36 history of the convention

15 The Committee of the Whole (CoW) commenced with a rst reading of the
ILC Draft articles, which served as the basic proposal of the Conference.54
Over 400 amendments were submitted to various articles of the draft conven-
tion. The CoW held a debate on each article and the proposed amendments
thereto. The debate was opened by the sponsors of the relevant amendments;
Sir Humphrey occasionally replied to questions and interpreted the ILC
Draft 1966.55
The voting procedures may be summarised as follows. If the amendment involved a
substantive issue, a vote was held with a simple majority being necessary for its adop-
tion. If the amendment concerned drafting issues, it was submitted directly to the
Drafting Committee unless objections were raised and a vote requested. The ILC draft
article itself was voted upon if an amendment recommended its deletion.56 Hence, if
an amendment involving a substantive issue was rejected, this implied tacit acceptance
of the article, whereas acceptance of the amendment implied adoption of the article as
amended. If no amendment was proposed, the provision was regarded as adopted and
referred to the Drafting Committee.57

16 The Drafting Committee held private discussions, regularly on a consensual


basis, examining issues of drafting, substantive amendments and the ILC
Draft 1966 in the light of the CoW records in order to present an accept-
able, revised text to the Conference.58 The Drafting Committees report was
then discussed in the CoW. If subsequently there appeared to be substantial
support in the CoW for the text, it was adopted without formal vote on the
understanding that the summary records would reect statements and res-
ervations of States. In other instances, a formal vote was taken with a simple
majority being necessary for the adoption of a text.59
17 As a result, at the 1968 session the CoW agreed in 83 meetings on 69 articles
which it recommended to the plenary Conference (N. 17) for adoption.

Note sur lorganisation et les mthodes de travail de la Confrence de Vienne sur le droit
des traits, AFDI 15 (1969) 54 .
54
Rule of Procedure 23, OR 1968 xxviii.
55
Ibid. 108, para. 12. The amendments are reproduced in OR Documents 95 f.
56
Rule of Procedure 51, OR 1968 xxx. The count was based on the representatives present
and casting either an armative or a negative vote; abstaining votes were not considered
(Rule 37). See, e.g., OR 1968 CoW 58, paras. 47 , where a vote was taken; and ibid.
185, paras. 79 f, where no vote was taken; also ibid. 201, paras. 44 , regarding ILC Draft
Article 34, where an amendment recommended its deletion.
57
E.g., Article 9 of the ILC Draft 1966, ibid. 83, para. 41.
58
The Drafting Committee consisted of 15 members working on a basis similar to the ILC
Drafting Committee; see Rosenne, Law of Treaties 66; Nahlik, AFDI 15 (1969) 30.
59
E.g., the adoption of Article 40 of the ILC Draft 1966, OR 1968 CoW 463, para. 5, and
the vote on Article 41 of the ILC Draft 1966, ibid. 483, para. 10.
history of the convention 37

The Committee left for further consideration at the second session the nal
clauses, the preamble and eleven articles.60

2. Second Session of 1969


The second session took place in Vienna from 9 April to 22 May 1969. 110 18
States and 14 specialised agencies and international organisations partici-
pated.61 During the rst part, the CoW continued during 22 meetings the
rst reading of those provisions of the ILC Draft 1966, and the amendments
thereto, on which it had not been able to agree during the 1968 session (N.
15, 17).62 In sum, it accepted an additional thirteen articles and recommended
them to the Conference for adoption.63 In Plenary, the Conference undertook
a second reading of the draft articles as prepared by the CoW.
In the course of this reading, each article was put to a vote; a two-thirds majority
was necessary for adoption, even if the previous debate in the CoW had reected
unanimous support.64 A negative vote on the article brought about its deletion from
the draft convention.65 Occasionally, if an amendment was adopted, or when the
debate revealed drafting diculties, the matter was referred back to the Drafting
Committee, the report of which wasif a formal vote had already been taken
subsequently adopted by the Conference on a consensual basis.66

When assessing the nal votes in Plenary, it should be borne in mind that up 19
to 110 States participated at the 1969 session and that the Convention consists
of 85 articles. Sixty-six articlesover three-quarters of the Conventionwere
adopted by vast majorities of 90 votes or more, with only an occasional nega-
tive vote. Altogether 37 articlesnearly half the Conventionwere adopted

60
For the CoW Draft and various draft resolutions, see OR Documents 209 ; while ILC
Draft Article 38 was deleted, OR 1968 CoW 215, para. 60, the CoW introduced the new
articles 9bis, 10bis, 23bis and 69bis.
61
See the Final Act on the UN Conference on the Law of Treaties (q.v., N. 34). See generally P.
Fischer/H.F. Koeck, Das Recht der vlkerrechtlichen Vertrge nach der zweiten Session
der Wiener Vertragsrechtskonferenz der Vereinten Nationen, ZAP 1969 275 f.
62
Namely, provisions in regard to which problems had arisen on references to general or
restricted multilateral treaties, in particular Articles 5bis and 62bis as proposed at the
Conference and the later Convention Articles 2, 9, 20, 30, 40, 41, 58 and 70 (q.v.).
63
OR Documents 257 ; the CoW also adopted the Final Clauses (Articles 8184, q.v.),
OR 1969 CoW 310, paras. 1 ; the Preamble (q.v.) was submitted directly by the Drafting
Committee to the Plenary, OR 1969 169, paras. 7 .
64
Rules of Procedure 36, para. 1, and 37; the count was based on the representatives present
and casting an armative or negative vote; abstentions were not considered.
65
E.g., Article 5, para. 2 of ILC Draft 1966 (Capacity of a federal State to conclude treaties;
see Article 6, N. 11), OR 1969 Plenary 15, paras. 50; Article 62bis (Compulsory Settle-
ment of Disputes; see generally Articles 6568, q.v.) as proposed by the Conference, ibid.
153, para. 31.
66
E.g., ibid. 4, para. 21; 157, para. 48; and 158 f, paras. 4 .
38 history of the convention

unanimously.67 Fifteen articles received 8089 votes,68 and four were adopted
by fewer than 80 votes.69 Of the provisions not proposed by the ILC but
by participating States, six attracted a relatively large number of abstaining
or rejecting votes.70 The Convention itself was adopted by 79 votes to one
(France), with 19 abstentions (Article 85, N. 1; Final Act of the United Nations
Conference on the Law of Treaties, q.v.).

67
The Conference adopted unanimously Articles 1, 3, 13, 17, 18, 2124, 26, 29, 3137,
3941, 47, 54, 55, 5759, 61, 63, 70, 73, 7680, 82 and 85 (q.v.).
68
Articles 4, 6, 20, 25, 38, 39, 45, 50, 53, 60, 64, 71, 74, 81, and 83 (q.v.).
69
Fewer than 80 votes: Article 15 (Consent to be Bound by a Treaty Expressed by Accession,
q.v.); Article 27 (Internal Law and Observance of Treaties, q.v.); Article 66 (Procedures
for Judicial Settlement, Arbitration and Conciliation, q.v.); Article 67 (Instruments for
Declaring Invalid, Terminating, Withdrawing from or Suspending the Operation of a
Treaty, q.v.).
70
Articles 27, 66, 74, 81, 83 and 84 (q.v.).
Preamble

Vienna Convention on the Law of Treaties


Done at Vienna on 23 May 1969

The States Parties to the present Convention,

1. Considering the fundamental role of treaties in the history of interna-


tional relations,
2. Recognising the ever-increasing importance of treaties as a source of
international law and as a means of developing peaceful co-operation
among nations, whatever their constitutional and social systems,
3. Noting that the principles of free consent and of good faith and the
pacta sunt servanda rule are universally recognised,
4. Arming that disputes concerning treaties, like other international
disputes, should be settled by peaceful means and in conformity with
the principles of justice and international law,
5. Recalling the determination of the peoples of the United Nations to
establish conditions under which justice and respect for the obliga-
tions arising from treaties can be maintained,
6. Having in mind the principles of international law embodied in the
Charter of the United Nations, such as the principles of the equal
rights and self-determination of peoples, of the sovereign equality
and independence of all States, of non-interference in the domestic
aairs of States, of the prohibition of the threat or use of force and of
universal respect for, and observance of, human rights and fundamental
freedoms for all,
7. Believing that the codication and progressive development of the
law of treaties achieved in the present Convention will promote the
purposes of the United Nations set forth in the Charter, namely, the
maintenance of international peace and security, the development of
friendly relations and the achievement of co-operation among nations,
8. Arming that the rules of customary international law will continue
to govern questions not regulated by the provisions of the present
Convention,

Have agreed as follows:


40 preamble

Prambule

Convention de Vienne sur le droit des traits


Conclue Vienne le 23 mai 1969

Les Etats Parties la prsente Convention,

1. Considrant le rle fondamental des traits dans lhistoire des relations interna-
tionales,
2. Reconnaissant limportance de plus en plus grande des traits en tant que source du
droit international et en tant que moyen de dvelopper la coopration pacique
entre les nations, quels que soient leurs rgimes constitutionnels et sociaux,
3. Constatant que les principes du libre consentement et de la bonne foi et la rgle
pacta sunt servanda sont universellement reconnus,
4. Armant que les dirends concernant les traits doivent, comme les autres dif-
frends internationaux, tre rgls par des moyens paciques et conformment
aux principes de la justice et du droit international,
5. Rappelant la rsolution des peuples des Nations Unies de crer les conditions nces-
saires au maintien de la justice et du respect des obligations nes des traits,
6. Conscients des principes de droit international incorpors dans la Charte des
Nations Unies, tels que les principes concernant lgalit des droits des peuples
et leur droit de disposer deux-mmes, lgalit souveraine et lindpendance de
tous les Etats, la non-ingrence dans les aaires intrieures des Etats, linterdiction
de la menace ou de lemploi de la force et le respect universel et eectif des droits
de lhomme et des liberts fondamentales pour tous,
7. Convaincus que la codication et le dveloppement progressif du droit des traits
raliss dans la prsente Convention serviront les buts des Nations Unies noncs
dans la Charte, qui sont de maintenir la paix et la scurit internationales, de
dvelopper entre les nations des relations amicales et de raliser la coopration
internationale,
8. Armant que les rgles du droit international coutumier continueront rgir les
questions non rgles dans les dispositions de la prsente Convention,

Sont convenus de ce qui suit:



preamble 41

Prambel

Wiener bereinkommen ber das Recht der Vertrge


Abgeschlossen in Wien am 23. Mai 1969

Die Vertragsstaaten dieses bereinkommens,

1. in Anbetracht der grundlegenden Rolle der Vertrge in der Geschichte der inter-
nationalen Beziehungen,
2. in Erkenntnis der stndig wachsenden Bedeutung der Vertrge als Quelle des
Vlkerrechts und als Mittel zur Entwicklung der friedlichen Zusammenarbeit
zwischen den Vlkern ungeachtet ihrer Verfassungs- und Gesellschaftssysteme,
3. im Hinblick darauf, dass die Grundstze der freien Zustimmung und von Treu
und Glauben sowie der Rechtsgrundsatz pacta sunt servanda allgemein anerkannt
sind,
4. in Bekrftigung des Grundsatzes, dass Streitigkeiten ber Vertrge wie andere
internationale Streitigkeiten durch friedliche Mittel nach den Grundstzen der
Gerechtigkeit und des Vlkerrechts beigelegt werden sollen,
5. eingedenk der Entschlossenheit der Vlker der Vereinten Nationen, Bedingungen
zu schaen, unter denen Gerechtigkeit und die Achtung vor den Verpichtungen
aus Vertrgen gewahrt werden knnen,
6. im Bewusstsein der in der Charta der Vereinten Nationen enthaltenen vlker-
rechtlichen Grundstze, darunter der Grundstze der Gleichberechtigung und
Selbstbestimmung der Vlker, der souvernen Gleichheit und Unabhngigkeit
aller Staaten, der Nichteinmischung in die inneren Angelegenheiten der Staaten,
des Verbots der Androhung oder Anwendung von Gewalt sowie der allgemeinen
Achtung und Wahrung der Menschenrechte und Grundfreiheiten fr alle,
7. berzeugt, dass die in diesem bereinkommen verwirklichte Kodizierung und
fortschreitende Entwicklung des Vertragsrechts die in der Charta der Vereinten
Nationen verkndeten Ziele frdern wird, nmlich die Wahrung des Weltfriedens
und der internationalen Sicherheit, die Entwicklung freundschaftlicher Beziehu-
ngen und die Verwirklichung der Zusammenarbeit zwischen den Nationen,
8. in Bekrftigung des Grundsatzes, dass die Stze des Vlkergewohnheitsrechts wei-
terhin fr Fragen gelten, die in diesem bereinkommen nicht geregelt sind,

haben folgendes vereinbart:



42 preamble

Materials:

Minutes: OR 1968 Plenary 7; OR 1969 Plenary 6, 169 .

Vienna Conference Vote: 86:0:11

Selected Literature:

J.J. Corriente Cordoba, Valoracin juridica de los preambulos de los tratados interna-
ctionales (1973); H. Pazarci, Prambule, in: Corten/Klein (eds.) 1 ; H.-D. Treviranus,
Preamble, EPIL 3 (1997) 1097 f.
preamble 43

CONTENTS
Paras.

A. Background ......................................................................................... 1
1. Introduction .................................................................................. 1
2. History ........................................................................................... 3
B. Interpretation of the Preamble ....................................................... 5
1. Scope ............................................................................................. 5
2. Title and Opening Sentence ........................................................... 6
3. Fundamental Role of Treaties (Para. 1) ........................................... 8
4. Treaties as a Source of International Law (Para. 2) .......................... 9
5. Free Consent, Good Faith and pacta sunt servanda (Para. 3) ............ 10
6. Settlement of Disputes (Para. 4) ..................................................... 11
7. Respect for Obligations Arising from Treaties (Para. 5) ................... 12
8. Principles of UN Charter (Para. 6) ................................................. 13
9. Codication and Progressive Development (Para. 7) ...................... 14
10. Role of Customary International Law (Para. 8) ............................... 16
11. Closing Statement ......................................................................... 17
C. Appreciation ....................................................................................... 18

A. BACKGROUND

1. Introduction
A preamble to a treaty comprises the narrative part extending from the title 1
of the treaty to the beginning of the operative part.1 It provides an introduc-
tory statement or preliminary explanation of the instrument, often as to its
history and the parties intentions, namely, the purpose of and the motives
for concluding the treaty and the values underlying the instrument. As a rule,
the preamble confers no contractual rights or obligations on the parties,2
though it may reect independent rules of customary international law (N.
1013, 15).

1
See Treviranus, EPIL 3 (1997) 1097 f and passim for this section; also P. You, Le prambule
des traits internationaux (1941); the examples in Blix/Emerson 45 .
2
See the distinction made by G. Fitzmaurice, The Law and Procedure of the International
Court of Justice 195154, BYBIL 33 (1957) 229 ([the preamble is] binding in character
[though] it does not contain, or does not usually . . . contain, directly operative provi-
sions).
44 preamble

2 The preamble plays a role in the interpretation of the treaty.3 In particular, it


is important for establishing the treatys object and purpose.4 Thus, a treatys
preamble may assist in the application of the following Convention provi-
sions to that treaty as follows:5
Article 18 on the obligation not to defeat the object and purpose of a treaty prior to
its entry into force (q.v., N. 10);
Article 19, para. (c) as one means of establishing the incompatibility of a reservation
(q.v., N. 13);
Article 20, para. 2 as one characteristic of a multilateral treaty the reservations to
which require the consent of all the parties (q.v., N. 5);
Article 31, para. 1 as one of a number of means of interpretation within the General
Rule of interpretation (q.v., N. 1114);
Article 33, para. 4 as a means for resolving textual dierences between various authentic
texts (q.v., N. 12);
Article 41, subpara. 1(b)(ii) as a ground for limiting the freedom of parties to a mul-
tilateral treaty to conclude modications inter se (q.v., N. 9);
Article 58, subpara. 1(b)(ii) as a ground for limiting the freedom of parties to a mul-
tilateral treaty to agree on suspension inter se (q.v., N. 6);
Article 60, subpara. 3(b) as a means of characterising a material breach of a treaty
(q.v., N. 1516).

2. History
3 Traditionally, the ILC does not propose preambles to its drafts, nor did it
prepare any for the Convention.6 At the Vienna Conference in 1968, the
Drafting Committee was entrusted with the preparation of the Preamble;7 in
1969 it submitted its text to the Plenary.8 The Committee thereby relied on
two proposals submitted by Switzerland on the one hand, and Mongolia and
Romania, on the other.9 States then submitted further amendments.10

3
European Court of Human Rights in Golder v. United Kingdom, judgment of 21 February
1975, Series A no. 18, p. 16, 34.
4
See the Asylum (Colombia/Peru) Case, ICJ Reports 1950 282; the Rights of US Nationals
in Morocco (France/USA) Case, ibid. 1952 196.
5
See also the list in Buffard/Zemanek, Austrian RIEL 3 (1998) 321 f.
6
But see the Draft Declaration on Rights and Duties of States, YBILC 1949 287; the Draft
Convention on the Elimination of Future Statelessness, YBILC 1954 II 143; and the Draft
Articles on Nationality of Natural Persons in Relation to the Succession of States, YBILC
1999 II 23 . For an overview of the drafting history, see also Rosenne, Developments
138 f.
7
OR 1968 Plenary 7, para. 7.
8
OR 1969 Plenary 169, after para. 7.
9
Statement in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1969 Plenary
169, para. 8; see OR Documents 263.
10
OR Documents 260 and 271; see N. 4.
preamble 45

In the context of the Preamble, States again discussed the all States-issue (Article
15Declaration, N. 21; Article 81, N. 2). Thus, already in the Drafting Committee a
minority had proposed to state in a preambular para. that States were convinced that
the benets of international co-operation should be ensured to all and that every State
[had] the right to enter into international treaty relations.11 However, this was not
adopted in the Plenary where debate revealed the by then usual rifts within the State
community.12

The proposal submitted by the Drafting Committee (N. 3) was not altered 4
as such, though there were a number of additions thereto. Votes were taken
on these amendments before the Conference nally adopted the preamble
by 86 votes to none, with eleven abstentions.13
The additions to the proposal of the Drafting Committee were as follows:
third preambular para.: principles of free consent and of ;14
fourth preambular para.: and in conformity with the principle of justice and inter-
national law;15
sixth preambular para.: and of universal respect for, and observance of, human rights
and fundamental freedoms for all;16
seventh preambular para.: Arming that the rules of customary international law
will continue to govern questions not regulated by the provisions of the present
Convention.17

11
Yasseen, Chairman of the Drafting Committee, OR 1969 Plenary 169, para. 9.
12
Inter alia, in favour, e.g., the statements by the delegations of Romania, ibid. 171, para.
32; Mongolia, 173, para. 54; the then USSR, 174, paras. 7071; against, e.g., the US, 173,
para. 58; the UK, 178, para. 9. See the compromise proposed by Sweden, 189, para. 32
(could have supported the amendment had the word capacity [instead of right] been
used).
13
Ibid. 178, para. 31. For the votes on the amendments in Vienna, see ibid. 177 f.
14
Amendment proposed by Ecuador, OR Documents 271; see the statement by the Ecua-
dorian delegation, OR 1969 Plenary 170, paras. 2224.
15
Amendment proposed by Sweden, OR Documents 271; see the statement by the Swedish
delegation, OR 1969 Plenary 170, paras. 1718.
16
Amendment proposed by Costa Rica and the Netherlands, OR Documents 271; see the
statement by the Dutch delegation, OR 1969 Plenary 169, para. 11.
17
Amendment proposed by the Swiss delegation, OR Documents 271, which had originally
proposed the formulation govern questions not expressly regulated; this was eventually
deleted upon a proposal by Yasseen of the Iraqi delegation, OR 1969 Plenary 174, para.
68 ([t]he word expressly was open to criticism, for the rules which applied were subject
to interpretation and the questions which arose were settled either directlyin other
words, expresslyor indirectly, in other words implicitly. An implicit rule was as valid
as an explicit rule. The word expressly would be prejudicial to the convention since it
would unduly limit its scope); see the statement by the Swiss delegation, ibid. 170, paras.
2021, and 176, para. 15; also the criticism by Karl, Vertrag 363.
46 preamble

B. INTERPRETATION OF THE PREAMBLE

1. Scope
5 By and large the Convention features a typical preamble (N. 1) with eight consi-
drants (recitals) and ensuing preambular paras. It assists in the interpretation of
the Convention, in particular when employing the teleological method (N. 2;
Article 31, N. 1114).18 As such, it constitutes part of the context within
the meaning of the opening sentence of Article 31, para. 2 (q.v., N. 10).19
While not conferring any rights and obligations on the parties, the various
principles derived in particular from the UN Charter and from the Conven-
tion itself reect customary international law (N. 1013, 15).

2. Title and Opening Sentence


6 The preamble commences with the title Vienna Convention on the Law of
TreatiesDone at Vienna on 23 May 1969. A title may suggest the spirit
and intention of the treaty as a whole.20 By naming it a Vienna Convention,
States demonstrated that the Convention was one of a series of multilateral
Conventions adopted in Vienna containing codication and progressive
development and prepared by the ILC (N. 15), starting with the 1961 Vienna
Convention on Diplomatic Relations and the 1963 Vienna Convention on
Consular Relations.21 By referring simply and unconditionally to the Law of
Treaties, the title discloses the parties aim to deal with the entire subject-mat-
ter (though certain areas are indeed excluded, N. 16). That the Convention
was done at Vienna on 23 May 1969, is also stated in the closing sentence
in Article 85 (q.v., N. 4).
7 The opening sentence of the Preamble and indeed of the Convention, refers
to the States Parties to the present Convention. Parties are States for which

18
See the statements in Vienna by the delegations of Nepal, OR 1969 Plenary 175, para.
82 (the preamble to a treaty contained the key to the interpretation of any obscure or
ambiguous provisions); and Mongolia, ibid. 173, para. 52; Treviranus, EPIL 3 (1997)
1097 f.
19
See the statement by the Uruguayan delegation, OR 1969 Plenary 171, para. 33.
20
Beagle Channel (Chile v Argentina) Arbitration, ILR 52 (1979) 131, cited by Jennings/
Watts N. 587, n. 1.
21
And continuing with the Vienna Convention on the Representation of States in Their
Relations with International Organisations of a Universal Character of 1975; the Vienna
Convention on Succession of States in Respect of Treaties of 1978; the Vienna Convention
on Succession of States in Respect of State Property, Archives and Debts of 1983; and the
Vienna Convention on the Law of Treaties Between States and International Organisations
or Between International Organisations of 1986.
preamble 47

the treaty is in force (Article 2, subpara. 1[ g ], N. 48), and they are the masters
of the treaty. This is emphasised by putting the sentence in italics. The Parties
have consented to be bound by the Convention, and thereby also adopt the
motives and values stated in the Preamble (N. 1). States acceding to the Con-
vention accept the intentions formulated in the Preamble by the negotiating
States (Article 2, subpara. 1[e], N. 4042; Article 83, q.v.).

3. Fundamental Role of Treaties (Para. 1)


The rst preambular para., considering the fundamental role of treaties in 8
the history of international relations, places the Convention as a treaty and
contract in its historical context. Contracts are among the most important
social tools of man. Since the dawn of mankind, human beings have employed
contracts to foster co-existence, cohabitation and co-operation. Similarly,
since the earliest cultures and throughout history peoples and their rulers
and representatives have regulated their relations with each other by means
of treaties.22 In this light, the Convention appears as the outcome and the
fruit of these millennia of mans experience with international relations.
One of the oldest treaties known was an alliance (fraternity) treaty concluded between
the two Sumerian cities Lagash and Umma located 27 km apart in Lower Mesopotamia.
The treaty, which is on display in the Louvre in Paris in France, goes back to before
2400 BC. It determined the boundary between the two cities and appointed a neigh-
bouring ruler as a mediator.23 The peace treaty dated 1280 BC between the Egyptian
pharaoh Ramses II and the Hittite King Hattusilis III can be seen on a temple wall
in Karnak in Egypt.

4. Treaties as a Source of International Law (Para. 2)


The second preambular para. recognises treaties as a source of international 9
law. It thereby places both the Convention and the treaties which it governs
squarely within general international law24 and, in particular, within the tra-
ditional framework of Article 38, para. 1 of the ICJ-Statute, which has been
accepted by States in their practice as an authoritative (though not unawed)

22
See the statement in Vienna by the Romanian delegation, OR 1969 Plenary 171, para. 29
(the proposed text drew attention to the use which peoples had made of the agreements
and conventions to which they had had recourse since the earliest stage of their existence
as organized human communities).
23
See A. Truyol y Serra, Geschichte der Staatsvertrge und Vlkerrecht, in: R. Marcic
et al. (eds.), Internationale Festschrift fr A. Verdross zum 80. Geburtstag (1971) 512
and passim.
24
Read together with the fourth and sixth preambular paras. (N. 11, 13) and Article 2, subpara.
1(a) (q.v., N. 1819).
48 preamble

statement on the sources of international law.25 This para. conrms that among
the various sources of law, treaties enjoy an ever-increasing importance both
in qualitative and quantitative terms.26 A further source of lawcustomary
international lawis mentioned in the eighth preambular para. (N. 16).
This preambular para. conrms (N. 8) that throughout history treaties have served
peoples and their rulers and representatives to regulate their relations with each other
and as a means of developing peaceful cooperation among nations. The reference
to nations dierent constitutional and social systems must be seen in the context of
the then Cold War which also pervaded the Vienna Conference (N. 3).

5. Free Consent, Good Faith and pacta sunt servanda (Para. 3)


10 The third preambular para. notes that the principles of free consent and of
good faith and the pacta sunt servanda rule are universally recognised.
The principle of good faith and the rule of pacta sunt servanda are set out
in Article 26 (q.v., N.5).27 On the other hand, the principle of free consent,
derived from the principles of the sovereignty and equality of States (N. 13),
is not mentioned elsewhere in the Convention.28 Implicitly, this principle
is contained in Articles 1, 2, subpara. 1(b), 6, 11 and 16 (q.v.). according to
which every State may equally establish consent to be bound by a treaty on
the international plane.29 Free consent is also reected in the principle of
good faith.30

25
See the statement in Vienna by the Mongolian delegation, OR 1969 Plenary 173, para.
53 (the second paragraph of the preamble . . . accurately reected the existing situation
with regard to the development of treaty relations. International agreements were indeed
an important source of international law); also Villiger, Customary International Law
N. 13.
26
See the functions of jus scriptum in Villiger, ibid. N. 197 .
27
See the statements in Vienna by the delegations of Ecuador, OR 1969 Plenary 170, para.
23 (glad to see that a distinction had been made between a principle and a rule); and
Romania, ibid. 171, para. 31 ([the principle of good faith] held good at all stages in the
existence of a treaty, including conclusion, entry into force, interpretation and termina-
tion).
28
But see Article 52Declaration, N. 4.
29
Statement by the Ecuadorian delegation, ibid. 170, para. 24 (it was . . . generally accepted
that freedom of consent was a legal principle which governed contractual acts as a peremp-
tory and fundamental rule).
30
Statement by Yasseen of the Iraqi delegation, ibid. 174, para. 67 ([free consent] was
already implicit in the notion of good faith. Moreover, a whole series of articles of the
Convention were concerned with consent to be bound by a treaty).
preamble 49

6. Settlement of Disputes (Para. 4)


The fourth preambular para. arms that disputes concerning treaties, 11
like other international disputes, should be settled by peaceful means.
While the peaceful settlement of international disputes is not otherwise
mentioned in the Convention, this para. obviously refers to the procedures
to be followed according to Articles 6568 and the Annex to Article 66 (q.v.)
and also recalls the lengthy debate leading to the adoption of these provi-
sions.31 That the settlement of disputes should occur in conformity with
the principles of justice and international law, is taken verbatim from
Article 1, para. 1 of the UN Charter and conrmsalso with the reference
to other international disputesthat the Convention is rmly rooted in
international law (N. 9).

7. Respect for Obligations Arising from Treaties (Para. 5)


The fth preambular para. refers to the UN Charter (N. 12, 14) and indirectly 12
also to the rule of pacta sunt servanda (N. 10). It recalls the determina-
tion of the peoples of the United Nations to establish conditions under
which justice and respect for the obligations arising from treaties can be
maintained.

8. Principles of UN Charter (Para. 6)


The sixth preambular para. has in mind the principles of international 13
law embodied in the Charter of the United Nations (N. 1112).32 It
mentions some of these, such as the principles of the equal rights and self-
determination of peoples, of the sovereign equality and independence
of all States and of non-interference in the domestic aairs of States,
all of which imply the free consent of States (N. 10). The principle of the
prohibition of the threat or use of force is reected in Article 52 and its
annexed Resolution and Declaration (q.v.). Finally, the principle of universal
respect for, and observance of, human rights and fundamental freedoms
for all containstogether with Article 60, para 5 (q.v., 2324)the only
reference in the Convention to the human person (N. 19).33 Interestingly,

31
See the statements in Vienna by the delegations of Italy, OR 1969 Plenary 172, para. 39
(one of the essential elements in the structure of the Convention), and of Uruguay, ibid.
171, para. 33 (constructive element in the preamble).
32
Statement in Vienna by the Spanish delegation, OR 1969 Plenary 173, para. 47 (of a jus
cogens character).
33
See the various statements by the Dutch delegation, ibid. 169, para. 11 ([the preamble]
which listed some of the major principles of international law embodied in the Charter,
should also expressly mention universal respect for, and observance of, human rights and
fundamental freedoms for all); para. 12 (one of the main foundations of peace and jus-
50 preamble

these principles were subsequently reiterated in the Declaration on Friendly


Relations of 1970.34

9. Codication and Progressive Development (Para. 7)


14 The seventh preambular para. refers to both the codication and progres-
sive development of the law of treaties achieved in the Convention. This
formulation leaves open the question of whether or not the Convention
reects customary international law (Issues of Customary International Law,
N. 20, 34). Here, the Preamble identies the Convention as one of the many
achievements since 1949 of the International Law Commission and its four
Special Rapporteurs Brierly, Lauterpacht, Fitzmaurice and Waldock
(History of the Convention, N. 213).35
15 Furthermore, the para. believes that this achievement will promote the
purposes of the United Nations set forth in the Charter, namely, the
maintenance of international peace and security, the development of
friendly relations and the achievement of co-operation among nations.36
Again, these principles were subsequently reiterated in the Declaration on
Friendly Relations of 1970 (N. 13, n. 34).
One can loosely attribute these principles to the following treaties: Treaties concerning
the maintenance of international peace and security may be viewed as constitutional
instruments in international law. Those developing friendly relations may be circum-
scribed as traits-lois regulating general and abstract conduct between States, for instance
the various Vienna Conventions. Treaties aiming at the achievement of co-operation
among nations may be seen as traits-contrats.

10. Role of Customary International Law (Para. 8)


16 The eighth preambular para. recalls that the Convention aimed to cover a
large part though not the entire law of treaties.37 Thus, it arms that the
rules of customary international law will continue to govern questions

tice); and 170, para. 14 ([t]he importance of the relationship between the codication
of human rights, their progressive development and the law of treaties scarcely needed
stressing).
34
Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation Among States in Accordance With the Charter of the United Nations; UN GA
Resolution 2625 (XXV) of 24 October 1970.
35
Villiger, Customary International Law N. 70 .
36
See the statement in Vienna by the Romanian delegation, OR 1969 Plenary 171, para. 31
(codication of treaty law would serve the cause of justice in international life and thus
help to maintain international peace and security).
37
See Articles 34, 73 and 75; also the sections Matters Not Dealt With in the commentaries
on the individual articles; J.K. Gamble, The Treaty/Custom Dichotomy: An Overview,
Texas ILJ 16 (1981) 309 f.
preamble 51

not regulated by the provisions of the present Convention.38 The formula-


tion chosen permits the conclusion that the Preamble neither envisages an
hierarchical priority of treaties over customary law,39 nor does it expound the
declaratory nature of treaty rules.40 By the same token, it does not exclude
other sources of international law, in particular, the general principles of law
as set forth in Article 38, subpara. 1(c) of the ICJ-Statute (N. 9).41 This is
conrmed by Article 3, para. (b) (q.v., N. 6). In fact, the eighth preambular
para. amounts to a saving clause which can also be found in Articles 3, para.
(b), 4, 38 and 43 (q.v.).42

11. Closing Statement


In the closing statement where States declare they have agreed as follows, 17
they conrm that they are bound by the ensuing articles of the Convention
and its Annexes, as declared in the opening sentence of the Preamble (N. 7;
Article 85, N. 1.)

C. APPRECIATION

The various paras. of the Preamble may assist in the interpretation of the 18
Convention in various ways, inter alia:
the rst preambular para. emphasises the Conventions position in its historical context
(N. 8);
the second preambular para. places the Convention as a treaty squarely within the
framework of international law and in particular within the sources of international
law (N. 9);
the third preambular para. mentions the principle of free consent which is otherwise
not mentioned as such in the Convention (N. 10);

38
Statement by the Swiss delegation, OR 1969 Plenary 170, para. 21 (the Conference had
succeeded in reducing a new and substantial part of customary law to writing; but gaps
remained so that occasionally it was still necessary, in the practice of international relations,
to fall back on custom); the Italian delegation, ibid. 172, para. 4.
39
Contra the Polish delegation, ibid. 176, para. 13 ([preambular para. 8 restated] the rule
that customary rules were subsidiary to the treaty rules established in the Convention).
40
Contra the Ecuadorian delegation, ibid. 171, para. 25 (customary practice tended to nd
its source in treaty rules, in other words treaty rules acquired a universal dimension as a
result of custom).
41
Contra the Spanish delegation, ibid. 173, para. 49 ([preambular para. 8 excludes] the
principles of law referred to in Article 38 of the Statute of the International Court of
Justice); dierently the Uruguayan delegation, ibid. 172, para. 37 (the provisions of
the Convention would continue to be governed by the general rules of international law,
regardless of their source, in conformity with Article 38 of the Statute of the International
Court of Justice).
42
See Castren, Festschrift Verdross p. 72 (soupape de sret).
52 preamble

the fourth preambular para. emphasises the importance of the settlement of disputes
by peaceful means, again not mentioned as such in the Convention (N. 11);
the fth preambular para. recalls the respect for obligations which is implicit in the
rule pacta sunt servanda (N. 12; see also Article 26 );
the sixth preambular para. refers to the various fundamental principles of international
law and thus ties the Convention to the UN Charter (N. 13);
the seventh preambular para. identies the Convention as part of the endeavours of
the International Law Commission (N. 14);
the eighth preambular para. contains a further saving clause as to customary inter-
national law (N. 16).

19 On the whole, the considrants (recitals) and the preambular paras. appear
precisely and elegantly drafted. In the words of the Uruguayan delegation in
Vienna in 1969, it was an eminently legal preamble for a convention whose
content was eminently legal.43 As a minor point, it may be questioned whether
human rights should have been mentioned at all (see the sixth preambular
para., N. 13) in the context of an instrument concerned with the relations
between States (Article 1, q.v.).44

43
OR 1969 Plenary 171, para. 33; also the Nepalese delegation, ibid. 175, para. 82 (con-
ciseness and objectivity of the preamble . . . harmonized perfectly with the Convention
itself ).
44
See the statements by the delegation of Uruguay, ibid. 172, para. 34 (no special link with
the convention); and of Sweden (Blix), ibid. 178, para. 32.
PART I
INTRODUCTION
Article 1
Scope of the present Convention

The present Convention applies to treaties between States.


Article 1 Porte de la prsente Convention

La prsente Convention sapplique aux traits entre Etats.


Artikel 1 Geltungsbereich dieses bereinkommens

Dieses bereinkommen ndet auf Vertrge zwischen Staaten Anwendung.


ILC Draft 1966

Article 1The scope of the present articles

The present articles relate to treaties concluded between States.


Materials:

Waldock Report I: Article 2.


Minutes: YBILC 1962 I 47 , 192 f, 248 f, 266.
ILC Draft 1962: Article 2.
Waldock Report IV: YBILC 1965 II 16.
Minutes: YBILC 1965 I 7 , 244, 256.
ILC Draft 1965: Article 0.
Minutes: YBILC 1966 I/2 324, 348.
ILC Draft 1966: Article 1.
Minutes: OR 1968 CoW 11 , 58 f; OR 1969 Plenary 3.

Vienna Conference Vote: 98:0:0


56 article

Selected Literature:

G.E. do Nascimento e Silva, The 1969 and the 1986 Conventions on the Law of Treaties:
A Comparison, in: Y. Dinstein/M. Tabory (eds.), International Law at a Time of Perplexity.
Essays in Honour of Sh. Rosenne (1989) 461 ; Ph. Gautier, in: Corten/Klein (eds.) 27 ;
H. Mosler, Subjects of International Law, EPIL 4 (2000) 710 ; W. Riphagen, The Sec-
ond Round of Treaty Law, in: F. Capotorti et al. (eds.), Du droit international au droit de
lintgration. Liber Amicorum P. Pescatore (1987) 565 ; Sh. Rosenne, Developments in
the Law of Treaties 19451986 (1989); Id, The Perplexities of Modern International Law
(2004); H. Steinberger, Sovereignty, EPIL 4 (2000) 500 .

The basis of this commentary was prepared by Alison Wiebalck.


scope of the present convention 57

CONTENTS
Paras.

A. History ...................................................................................... . 1
B. Interpretation of Article 1 ............................................................. 3
C. Context .............................................................................................. 10
1. Relationship to Other Provisions ..................................................... 10
2. Matters not Dealt With ................................................................... 11
3. Customary Basis of Article 1 ............................................................ 12
D. Appreciation ...................................................................................... 13

A. HISTORY

After some initial hesitation in 1950,1 all four ILC Special RapporteursBri- 1
erly, Lauterpacht, Fitzmaurice and Waldock (History of the Convention,
N. 212)were in favour of extending the future Conventions scope to
treaties involving other subjects of international law.2 However, in response
to the debate in the ILC in 1962 and the Governments observations on the
1962 ILC Draft,3 Waldock Report IV proposed limiting the draft conven-
tion to treaties between States only.4 In 1965 various members opposed
deleting other subjects, though eventually the narrower scope was adopted
in the interests of clarity.5 The ILC then removed from the draft articles all
references to other subjects of international law.6 The nal Article 1 of the
ILC Draft 1966 diered in its text, though not in substance, from Article 1
of the Convention.7

1
See Hudson, YBILC 1950 I 79, subpara. 55(b).
2
YBILC 1950 II 223, 1953 II 90, 1956 II 106, and 1962 II 35, respectively.
3
ILC Draft 1962, YBILC 1962 II 161, para. 21; the debate is at YBILC 1962 I 47 , 192
f, 248 f, and 266.
4
YBILC 1965 II 16, namely its Article 2, subpara. 2(b) ([t]he fact that the present articles
do not apply . . . to international agreements concluded by subjects of international law
other than States, shall not be understood as aecting the legal force that such agreements
possess).
5
Statement in Vienna by the Expert Consultant Sir Humphrey Waldock, OR 1968 CoW
20, para. 78. For the opposition, see Ago, YBILC 1965 I 7, para. 58; Rosenne, ibid. 8,
paras. 68 f; and Briggs, ibid. 10, para. 7 (retrograde step). For the Commissions reasons,
see YBILC 1965 II 158, para. 19 ; Rosenne, Developments 45 . The debate is at YBILC
1965 I 7 .
6
For example, from Article 6 (q.v.).
7
YBILC 1966 II 187.
58 article

2 At the Vienna Conference in 1968, amendments were tabled expressing


criticism of the proposed limitation of the Convention to treaties between
States.8 The US amendment advocated including treaties between States and
other subjects of international law.9 Intense debate ensued.10 Although the
increasing importance of treaties concluded by international organisations
was recognised, it was felt that the subject could not be examined adequately
within the connes of the Conference.11 The US withdrew its amendment,
ostensibly to avoid delaying the Conference.12 By way of compromise, in 1969
the Conference adopted Article 1 (by 98 votes to none)13 with a Resolution
relating to Article 1 (q.v.),14 recommending the ILC to study separately the
question of treaties concluded between States and international organisations
or between two or more organisations.
Both politics and practical issues played a part in Vienna. The then USSR, for instance,
was wary of enhancing the status of international organisationsespecially that of the
UN.15 Furthermore, although the Conference was attended by plenipotentiary repre-
sentatives of States, international organisations were represented by observers only.16

B. INTERPRETATION OF ARTICLE 1

3 The Convention covers most issues of treaty law, but it does not apply to all
treaties. Given the diversity of international agreements and the varying nature
of the subjects of international law which make them, it appears essential at
the outset to limit the scope of the Convention clearly in a separate article.17

8
OR Documents 110, subpara. 24(b); Sweden proposed deleting the word concluded,
while Hungary was in favour of deleting Article 1 altogether.
9
Introduced by Kearney of the US delegation, OR 1968 CoW 11, para. 3 .
10
See, e.g., the exchange between the delegations of Iraq and the UK, OR 1968 CoW 19,
para. 56 . The debate is recorded at OR 1968 CoW 11 , and 58 f.
11
Statement by Tsuruoka of the Japanese delegation, OR 1968 CoW 19, para. 62.
12
Kearney of the US delegation, OR 1968 CoW 20, para. 64; also Kearney/Dalton, AJIL
64 (1970) 502 f.
13
OR 1969 Plenary 3.
14
Ibid. 179.
15
Rosenne, Developments 45 ; see the statement in Vienna by Usenko of the then USSR
delegation, OR 1969 Plenary 178 f, para. 43 ([m]any international organisations were
not universal in character but represented mainly the Western States).
16
Jimnez de Archaga of the Uruguayan delegation, OR 1968 CoW 15, para. 12., The
non-State subjects represented in Vienna are listed in the Final Act of the UN Conference
on the Law of Treaties (q.v., N. 4).
17
Tunkin in the ILC, YBILC 1965 I 14, para. 60; Paredes, ibid. 15, para. 62; Waldock
in the ILC, YBILC 1965 I 8, para. 60 (there would be serious implications if it were
suggested in a denition that the contents covered more than they actually did).
scope of the present convention 59

The sole, but important purpose of Article 1 is, therefore, to emphasise


that the present Convention applies to treaties between States.18 The
Convention does not apply to treaties between States and other subjects of
international law or between other subjects themselves. It follows that Article
1 does not contain a general rule on treaties and subjects of international
law (N. 12).19
Nevertheless, Article 1 is expressed in positive rather than exclusionary terms;20 4
there is no implication that the Convention cannot apply to agreements
which are not treaties between States. In particular, neither the treaty-making
capacity of international organisations, nor the legal nature of their agree-
ments have been impaired.21
The present Convention encompasses the entire Vienna Convention on the 5
Law of Treaties of 1969, i.e., its Articles 185, the Preamble and all relevant
resolutions, declarations and annexes thereto (Article 85, N. 1). For the
interpretation of the Convention, recourse may be had thereto (Article 31,
para. 2, N. 1518) and to the travaux prparatoires (Article 32, q.v.). Most
provisions of the Convention apply also independently of the Convention
qua (at least emerging) customary law (Issues of Customary international law,
N. 5262).
The words the present Convention occur in all ve articles in Part I. Each 6
introductory Article concerns the applicability of the Convention to treaties,
i.e., they are concerned with the Conventions relationship to other treaties,
not with the other treaties themselves. These provisions limit the scope of
the Convention without prejudicing other international agreements between
subjects of international law generally.
The treaties to which Article 1 refers are discussed in Article 2, subpara. 1(a) 7
(N. 224).
The Convention concerns treaties between States. (Of course, the treaty may 8
also be expressed to be between Heads of State, Governments, ministries
or other State agencies).22 The term is employed without qualications or
indeed a denition. However, the travaux prparatoires disclose that the term
has to be given:

18
ILC Report 1966, YBILC 1966 II 187, para. 3.
19
Gautier, Article 1, N. 1.
20
Rosenne, Developments 22.
21
The scope of the Convention does not imply any loss of legal force which these other agree-
ments or acts may possess under general international law, Waldock Report I, YBILC
1962 II 35, para. 2; ILC Report 1966, YBILC 1966 II 187, para. 4.
22
Aust, Modern Treaty Law 28 f, 58 f.
60 article

the same meaning as in the Charter of the United Nations, the Statute of the Court, the
Geneva Conventions on the Law of the Sea and the Vienna Convention on Diplomatic
Relations; i.e., it means a State for the purposes of international law.23
The State is the main subject of international law and the basic unit of international
relations. In international law it is an entity having a permanent population in a dened
territory under its own sovereign government with the capacity to enter into relations
with other States.24 As an essential condition of statehood, known as independence
or sovereignty, States possess legal personality of the fullest kind.25 Only States are
accorded full sovereignty. One of the oldest and most typical attributes of sovereignty
is the competence to conclude treaties (Article 6, N. 1).26 States themselves will decide
whether or not a particular entity is a State. If, in the opinion of existing States, a State
fulls the conditions of statehood, it is said to be recognised. A recognised State pos-
sessesand can exercisethe rights, duties and powers associated with law-making
attributed to States by international law.27
The situation of international agreements with other subjects of international law is
discussed in Article 3 (q.v., N. 3).
9 The Convention applies to such treaties between States, i.e., its provisions
are to be put into operation in questions relating to treaties between State
parties. The term applies is procedural. It does not dene a specic right but
indicates the party or parties liable to having the particular right or obligation
under the law of treaties realised.28

C. CONTEXT

1. Relationship to Other Provisions


10 Article 1 is to be read in conjunction with the following provisions:
Article 2, subpara. (1)(a) (q.v., N. 224) denes the term treaty for the purposes of
the Convention;
Article 3 (q.v.) contains a general reservation regarding other kinds of international
agreements not covered by Articles 1 and 2, subpara. (1)(a);

23
Article 3 of the ILC Report 1962, YBILC 1962 II 164, para. 2.
24
Article 1 of the Montevideo Convention on the Rights and Duties of States of 1933,
LNTS 165 (1933) 19; Jennings/Watts N. 34.
25
Jennings/Watts N. ; Rosenne, Perplexities 237.
26
McNair, Law of Treaties 35; for other traits, see Steinberger, EPIL 4 (2000) 500 , 502,
and 512.
27
Jennings/Watts N. .
28
The more neutral word relate, employed in the ILC Draft 1966, YBILC 1966 II 187,
was considered too ambiguous and was substituted in Vienna by the word applies; see
the US amendment, OR Documents 110, subpara. 24(b).
scope of the present convention 61

Article 5 (q.v.) provides that the Convention applies to the constitutions of interna-
tional organisations and to treaties adopted within those organisations albeit subject
to the relevant rules of those organisations; and
Article 6 (q.v.) conrms that which is implicit in Article 1, namely, that capacity to
conclude treaties is an essential attribute of State.

2. Matters Not Dealt With


Article 1 does not refer to treaties between States and other subjects of inter- 11
national law, in particular not to treaties between States and international
organisations (N. 4; Resolution to Article 1, q.v.), or between the other subjects
themselves (N. 13).

3. Customary Basis of Article 1


Article 1 does not contain a general and abstract rule and cannot, therefore, 12
harden into customary international law.

D. APPRECIATION

The Convention aims at resolving large and complex issues lying at the very 13
heart of international law. Article 1 reects a workable distillation of the pos-
sible responses to such challenges while conrming the role of the sovereign
State as the main actor on the international scene.29

29
See the oral contribution by Vierdag in PASIL 78 (1984) 280, criticising Article 1 as being
most decient. It could not be taken literally in the sense that . . . all treaties between all
the States of the world, were governed by the Convention. He discusses at ibid. 281, in
particular the General Participation Clause (Article 4, N. 78).
Resolution relating to Article 1

The United Nations Conference on the Law of Treaties,


Recalling that the General Assembly of the United Nations, by its reso-
lution 2166 (XXI) of 5 December 1966, referred to the Conference the
draft articles contained in chapter II of the report of the International
Law Commission on the work of its eighteenth session,
Taking note that the Commissions draft articles deal only with treaties
concluded between States,
Recognising the importance of the question of treaties concluded between
States and international organisations or between two or more interna-
tional organisations,
Cognisant of the varied practices of international organisations in this
respect, and
Desirous of ensuring that the extensive experience of international organi-
sations in this eld to be utilised to the best advantage,
Recommends to the General Assembly of the United Nations that it refer
to the International Law Commission the study, in consultation with the
principal international organisations, of the question of treaties concluded
between States and international organisations or between two or more
international organisations.

Materials: see the materials mentioned in Article 1.

Vienna Conference Vote: 85:0:13

Selected literature: see the literature mentioned in Article 1.


resolution 63

CONTENTS
Paras.

A. History ................................................................................................ 1
B. Interpretation of Resolution ............................................................ 2
C. Appreciation ......................................................................................... 4

A. HISTORY

In 1969 the Conference adopted, together with Article 1 (q.v., N. 12), the 1
Resolution relating to Article 1, as proposed by the Swedish delegation.1

B. INTERPRETATION OF RESOLUTION

The Resolution conrms that the Convention itself deals exclusively with 2
treaties between States (Article 1, N. 8). It recognises the importance of the
question of treaties concluded between States and international organisa-
tions or between two or more organisations, with an appreciation of the
delicate nature of the problem in view of the varied practises of international
organisations. Given the extensive experience of international organisations
in this eld, the Vienna Conference was desirous of utilising their expertise
to the best advantage.
On 12 November 1969 the General Assembly of the United Nations 3
unanimously adopted Res. 2501 (XXIV), recommending the ILC to study
the matter at issue. The resulting Vienna Convention on the Law of Treaties
Between States and International Organisations or Between International
Organisations was adopted on 21 March 1986.2
The rst 72 Articles of the 1986 Vienna Convention deal with the same subjects as
the rst 72 articles of the 1969 Convention. Suitably adapted, the provisions of the

1
See Blix of the Swedish delegation, OR 1968 CoW 15, para. 5. The proposal received wide
support; see the statements, e.g., by the delegations of Uruguay ( Jimnez de Archaga),
ibid. para. 12; Israel, ibid. 16, para. 19; Brazil, ibid. 18, para. 36; Finland (Castren), ibid.
para. 39; Switzerland (Bindschedler), ibid. para. 44. The Resolution was adopted at OR
1969 Plenary 179, and annexed to the Final Act of the Conference (q.v.; see also Article 85,
N. 1). See also Rosenne, Law of Treaties 105 f.
2
ILM 25 (1986) 543 .
64 article

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

C. APPRECIATION

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

3
Aust, Modern Treaty Law 8.
Article 2
Use of terms

1. For the purposes of the present Convention:

(a) treaty means an international agreement concluded between


States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instru-
ments and whatever its particular designation;
(b) ratication, acceptance, approval and accession mean in
each case the international act so named whereby a State establishes
on the international plane its consent to be bound by a treaty;
(c) full powers means a document emanating from the competent
authority of a State designating a person or persons to represent
the State for negotiating, adopting or authenticating the text
of a treaty, for expressing the consent of the State to be bound
by a treaty, or for accomplishing any other act with respect to a
treaty;
(d) reservation means a unilateral statement, however phrased
or named, made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude
or to modify the legal eect of certain provisions of the treaty in
their application to that State;
(e) negotiating State means a State which took part in the drawing
up and adoption of the text of the treaty;
(f ) contracting State means a State which has consented to be bound
by the treaty, whether or not the treaty has entered into force;
(g) party means a State which has consented to be bound by the
treaty and for which the treaty is in force;
(h) third State means a State not a party to the treaty;
(i) international organisation means an intergovernmental organi-
sation.
66 article

2. The provisions of paragraph 1 regarding the use of terms in the present


Convention are without prejudice to the use of those terms or to the
meanings which may be given to them in the internal law of any State.

Article 2 Expressions employes

1. Aux ns de la prsente Convention:

a) lexpression trait sentend dun accord international conclu par crit entre
Etats et rgi par le droit international, quil soit consign dans un instrument
unique ou dans deux ou plusieurs instruments connexes, et quelle que soit sa
dnomination particulire;
b) les expressions ratication, acceptation, approbation et adhesion
sentendent, selon le cas, de lacte international ainsi dnomm par lequel
un Etat tablit sur le plan international son consentement tre li par un
trait;
c) lexpression pleins pouvoirs sentend dun document manant de lautorit
comptente dun Etat et dsignant une ou plusieurs personnes pour reprsen-
ter lEtat pour la ngociation, ladoption ou lauthentication du texte dun
trait, pour exprimer le consentement de lEtat tre li par un trait ou pour
accomplir tout autre acte lgard du trait;
d) lexpression reserve sentend dune dclaration unilatrale, quel que soit
son libell ou sa dsignation, faite par un Etat quand il signe, ratie, accepte
ou approuve un trait ou y adhre, par laquelle il vise exclure ou modier
leet juridique de certaines dispositions du trait dans leur application cet
Etat;
e) lexpression Etat ayant particip la ngociation sentend dun Etat ayant
particip llaboration et ladoption du texte du trait;
f ) lexpression Etat contractant sentend dun Etat qui a consenti tre li par
le trait, que le trait soit entr en vigueur ou non;
g) lexpression partie sentend dun Etat qui a consenti tre li par le trait
et lgard duquel le trait est en vigueur;
h) lexpression Etat tiers sentend dun Etat qui nest pas partie au trait;
i) lexpression organisation internationale sentend dune organisation inter-
gouvernementale.

2. Les dispositions du paragraphe 1 concernant les expressions employes dans la


prsente Convention ne prjudicient pas lemploi de ces expressions ni au sens
qui peut leur tre donn dans le droit interne dun Etat.

ZACHARIAS
use of terms 67

Artikel 2 Begrisbestimmungen

1. Im Sinne dieses bereinkommens

a) bedeutet Vertrag eine in Schriftform geschlossene und vom Vlkerrecht


bestimmte internationale bereinkunft zwischen Staaten, gleichviel ob sie
in einer oder in mehreren zusammengehrigen Urkunden enthalten ist und
welche besondere Bezeichnung sie hat;
b) bedeutet Ratikation, Annahme, Genehmigung und Beitritt jeweils die
so bezeichnete vlkerrechtliche Handlung, durch die ein Staat im internationalen
Bereich seine Zustimmung bekundet, durch einen Vertrag gebunden zu
sein;
c) bedeutet Vollmacht eine vom zustndigen Organ eines Staates errichtete
Urkunde, durch die einzelne oder mehrere Personen benannt werden, um
in Vertretung des Staates den Text eines Vertrags auszuhandeln oder als
authentisch festzulegen, die Zustimmung des Staates auszudrcken, durch
einen Vertrag gebunden zu sein, oder sonstige Handlungen in bezug auf
einen Vertrag vorzunehmen;
d) bedeutet Vorbehalt eine wie auch immer formulierte oder bezeichnete, von
einem Staat bei der Unterzeichnung, Ratikation, Annahme oder Genehmi-
gung eines Vertrags oder bei dem Beitritt zu einem Vertrag abgegebene ein-
seitige Erklrung, durch die der Staat bezweckt, die Rechtswirkung einzelner
Vertragsbestimmungen in der Anwendung auf diesen Staat auszuschliessen
oder zu ndern;
e) bedeutet Verhandlungsstaat einen Staat, der am Abfassen und Annehmen
des Vertragstextes teilgenommen hat;
f ) bedeutet Vertragsstaat einen Staat, der zugestimmt hat, durch den Ver-
trag gebunden zu sein, gleichviel ob der Vertrag in Kraft getreten ist oder
nicht;
g) bedeutet Vertragspartei einen Staat, der zugestimmt hat, durch den Vertrag
gebunden zu sein, und fr den der Vertrag in Kraft ist;
h) bedeutet Drittstaat einen Staat, der nicht Vertragspartei ist;
i) bedeutet internationale Organisation eine zwischenstaatliche Organisation.

2. Die Bestimmungen des Absatzes l ber die in diesem bereinkommen verwen-


deten Begrie beeintrchtigen weder die Verwendung dieser Begrie noch die
Bedeutung, die ihnen im innerstaatlichen Recht gegebenenfalls zukommt.

ZACHARIAS
68 article

ILC Draft 1966

Article 2Use of Terms

1. For the purposes of the present articles:

(a) Treaty means an international agreement concluded between States in


written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever its
particular designation.
(b) Ratication, Acceptance, Approval and Accession mean in each case
the international act so named whereby a State establishes on the international
plane its consent to be bound by a treaty.
(c) Full powers means a document emanating from the competent authority of
a State designating a person to represent the State for negotiating, adopting
or authenticating the text of a treaty, for expressing the consent of the State
to be bound by a treaty, or for accomplishing any other act with respect to
a treaty.
(d) Reservation means a unilateral statement, however phrased or named,
made by a State, when signing, ratifying, acceding to, accepting or approving
a treaty, whereby it purports to exclude or to vary the legal eect of certain
provisions of the treaty in their application to that State.
(e) Negotiating State means a State which took part in the drawing up and
adoption of the text of the treaty.
(f ) Contracting State means a State which has consented to be bound by the
treaty, whether or not the treaty has entered into force.
(g) Party means a State which has consented to be bound by the treaty and
for which the treaty is in force.
(h) Third State means a State not a party to the treaty.
(i) International organisation means an intergovernmental organisation.

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

Materials:

WALDOCK Report 1: Article 1.


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

ZACHARIAS
use of terms 69

ILC Report 1962: Article 1.


WALDOCK Report IV: Article 1.
Minutes: YBILC 1965 1 7 , 244, 256, 307 f.
ILC Report 1965: Article 1.
Minutes: YBILC 1966 1/2 287 f, 324 f, 348.
ILC Report 1966: Article 2.
Minutes: OR 1968 CoW 21 ; OR Plenary 3 f, 157.

Vienna Conference Vote: 94:0:3


Subpara. 1(a) treaty

Selected Literature:

B-J
J.A. Barberis, Le concept de trait international et ses limites, AFDI 30 (1984) 239 ;
R. Bernhardt, Treaties, EPIL 4 (2000) 926 ; A. Bolintineanu, Expression of Consent
to be Bound by a Treaty in the Light of the 1969 Vienna Convention, AJIL 68 (1974) 672
; C. Brlmann, Law-Making Treaties: Form and Function in International Law, Nordic
JIL 74 (2005) 383 ; C. Chinkin, A Mirage in the Sand? Distinguishing Binding and Non-
Binding Relations Between States, Leiden JIL 10 (1997) 223 ; R.E. Dalton, International
Documents of a Non-Legally Binding Character, reproduced in: AJIL 88 (1994) 515 ; D.C.
Dicke, The Heleanna Case and International Lawmaking Treaties: A New Form of Concluding
a Treaty? AJIL 69 (1975) 624 ; M. Fitzmaurice, The Identication and Character of Treaties
and Treaty Obligations Between States in International Law, BYBIL 73 (2002) 141 ; J.K.
Gamble, Multilateral Treaties: The Signicance of the Name of the Instrument, Californian
WILJ 10 (1980) 1 ; Ph. Gautier, Article 2, in: Corten/Klein (eds.) 48 ; F.S. Hamzeh,
Agreements in Simplied FormA Modern Perspective, BYBIL 43 (19689) 179 ; D.N.
Hutchinson, The Signicance of the Registration or Non-Registration of an International
Agreement in Determining Whether or Not It Is a Treaty, Current LP 46 (1993) 257 ; K.I.
Igweike, The Denition and Scope of Treaty under International Law, IJIL 28 (1988) 249
; R.Y. Jennings, Treaties as Legislation, in: G.M. Wilner (ed.), Jus et societas. Essays in
Tribute to W. Friedman () .

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

ZACHARIAS
70 article

R-Z
K. Raustiala, Form and Substance of International Agreements, AJIL 99 (2005) 581 ;
S. Rosenne, Developments in the Law of Treaties 19451986 (1989); Id., The Perplexities
of Modern International Law (2004); Id., The Qatar/Bahrain Case. What is a Treaty? A
Framework Agreement and the Seising of the Court, Leiden JIL 8 (1995) 161 ; M. Rotter,
Die Abgrenzung zwischen vlkerrechtlichem Vertrag und ausserrechtlicher zwischenstaatli-
cher Abmachung. Zu Art. 2(1)(a) der Vienna Convention on the Law of Treaties 1969, in:
R. Marcic et al. (eds.), Internationale Festschrift fr A. Verdross zum 80. Geburtstag (1971)
413 ; Id., The Austrian State Treatyor What is Left of it, in: W. Benedek, Development
and Developing International and European Law (1999) 725 ; A.P. Rubin, The International
Legal Eects of Unilateral Declarations, AJIL 71 (1977) 1 ; G. Sacerdoti, Bilateral Treaties
and Multilateral Instruments on Investment Protection, RC 269 (1997) 255 ; E. arevi,
Vlkerrechtlicher Vertrag als Gestaltungsintrument der Verfassungsgebung: Das Daytoner
Verfassungexperiment mit Przedenzwirkung? AVR 39 (2001) 297 ; O. Schachter, The
Twilight Existence of Non-Binding Agreements, AJIL 71 (1977) 296 ; E.W. Vierdag, The
Law Governing Treaty Relations between Parties to the Vienna Convention on the Law
of Treaties and States not Party to the Convention, AJIL 76 (1982) 779 ; W. Wengler,
Rechtsvertrag, Konsensus und Absichtserklrung im Vlkerrecht, Juristenzeitung 31 (1976)
193 ; K. Widdows, What is an Agreement in International Law? BYBIL 50 (1979) 117
; L. Wildhaber, Treaties, Multilateral, EPIL 4 (2000) 949 ; K. Zemanek, International
OrganizationsTreaty-Making Power, EPIL 2 (1995) 1343 ; Id., Unilateral Legal Acts
Revisited, in: K. Wellens (ed.), International Law: Theory and Practice Essays in Honour
of E. Suy (1998) 209 .

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


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

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

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


Subpara. 1(c) Full Powers

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

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


Subpara. 1(d) Reservation

Selected Literature (in addition to the literature mentioned in Articles 1923, q.v.):

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

ZACHARIAS
use of terms 71

Subpara. 1(e) Negotiating State

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

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


Subpara. 1(f ) Contracting State
Selected Literature:

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


Subpara. 1(g) Party

Selected Literature:

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


Subpara. 1(h) Third State

Selected Literature (in addition to the literature mentioned in Articles 3438, q.v.):

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


Subpara. 1(i) International Organisation

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

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

ZACHARIAS
72 article

CONTENTS
Paras.

A. Scope of Article 2 .............................................................................. 1


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

ZACHARIAS
use of terms 73

H. Party (Subpara. 1[g]) ....................................................................... 47


1. History ............................................................................................ 47
2. Interpretation of Subpara. 1(g) ........................................................ 48
3. Relationship to Other Provisions ..................................................... 49
I. Third State (Subpara. 1[h]) ............................................................ 50
1. History ............................................................................................ 50
2. Interpretation of Subpara. 1(h) ........................................................ 51
3. Relationship to Other Provisions ..................................................... 52
J. International Organisation (Subpara. 1[i]) ................................. 53
1. History ............................................................................................ 53
2. Interpretation of Subpara. 1(i) ......................................................... 54
3. Relationship to Other Provisions ..................................................... 55
K. Proviso in Para. 2 ............................................................................... 56
L. Appreciation of Article 2 .................................................................. 57

A. SCOPE OF ARTICLE 2

Article 2 deals with the use of terms. It assigns particular meanings to cer- 1
tain expressions frequently referred to in the Convention, and safeguards
their use when employed in other treaties with a dierent meaning.1 Thus,
as the opening sentence explains, the meanings mentioned are purely for
the purposes of the present Convention. The aim of Article 2 is to assist
the reader of the Convention when interpreting its terms and, not least, to
ensure that the Convention articles are read as a combined whole.2 While
in fact the meanings serve as denitions in a broader sense, the Convention
refrains from employing this word in view of the limited reach of the terms.3
Still, while the meanings are special as in Article 31, para. 4 (q.v., N. 24),

1
See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968
CoW 34, para. 30.
2
Statements in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1969 Plenary
4, para. 16; Ago, President of the Vienna Conference, ibid. para. 17 ([i]f those who later
interpreted the text noted dierences between the [Convention] and other conventions, they
would ask themselves what had been the reasons for these dierences, and that might lead
to diculties of interpretation); and Waldock in the ILC YBILC 1965 I 14, para. 56 (it
would be a mistake to place any reliance on the assumption that a long series of . . . articles
would be read as a whole).
3
See the statements in the ILC by Briggs, YBILC 1962 I 172, para. 69 ([the ILC] did not
propose to lay down theoretical denitions, but merely . . . the manner in which certain terms
were used in the [Convention], and at YBILC 1965 I 10, para. 8 (open the oodgates
to doctrinal disputes by implying that the [ILC] was attempting a logical scientic deni-
tion); and by Waldock, ibid. 15 f, para. 71 (there was a tendency to regard denitions
as something absolute).
ZACHARIAS
74 article

it can be assumed that the terms have developed into general international
law (see, e.g., N. 23).4 The UN Law of the Sea Convention of 1982 contains
a list of meanings with a similar opening sentence.5
The list in para. 1 is not exhaustive.6 Interestingly, certain terms originally listed in the
travaux prparatoires are no longer mentioned in Article 2, e.g., signature (N. 26) and
bilateral and multilateral treaties.7 The use of the term depositary has been transferred
to Articles 76 and 77 where the various functions are listed (q.v.).8

B. TREATY (SUBPARA. 1[A])

1. Background

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

4
Gautier, Article 2, N. 1.
5
See its Article 1, para. 1 ([f ]or the purposes of this Convention).
6
See the statements by Bindschedler of the Swiss delegation in Vienna, OR 1968 CoW 27,
para. 49 ([t]he list of terms in Article 2 clearly could not be exhaustive and must contain
only the absolutely necessary denitions); and by the Expert Consultant, Sir Humphrey
Waldock, ibid. 34, para. 26 ([the ILC] had not intended to list all the necessary condi-
tions for the validity of treaties).
7
Employed in Article 1 of Waldock Report I, YBILC 1962 I 31. See also Gautier, Article
2, N. 5255.
8
Originally dened in Waldock, Report I, ibid. 32.
9
Myers, AJIL 51 (1957) 576, identies nearly 40 dierent names. The rst paragraph
of the Preamble (q.v., N. 8) refers to the fundamental role of treaties in the history of
international relations. On the topic, see generally McNair, Law of Treaties 22 ; Id.,
The Functions and Diering Legal Characteristics of Treaties, BYBIL 11 (1930) 100 ;
M. Brandon, Analysis of the Terms Treaty and International Agreement for Purposes
of Registration Under Article 102 of the United Nations Charter, AJIL 47 (1953) 49 ;
Sh. Rosenne, United Nations Treaty Practice, RC 86 (1954 II) 281 ; K.-H. Ziegler,
Conclusion and Publication of International Treaties in Antiquity, Israel LR 29 (1995)
233 .
10
Lauterpacht, YBILC 1953 II 105 (in most cases, there is no apparent reason for the
variation in the term used . . . dependent upon a factor no more decisive than the mood of
the draftsman); McNeill, AJIL 88 (1994) 823 at n. 8 (terminology a matter of diplo-
matic nuance). Article 36, subpara. 2(a) of the ICJ Statute refers to a treaty, and Article
38, subpara. 1(a) to international conventions.
ZACHARIAS
use of terms 75

relation under international law between themselves.11 Delegates at the San


Francisco Conference in 1945 expressed the need for a careful denition of
a treaty.12 However, as there was still uncertainty whether or not less formal
international agreements could properly be called treaties, Article 102 of the
UN Charter on the registration of such instruments remained ambiguous,
referring to every treaty and every international agreement (italics added).13
More than anything else, it was perhaps the increase in the number and
inuence of international organisations after 1945 which made it necessary
to examine more closely the nature of agreements between States.

b) History
The ILC examined the meaning of the term treaty for over 16 years.14 In 3
1962 Waldock Report I attempted separate denitions of the terms inter-
national agreement and treaty, placing the general term rst.15 The ILC
Report 1962 combined the two denitions.16 The article was re-examined in
Waldock Report IV17 and subjected to further debate in the ILC in 1965.18
Following further debate in 1966, the ILC adopted in its nal Report Article
2, subpara. 1(a) which was to survive the Conference unchanged.19 In 1968
the Conference set out to discuss various amendments. The US amendment
to re-introduce other subjects of international law was withdrawn while
other amendments were referred to the Drafting Committee without deci-
sion. Final consideration, however, was deferred pending examination of the

11
AJIL 29 (1935) Supplement 686.
12
UNCIO XIII, 586, referred to by Knapp/Martens, Article 102, in: Simma (ed.), Charter
of the United Nations, 1105.
13
Italics added. See Knapp/Martens, ibid. 1105; Aust, Modern Treaty Law 17; Waldock
in the ILC, YBILC 1962 I 168, para. 5.
14
Brierly Report I, YBILC 1950 II 226; Lauterpacht Report I, YBILC 1953 II 90;
Fitzmaurice Report I, YBILC 1956 II 95 . On the history, see also Fitzmaurice, BYBIL
73 (2002) 146 ; Widdows, BYBIL 50 (1979) 126 .
15
See Article 1, paras. (a) and (b), YBILC 1962 II 31 ([an] international agreement means
an agreement intended to be governed by international law and concluded between two
or more States or other subjects of international law possessing international personality
and having capacity to enter into treaties . . .; [b] Treaty means any international agreement
in any written form, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation, original italics); also the statement
by Waldock in the ILC, YBILC 1962 I 47 f, para. 33.
16
YBILC 1962 II 161 f. In the ILC, see the statements by Amado, YBILC 1962 I 49, para.
53; Waldock, ibid. 51, paras. 2 f, and 168, paras. 4 f; and Tsuruoka, ibid. 168, para. 6,
and 214, para. 29.
17
YBILC 1965 II 10 .
18
For the debates, see YBILC 1965 I 5 .
19
ILC Draft 1966, YBILC 1966 II 187 ; for the debate, see YBILC 1966 I/2 324, para.
56, and 348, para. 185, respectively.
ZACHARIAS
76 article

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

2. Interpretation of Subpara. 1(a)

a) Scope
4 Article 2 subpara. 1(a) denes a treaty as meaning an international
agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation. Thus,
it sets out the various criteria which have to be met for an international
agreement to qualify as a treaty for the purposes of the present Conven-
tion (N. 619).23 The provision serves as a tool for interpretation and does
not set out a scientic denition nor stipulate the necessary conditions for
the validity of treaties.24
5 The notion of a treaty is employed throughout the Convention as a generic
term covering all forms of written international agreements between States.25
The sub-paragraph is not independent and must be read together with the
opening line of Article 2, para. 1 (N. 1) and Article 3 (q.v.), and in conjunc-
tion with all the articles to which it relates.26 Conversely, each succeeding

20
OR 1968 CoW 38, para. 44. The debate is at OR 1968 CoW 21 ; see in particular the
statements by the delegations of Canada, ibid. 23, para. 28; Switzerland (Bindschedler),
ibid. 27, para. 49; and Argentina (Ruda), ibid. 28, para. 66 (current debate should be
a provisional discussion of Article 2, pending the approval of all the other articles). The
amendments are reproduced at OR Documents 111, para. 35.
21
The debate is reproduced at OR 1969 Plenary 3 f, 157.
22
Ibid. 157, para. 48. The dierent terms in Article 2 were discussed partly independently
and partly in connection with the substantive articles to which they related, Rosenne,
Law of Treaties 110.
23
ILC Report 1966, YBILC 1966 II 188, para. 1. See the statement in Vienna by the Expert
Consultant, Sir Humphrey Waldock, OR 1968 CoW 34, para. 30, and in the ILC,
YBILC 1965 I 15 f, para. 74 (merely to indicate that it was a statement of the meaning
to be attached to particular phrases in the draft articles); Waldock Report IV, YBILC
1965 II 11, para. 1.
24
See statements in Vienna by the Chairman of the Drafting Committee, Yasseen, OR 1969
Plenary 4, para. 16; and the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW
34, para. 26; Briggs, YBILC 1965 I 10, para. 8.
25
ILC Report 1962, YBILC 1962 II 161, para. 2; ILC Report 1966, YBILC 1966 II 188,
para. 2. See Brlmann, Nordic JIL 74 (2005) 392 ([t]he conventional law of treaties is
thus geared to form and procedure).
26
See the United Arab Republic delegation (el-Erian) in Vienna, OR 1968 CoW 26, para.
35: Waldock in the ILC, YBILC 1962 I 46, para. 13.
ZACHARIAS
use of terms 77

article (as well as Article 1, q.v.) must be read together with the use of the
term. This broad use of the term treaty sweeps into the law of treaties many
forms of international agreements between Stateswhether in writing, bi- or
multilateral,27 contractual or law-making,28 formal or informal.29
The Convention refers to multilateral treaties in Articles 40, 41, 55, 68, 60, para. 1, 69,
para. 4, and 70, para. 2 (q.v.). Bilateral treaties are referred to only in Article 60, para.
1 (q.v., N. 17).

b) International Agreement
Article 2, subpara. 1(a) denes a treaty for purposes of the Convention as 6
being an international agreement. However, the latter is not a synonym of
the former. For instance, Article 102 of the UN Charter refers to every treaty
and every international agreement.30 As Article 3 (q.v.) conrms, the notion
of agreement is wide, and in particular wider than that of treaty. Thus,
all treaties are international agreements but not all international agreements
are treaties.31
The term agreement can refer to: (i) the concrete, i.e., a particular text in 7
written form; or (ii) the abstract, i.e., the meeting of minds consisting of an
oer and its acceptance between the parties (the synallagma). Agreement in
Article 2, subpara. 1(a) in itself contains no particular requirements and refers
to the latter. The purpose of the agreement, reecting the parties intention,
is to create binding legal relations between the parties (rather than merely
political, programmatic or personal relations, N. 15),32 in particular, rights

27
See Jennings/Watts, N. 583. In 1962 the ILC dened a general multilateral treaty as
a multilateral treaty which concerns general norms of international law or deals with mat-
ters of general interest to States as a whole, see Article 1, subpara. 1(c), ILC Report 1962
II 161, para. 23, though the provision was later dropped (N. 3), ILC Report 1966, YBILC
1966 II 189, para. 8. On multilateral treaties, see Wildhaber, EPIL 4 (2000) 949 .
28
On treaties as legislation, see generally Jennings, in: Essays Friedmann 159 ; also
Dicke, AJIL 69 (1975) 625.
29
Kearney/Dalton, AJIL 64 (1970) 503. See also Aust, Modern Treaty Law 19 ; Klab-
bers, AVR 33 (1995) 365.
30
Waldock Report IV, YBILC 1965 II 11, para. 1.
31
Thus, Article 2, subpara. 1(a) refers to an (rather than any) international agreement; on
this, see Briggs, YBILC 1965 I 10, para. 10.
32
Schachter, AJIL 71 (1977) 302; Menon, Revue DISCDP 56 (1978) 135. On the rel-
evance of intention, see the Frontier Dispute (Burkina Faso/Mali) Case, ICJ Reports 1986
573 f; the observation by Mali, ibid. 573, para. 38, according to which the comment by
Malis head of State was merely a witticism of the kind regularly uttered at press confer-
ences ). See also the Note of 20 October 2003 of the Swiss Foreign Ministry, RSDIE
5 (2004) 662 f (un process-verbal rdig lissue dune recontre internationale nest en
principe pas considr comme un trait international).
ZACHARIAS
78 article

and obligations which may, for instance, be declared or enforced in a court


of law.33
8 To be a treaty for the purposes of the Convention, the agreement has to be
international. It creates internationally binding legal obligations (N. 14)
and does not encompass, in particular, agreements falling within a States
domestic sphere or under domestic law, i.e., agreements between individu-
als and other private entities among themselves or with the State (N. 20).34
Thus, the term international corresponds to some extent with the deni-
tion in Article 1 (q.v.), according to which the Convention applies to treaties
between States.35

c) Concluded Between States


9 The treaty in subpara. 1(a) is an international agreement concluded
between States. An agreement cannot be a treaty unless and until it has
been concluded.
10 In international law there is no xed meaning of the term concluded.36 In
the Convention, neither conclude nor conclusion are dened as such.
Analysis of Section I of Part II suggests that to conclude an agreement is to
express consent to be bound by it as provided for in Articles 1117 (q.v.).
It is from that time on that the agreement has legal eect (Article 18, q.v.),
although it is only legally binding once the treaty has entered into force for
that State (N. 48).37
11 Conclusion refers to the whole set of procedureswhether simple or
complexwhich makes a treaty binding.38 Concluded implies a distinct act.

33
Osakwe, Concept 176.
34
Statements by the then USSR delegation in Vienna, OR 1968 CoW 30, para. 91; and by
Gros in the ILC, YBILC 1962 I 215, para. 42. See also Waldock Report I, YBILC 1962
II 32, para. 2; Schachter, AJIL 71 (1997) 296 f.
35
Waldock in the ILC, YBILC 1962 I 170, para. 32 ([t]hough there was a certain tautology
in the language, the emphasis on the international character of the treaty was necessary to
keep the denition on the proper plane).
36
See Vierdag, BYBIL 59 (1988) 81, who proposes, ibid. 83, that the meaning should
be sought in the content and context of each individual article in which it appears; also
McDade, ICLQ 35 (1986) 507 .
37
Aust, Modern Treaty Law 105.
38
Blix of the Swedish delegation in Vienna, OR 1968 CoW 11, para. 2, McDade, ICLQ
35 (1986) 508; Vierdag, BYBIL 59 (1988) 84: Waldock Report I, YBILC 1962 II 30,
paras. 9 f.
ZACHARIAS
use of terms 79

States which have concluded are bound by a treaty without taking any further
formal steps.39 A concluded treaty requires no further formalities.40
Subpara. 1(a) refers not to conclusion, but to an agreement which is con- 12
cluded. This means that from that point in time there is a denite engagement
that the parties are bound by the instrument under international law.41
Section I of Part II on the conclusion of treaties provides that a treaty is concluded
when a person duly authorised to represent a State for the purpose of expressing the
consent of the State to be bound by the treaty (Article 7, q.v.) expresses that consent
by signature; exchange of instruments constituting a treaty; ratication, acceptance,
approval or accession; or by any other means if so agreed, as provided for by Article
11. The various articles themselves as well as the structure of the Convention (Part II
concerns the Conclusion and Entry into Force) indicate that conclusion and entry
into force are two distinct stages, and in particular that signature and ratication come
within the sphere of conclusion (Articles 2, 3, 6, 46, and 48, q.v.) but not of entry into
force (N. 45, 48).42

In order to ascertain whether a contested agreement has been concluded, 13


regard must be had to the actual terms of the agreement and to the particular
circumstances in which it was drawn up.43
In the Maritime Delimitation and Territorial Questions (Qatar/Bahrain) Case, the For-
eign Ministers of the two countries had signed a text recording commitments, thereby,
according to the Court, concluding a binding international agreement. The Court
held in particular:
[a]ccordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple
record of a meeting similar to those drawn up with the Tripartite Committee; they do
not merely give an account of discussions and summarise points of agreement and dis-
agreement. They enumerate the commitments to which Parties have consented. They
thus create rights and obligations in international law for the Parties. They constitute
an international agreement creating rights and obligations for the Parties.44

39
Blix of the Swedish delegation in Vienna, OR 1968 CoW 11, para. 2 (relating to Article
1, not 2). Vierdag, BYBIL 59 (1988) 84 f, links Articles 2, subpara. 1(c), 7 and 11 to
demonstrate that an instrument is concluded or becomes a treaty in the sense of Article
2, subpara. 1(a), once the State has expressed its consent to be bound. See also Id., AJIL 76
(1982) 784. Article 2, subparas. ( f ) and (g) (q.v., N. 45, 48) provide a certain distinction
between concluded treaties which have entered into force and those which have not.
40
McDade, ICLQ 35 (1986) 508.
41
Detter, Essays 13.
42
See Maresca of the Italian delegation in Vienna, for whom concluded described the
process by which an agreement was formed, was perfected and entered into force, OR
1968 CoW 13, para. 25. Note that entry into force is beyond conclusion (Articles 18 and
24, q.v.).
43
Klabbers, AVR 33 (1995) 367.
44
ICJ Reports 1994 120, para. 25. See Fitzmaurice, BYBIL 73 (2002) 153; Rosenne,
Leiden JIL 8 (1995) 168 f.
ZACHARIAS
80 article

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

d) Form of Agreement
15 For the purposes of the Convention, the term treaty is conned to agree-
ments in written form. This is so in the interests of clarity and simplicity.45
The restriction is not intended to deny the legal force of unwritten agreements
under international law or to imply that the principles in the Convention
do not apply to unwritten agreements (Article 3, q.v.).46 An agreement in
written form encompasses a hand written, typed or printed document, telex,
fax, or e-mail which can be printed out. The instrument does not have to
be signed to be a treaty, provided the documents amount to an exchange of
communications.47
16 Typically, a treaty is a single instrument.48 In modern practice, however, inter-
national agreements are often concluded less formally and by means of two
or more instruments which are frequently exchanged. The phrase whether
embodied in a single instrument or in two or more related instruments
brings all these forms within the meaning of treaty.49
The Aegean Sea Continental Shelf (Greece v. Turkey) Case conrms that a plurality of
instruments, in that case a joint communiqu, may constitute a treaty, though the
instruments must be related.50
17 There is no systematic use of the wide range of titles given to international
agreements for particular types of instruments (N. 2), nor does subpara. 1(a)
distinguish between the various titles given to international agreements.51 In
itself, the title of an international instrument has no particular legal signi-
cance (e.g., accord, act, agreement, charter, covenant, convention, declaration,
exchange of notes, pact, protocol, statute). If the other conditions are met

45
Fitzmaurice, ibid. 149. See also McNair, Law of Treaties 7, for whom to include an oral
agreement within the scope of the word treaty would be highly inconvenient.
46
ILC Report 1966, YBILC 1966 II 189, para. 7.
47
Aust, Modern Treaty Law 19 f, 24.
48
The Convention employs the term instrument also in Articles 13, 16, 31, subpara. 2(b),
77 para. 2, and 79, subpara. 1(b) (q.v.).
49
ILC Report 1966, YBILC 1966 II 189, paras. 7 f; ILC Report 1965, YBILC 1965 II 160
(Article 1, para. [b]); Fitzmaurice, BYBIL 73 (2002) 153 , with reference to the Eastern
Greenland (Denmark/Norway) Case, PCIJ (1933) Series A/B no. 53.
50
ICJ Reports 1978 39, para. 96 ([the Court] knows of no rule of international law which
might preclude a joint communiqu from constituting an international agreement to
submit a dispute to arbitration or judicial settlement [cf. Arts. 2, 3 and 11 of the Vienna
Convention on the Law of Treaties]); Dicke, AJIL 69 (1975) 628; Rosenne, Leiden JIL
8 (1995) 169.
51
ILC Report 1966, YBILC 1966 II 188, para. 3.
ZACHARIAS
use of terms 81

(N. 419), all these instruments fall under subpara. 1(a),52 whatever their
particular designation.

e) Governed by International Law


To qualify as a treaty, the agreement must be governed by international law. 18
This requirement serves primarily to distinguish between agreements regulated
by public international law and agreements regulated by national law.53 The
element of subjection to international law is essential to an international
agreement.54 There is a certain tautology in Article 2, subpara. 1(a) between
this requirement and that of an international agreement (N. 6) which serves
to emphasise the international character of the treaty.55
Whilst not immediately apparent from the text,56 the requirement that an 19
agreement is governed by international law embraces the intention of the
parties to create international legal obligations rather than non-legally bind-
ing statements of policy (N. 7).57 However, the phrase does not restrict the
freedom of the parties to enter into a non-binding agreement or to submit
the agreement to another legal system.58

f ) Agreements Not Falling Under Subpara. 1(a)


Article 3 (q.v.) refers to international agreements not within the scope of the 20
present Convention. As such, it mentions international agreements concluded
between States and other subjects of international law or between such other

52
See Myers, AJIL 51 (1957) 574; Blix/Emerson, 270329 on the types of treaties and
instruments resembling treaties. In the South West Africa (Preliminary Objections) Cases,
ICJ Reports 1962 331, the Court expressed the view that there are many dierent types
of acts to which the character of treaty stipulations has been attached. In the Customs
Rgime Between Austria and Germany Advisory Opinion, PCIJ (1931), Series A/B no 41,
47, the Court stated that from the standpoint of the obligatory character of international
engagements, it is well known that such engagements may be taken in the form of treaties,
conventions, declarations, agreements, protocols or exchange of notes.
53
[I]nternational law means public international law, Bartos, YBILC 1962 I 172, para.
62; see also the ILC Report 1966, YBILC 1966 II 189, para. 6.
54
Waldock Report I, YBILC 1962 II 32, para. 2.
55
Statement by Waldock in the ILC, YBILC 1962 I 170, para. 32.
56
See Amado, YBILC 1962 I 170 f, para. 43 f; Mnch, ZaRV 29 (1969) 1 ; Widdows,
BYBIL 50 (1979) 136 at n. 5.
57
Waldock Report IV, YBILC 1965 II 12, para. 6; ILC Report 1966, YBILC 1966 II 189,
para. 6; statement in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1969
Plenary 346, para. 21 (covered the element of the intention to create obligations and
rights in international law); Mnch, ibid. 2 (the legal element necessary to any treaty
is now alluded to by the words governed by international law ); Fitzmaurice, BYBIL
73 (2002) 160 f; Dalton, AJIL 88 (1994) 515 f, according to whom the requirement
governed by international law excludes non-binding documents from the denition of
treaty.
58
Widdows, BYBIL 59 (1979) 136.
ZACHARIAS
82 article

subjects of international law, and international agreements not in written


form. The following examples may be mentioned (see also the list of other
subjects in international law in Article 3, N. 3):59
Agreements between States and international organisations or between international
organisations themselves; agreements between member states of a federation;60 oral
agreements; agreements between States and non-subjects of international law such as
concession contracts61 or codes of conduct between States and multinational enterprises;62
agreements which are not governed by international law such as private law contracts,63
intergovernmental loans of money or leases of land or buildings and inter-State inter-
departmental agreements;64 and declarations of policy such as the Helsinki Final Act65
which may be binding politically but do not create legal obligations.
Unilateral acts as well as declarations and decisions of international organisations are
not treaties unless the context shows the essential element of consensus, e.g., unilateral
declarations amounting to an exchange of notes (N. 16).66

3. Context

a) Relationship to Other Provisions


21 Article 2, subpara. 1(a) lays down the sphere of application of the whole
Convention (N. 4).
Only the rst paragraph of the Preamble (q.v., N. 8), recalling the role of treaties in the
history of international relations, appears to employ the term treaty in a broader sense
which predates the use of the term in Article 2, subpara. 1(a). Article 1 (q.v.) echoes the
limitation in Article 2, subpara. 1(a) of the application of the Convention to treaties
between States only. Similarly, the use of the term treaty in Article 2, subpara. 1(a) is
closely related to Article 6 (q.v.) and the capacity to conclude treaties.67 Article 3, para.
(a) (q.v., N. 45) stipulates that Articles 1 and 2, subpara. 1(a) do not derogate from
the legal force of international agreements that are not covered by the use of the term
treaty in Article 2, subpara. 1(a). As provided for by Article 5 (q.v.), treaties adopted

59
See also Rotter, Abgrenzung 413 .
60
Verdross/Simma N. 541.
61
See the Anglo-Iranian Oil Company (UK/Iran) (Preliminary Objection) Case ICJ Reports
1952 111 f; Fitzmaurice, BYBIL 73 (2002) 158 .
62
See, e.g., A. Wiebalck, The EEC Code of Conduct for Companies with Interests in South
Africa (1992).
63
Verdross/Simma N. 540.
64
McNair, Law of Treaties 5, 20 f.
65
Final Act of the Conference on Security and Co-operation in Europe, signed on 1 August
1975, reproduced in ILM 14 (1975) 1292.
66
See the Nuclear Tests (Australia/France) Cases, ICJ Reports 1974 267, para. 43 ([i]t is well
recognized that declarations made by way of unilateral acts, concerning legal or factual
situations, may have the eect of creating legal obligations); Myers, AJIL 51 (1957) 587,
598 f; Zemanek, Unilateral Legal Acts 209 . Unilateral acts can be binding according to
other rules of international law, Bernhardt, EPIL 4 (2000) 927.
67
Waldock in the ILC, YBILC 1965 I 8, para. 61.
ZACHARIAS
use of terms 83

within an international organisation are covered by Article 2, subpara. 1(a), albeit


without prejudice to any relevant rules of the organisation.

b) Matters Not Dealt With


Article 2, subpara. 1(a) merely describes the term treaty within the frame- 22
work of the Convention, but does not dene it for purposes of international
law or attempt to list the necessary conditions for the validity of treaties
(N. 45).68

c) Customary Basis of Subpara. 1(a)


While Article 2, subpara. 1(a) circumscribes the term treaty solely for the 23
purposes of the Convention (N. 4), it has obtained a broader relevance in
view of the general importance of the Convention for the international com-
munity and a fortiori as the term drew upon both customary and emerging
state practice.69 Today, the term treaty in Article 2, subpara. 1(a) can be
said to represent international customary law70 even though, as Klabbers
has pointed out, in the Qatar/Bahrain Case (cited in N. 13)
the denition of the Vienna Convention was treated as coming close to a denition
with the force of customary law, which is somewhat surprising given the fact that it is,
after all, but a denition, and, moreover, a denition for the purposes of the Vienna
Convention only.71

4. Appreciation of Subpara. 1(a)


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

68
See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR
1968 CoW 34, para. 26.
69
See generally Waldock Report I, YBILC 1962 II 31 ; G.E. do Nascimento e Silva, The
1986 Vienna Convention and the Treaty-Making Power of International Organizations,
GYBIL 29 (1986) 68, 74 f; Igweike, IJIL 28 (1988) 249; Sinclair, Vienna Convention
5 .
70
Aust, Modern Treaty Law 16.
71
AVR 33 (1995) 366. Fitzmaurice, BYBIL 73 (2002) 142, also sets out to test whether
the formal denition of a treaty in the [Convention] is adequate.
72
See Fitzmaurice, ibid. 141 (the concept of the treaty ... is one of the most intractable
problems in the law of treaties).
73
Hamzeh, BYBIL 43 (19689) 189 ([the provisions of the Convention] give ample scope
for States to contract international legal obligations, as an act of sovereignty, in the way
and manner they deem most t and suitable under the circumstances).
ZACHARIAS
84 article

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

C. RATIFICATION, ACCEPTANCE, APPROVAL AND ACCESSION


(SUBPARA. 1[B])

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

74
See Fitzmaurice, BYBIL 73 (2002) 164 (the denition of a treaty, as enshrined in the
[Convention] does not reect all the varied forms under which a treaty may appear).
75
H.W.A. Thirlway, The Law and Procedure of the International Court of Justice, BYBIL
62 (1991) 4 f.
76
Article 1, paras. (i)(k), YBILC 1962 II 31. For instance, accession was dened, ibid. as
the international act whereby a State which is not a signatory to a treaty, under a power
conferred upon it by the terms of the treaty or of another instrument, expresses its will to
accede or adhere to the treaty and thereby denitively gives its consent to be bound by
the treaty, ibid.
77
Article 1, subpara. 1(e), ibid. 214 f, paras. 2728 and 33 (though the order of the terms
diered: ratication, accession, acceptance and approval).
78
Article 1, subpara. 1(d), ibid. 161 (a signature meaning an act whereby a State authenti-
cates the text of a treaty without establishing its consent to be bound).
79
See Waldock in the ILC, YBILC 1965 I 308, paras. 1718 (Article 1, subpara. 1[d]).
Article 1, subpara. 1(d) of the ILC Draft 1965 is at YBILC 1965 II 159 f. See the obser-
vations to the ILC by the Governments of Austria, Luxembourg and Panama, Waldock
Report IV, YBILC 1965 II 14 f.
80
The ILC Draft 1966 is reproduced at YBILC 1966 II 189. At the Conference, the US
unsuccessfully proposed to substitute the international act with an international act
(italics added) and to delete the words acceptance and approval; OR Documents 112,
subpara. 1(iii). See also the statement in Vienna by the Expert Consultant, Sir Humphrey
Waldock, OR 1968 CoW 34, para. 27.
ZACHARIAS
use of terms 85

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

2. Interpretation of Subpara. 1(b)


Subpara. 1(b) states that ratication, acceptance, approval and 26
accession means in each case the international act so named whereby
a State establishes on the international plane its consent to be bound by
a treaty. In fact, this is not so much a denition as a description of certain
legal eects.82 The various means are all mentioned on a par. The main pur-
pose of this provision is to emphasise that the acts mentioned are eective on
the international plane onlythe word international is indeed employed
twiceand do not concern any corresponding internal (and in particular
constitutional) procedures.83 Subpara. 1(b) thus complements the proviso
in para. 2 (N. 56).

3. Relationship to Other Provisions


The meaning and functions of ratication, acceptance approval and 27
accession are further explained in Articles 14 and 15 (q.v.).

81
Statement by Waldock in the ILC, YBILC 1962 I 215, para. 45. He continued, ibid.:
[s]ub-paragraph [b] [is] meant to refer to the communication of the instrument of rati-
cation by means of its deposit or its exchange for the corresponding instrument; it [is]
that deposit or exchange which constituted the international act of ratication.
82
Ago, YBILC 1965 I 14, para. 49; Aust, Modern Treaty Law 108.
83
See the statements in the ILC by Waldock, YBILC 1962 I 210, para. 33; and Gros, ibid.
215, para. 44. See the ILC Draft 1966, YBILC 1966 II 189 ([t]he constitutions of many
States contain specic requirements of internal law regarding the submission of treaties to
the ratication or the approval of the particular organ . . . of the State. These procedures of
ratication and approval have their eects in internal law as requirements to be fullled
before the competent organs of the State may proceed to the international act which will
establish the States consent to be bound. The international act establishing that consent . . . is
the exchange, deposit or notication internationally of the instrument specied in the
treaty as the means by which States may become parties to it. . . . Since it is clear that there
is some tendency for the international and internal procedures to be confused and since it
is only the international procedures which are relevant in the international law of treaties,
the Commission thought it desirable in the denition to lay heavy emphasis on the fact
that it is purely the international act to which the terms ratication, acceptance, approval
and accession relate in the present articles). Also Aust, ibid. 103 ([t]he most common
misconception about ratication is that it is a constitutional process. It is not).
ZACHARIAS
86 article

D. FULL POWERS (SUBPARA. 1[C])

1. History
28 Waldock Report I of 1962 introduced a denition on full powers contain-
ing the core of todays subpara. 1(c).84 The draft was modied several times
in 1962 and 1965.85 Despite a proposal for amendment, the nal ILC Draft
1966 remained virtually unchanged in Vienna.86

2. Interpretation of Subpara. 1(c)


29 Subpara. 1(c) deals with full powers. This term means a document ema-
nating from the competent authority of a State designating a person or
persons to represent the State for negotiating, adopting or authenticating
the text of a treaty, for expressing the consent of the State to be bound by
a treaty, or for accomplishing any other act with respect to a treaty. The
various functions are mentioned alternatively (or), thus indicating that
full powers may include the whole process of concluding a treaty, or only
particular stages, such as negotiation or signature.87 The persons concerned
will be designated with these functions, though Article 7, para. 2 (q.v., N.
1219) mentions in addition various persons who are automatically regarded
as representing their State in respect of particular functions. By employing
the term document, rather than, for instance, instrument, the denition
covers also simplied forms of full powers.88

84
Article 1, para. (e), YBILC 1962 II 31, stated [f]ull powers means a formal instrument
issued by the competent authority of a State authorizing a given person to represent the
State either for the purpose of negotiating or signing a treaty or of executing an instrument
relating to a treaty (original italics).
85
Modied in 1962 at YBILC 1962 I 214, para. 27, and 239, para. 1. Article 1, subpara.
1(e) of the ILC Draft 1962 is at YBILC 1962 II 161. Modied in 1965 at YBILC 1965
I 10, para. 1, and 308, para. 17. The ILC Draft 1965 is reproduced at YBILC 1965 II
160.
86
The ILC Draft 1966 is at YBILC 1966 II 189, para. 10. At the Conference the word per-
son was changed to person or persons. In Vienna, the Austrian and Spanish delegations
unsuccessfully proposed to replace the words a document by the words an instrument,
OR Documents 112, subpara. 1(v). The proposal found support from the delegations
of Syria, OR 1968 CoW 24 f, para. 3; Lebanon, ibid. 27, para. 43; though not from the
delegations of New Zealand, ibid. 28, para. 64 (which delegation assumed that the [ILC]
had used the word document deliberately . . . to cover the widely-used practice of having
full powers conveyed by telegraph), and Israel, ibid. 32, para. 13, nor indeed from the
Expert Consultant, Sir Humphrey Waldock, ibid. 34, para. 28.
87
See Waldock in the ILC, YBILC 1962 I 216, para. 60; Aust, Modern Treaty Law 76 f.
88
See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock,
OR 1969 CoW 34, para. 28 ([s]ince full powers could take the form of a telegram or
ZACHARIAS
use of terms 87

The functions mentioned in subpara. 1(c) coincide to some extent with those 30
mentioned in Article 7, subpara. 1(a) (q.v., N. 89), i.e., relating as a rule
to the conclusion of a treaty as in Articles 12. subpara. 1(c) (q.v., N. 11) and
14, subpara. 1(d) (q.v., N. 1113).89 However, subpara. 1(c) goes further
in various respects. On the one hand, it mentions the negotiation of the
text of the treaty, on the other the accomplishment of any other act with
respect to a treaty, e.g., Article 67, para. 2 (q.v., N. 5) in respect of acts of
the termination, etc. of a treaty.90

3. Relationship to Other Provisions


As pointed out above (N. 2931), subpara. 1(c) has direct implications for 31
Articles 7, 12, 14 and 67. Furthermore, Article 77, subpara. 1(a) (q.v., N. 5)
mentions as one of the functions of depositaries keeping custody . . . of any
full powers delivered to the depositary.

E. RESERVATION (SUBPARA. 1[D])

1. History
Article 1, para (l) of Waldock Report I provided the basis for todays sub- 32
para. 1(d).91 It included a reference to unilateral interpretative declarations
(N. 37) which in 1962 the ILC decided to drop.92 The denition itself was
accepted and included in the ILC Draft 1962 which attracted comments by
two States.93 The ILC Draft 1966 underwent a textual change in Vienna in

letter, the [ILC] had considered it advisable to take into account a simplied form of full
powers. . . . [I]t could be acceptably used in a very general sense).
89
ILC Report 1966, YBILC 1966 II 189, para. 10.
90
Ibid.
91
YBILC 1962 II 31 f. See the denition of a reservation in Article 13 of the Harvard Draft,
AJIL 29 (1935) Supplement 843 (a formal declaration by which a State, when signing,
ratifying or acceding to a treaty, species as a condition of its willingness to become a
party to the treaty certain terms which will limit the eect of the treaty insofar as it may
apply in the relations of that State with the other State or States which may be parties to
the treaty).
92
Ibid. 34, para. 14; YBILC 1962 I 214, para. 27. In the debate, members who in respect of
Article 1923 did not favour the principle of unanimity (see Article 19, N. 4), expressed
their views accordingly when discussing the denition of a reservation; see, inter alia,
Yasseen, ibid. 47, paras. 20 f.
93
Raising mainly textual issues; see the observations by Israel and Japan, Waldock Report
IV, YBILC 1965 II 15. See Article 1, subpara. 1(f ) of the ILC Draft 1962, YBILC 1962
II 161; also YBILC 1962 I 238, paras. 7071.
ZACHARIAS
88 article

that the term vary was changed to modify.94 Other proposals for amend-
ment were unsuccessful.95

2. Interpretation of Subpara. 1(d)


33 According to subpara. 1(d), a reservation means a unilateral statement,
however phrased or named, made by a State, when signing, ratifying,
accepting, approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal eect of certain provisions of the treaty
in their application to that State. The denition thus lists three main ele-
ments of a reservation: (i) it must be a unilateral statement (N. 34), (ii) its
name plays no role (N. 35); and (iii) it purports to exclude or to modify the
legal eect of certain provisions of the treaty (N. 36).96 However, the main
purpose of the denition in subpara 1(d) is to distinguish reservations from
unilateral interpretative statements (N. 37).97
34 A reservation constitutes a unilateral statement. As such, it is not part of
the treaty, as for instance a treaty clause, or an annex to the treaty would be.
Rather the statement is made by a State outside the treaty.98 Whether the
reservation eventually comes about, will depend on the acceptance by other
States (Article 21, q.v.). The statement at issue will be made by the State when
signing, ratifying, accepting, approving or acceding to a treaty. These are
the means whereby a State may express consent to be bound by a treaty as
in Articles 1115 (q.v.); they are also mentioned in the opening sentence of
Article 19 (q.v., N. 9).
35 Subpara. 1(d) oers a denition of substance rather than of form: the state-
ment can amount to a reservation however phrased or named. If the condi-

94
Article 1, subpara. (d) of the ILC Draft 1966 is at YBILC 1966 II 187.
95
The Hungarian delegation aimed to extend the denition to include interpretative declara-
tions, OR 1968 CoW 23, paras. 24 f; see the reply by the Australian delegation, ibid. 29,
para. 81 (the Commissions view had been sound and [interpretative statements] should
be treated as reservations only if they excluded, limited or otherwise varied the legal eects
of certain provisions in a treaty); also Blix of the Swedish delegation, ibid. 30, para. 102
(an interpretative statement which did not purport to vary obligations under a treaty
was not a reservation). The Argentinean delegation unsuccessfully suggested limiting the
denition to reservations to multilateral treaties, ibid. 29, para. 69 (see Article 19, N. 6).
96
Hilpold, AVR 43 (1996) 380 ; also Tomuschat, ZaRV 27 (1967) 464.
97
ILC Report 1966, YBILC 1966 II 189 f, para. 11.
98
See Sinclair , Vienna Convention 51 (the Convention denition would exclude special
stipulations contained in a treaty and agreed upon by the negotiating States which qualify,
limit or vary the legal eect of other provisions of the treaty either as between all the parties
or as between a particular party and all or some of the remaining parties).
ZACHARIAS
use of terms 89

tions are met, even a declaration may qualify as a reservation;99 conversely,


a statement entitled reservation may fail to full the conditions.
A reservation must purport to exclude or to modify the legal eect of 36
certain provisions of the treaty in their application to that State.100 This
exclusion or modication depends on acceptance by the other treaty parties
and thus conrms the consensual nature of reservations.101 An enlargement
of the legal eects of treaty provisions is not covered by this denition; in
fact, a State would thereby be unilaterally extending its obligations without
receiving anything in exchange.102
Subpara. 1(d) thus claries the interpretation of Article 21, para. 1(a) which in its text
only refers to the modication of the the provisions of the treaty (and not of their
eects, q.v., N. 4).103

The main purpose of subpara. 1(d) is to distinguish reservations from unilat- 37


eral interpretative declarations. The latter occur frequently in practice, and
the distinction is not always simple. The distinguishing element is not the
statements name (N. 35), but whether the declaration does, or does not,
modify or exclude the application of the terms of the treaty.104 The distinc-
tion is further complicated by the fact that other States may accept even
tacitly an interpretative declaration qua reservation (see Article 20, para. 5,

99
Edwards, Michigan JIL 10 (1989) 367; Hilpold, AVR 43 (1996) 381.
100
See Article 18, para. 1 of Waldock Report I, YBILC 1962 II 61 ([a] reservation, since
it purports to modify the terms of the treaty as adopted . . .).
101
See Villiger, Customary International Law 260 f.
102
Sinclair, Vienna Convention 54.
103
See the Continental Shelf (UK/France) Arbitration (First Award), ILR 54 (1979) 52 50,
para. 55 ([t]his denition does not limit reservations to statements purporting to exclude
or modify the actual terms of the treaty; it also covers statements purporting to exclude or
modify the legal eect of certain provisions in their application to the reserving State).
104
ILC Report 1966, YBILC 1966 II 189 f, para. 11. See Article 1, para. l of Waldock
Report I, YBILC 1962 II 31 f ([a]n explanatory statement or statement of intention
or of understanding as to the meaning of a treaty, which does not amount to a variation
in the legal eect of the treaty, does not constitute a reservation); Waldock Report IV,
YBILC 1965 II 49, para. 2 (statements of interpretation . . . are not reservations and appear
to concern the interpretation rather than the conclusion of treaties); the statement by
Waldock as Expert Consultant in Vienna, OR 1968 CoW 34, para. 29 ([s]ome such
declarations were of a general nature and represented an objective interpretation of what
was understood to be the meaning of a treaty. The purpose of others was to clarify the
meaning of doubtful clauses or of clauses which were controversial for particular States.
Others, again, dealt with the application of a treaty in certain circumstances peculiar to
a State); the ILC Guideline 1.2 on the Denition of Interpretative Declarations, YBILC
2007 II/2 48 ( [i]nterpretative declaration means a unilateral statement, however phrased
or named, made by a State . . . whereby that State . . . purports to specify or clarify the mean-
ing or scope attributed by the declarant to a treaty or to certain of its provisions). See
also Tomuschat, ZaRV 27 (1967) 465 f; Bowett, BYBIL 48 (197677) 68; McRae,
BYBIL 49 (1978) 155 ; Sinclair, Vienna Convention 53.
ZACHARIAS
90 article

N. 17). Whether the declaration amounts to one or the other, in particular


whether there is a consensual element (N. 36), will depend on the rules of
interpretation in Article 31.105 Simple interpretative declarations may play a
role under Article 32 (q.v., N. 5).

3. Relationship to Other Provisions


38 Article 2, subpara. 1(d) is of relevance to Articles 1923 on reservations
(q.v.).

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

1. History
39 It is dicult to track down the travaux prparatoires of the term negotiating
State. There is no mention thereof in the records of the ILC debates from
19621964.106 It appears that the denition was introduced during the ILCs
debate in 1966.107 The denition is mentioned in the ILC Draft 1966 and
remained unchanged at the Vienna Conference, despite two proposals to
amend the text.108

2. Interpretation of Subpara. 1(e)


40 According to subpara. 1(e), a negotiating State means a State which took
part in the drawing up and adoption of the text of the treaty.109 This has
to be read in the light of Article 9, para. 1 (q.v., N. 39) which envisages the

105
Aust, Modern Treaty Law 127.
106
See, e.g., Waldock Report I, YBILC 1962 II 31 f; Waldock in the ILC, YBILC 1965 I
308, para. 17.
107
YBILC 1966 I/2 324, para. 69, though it is not certain when this occurred.
108
YBILC 1966 II 187 f. At the Conference the French delegation proposed to delete the
words drawing up and; the Indian delegation proposed deleting subpara. 1(e) on the
ground that between the time when a State was regarded as a negotiating State and
the time when it became a contracting State there was an interval which had not been
allowed for, either in the denitions, or in the body of the . . . Convention; neither pro-
posal was taken up by the Drafting Committee. However, the Indian proposal led to a
change in Article 24 (q.v., N. 2): in its subpara. 1(a) contracting States was changed to
negotiating States. See also the observation by the delegations of Switzerland, ibid. 28,
para. 57, and Hungary, ibid. 29, para. 82 ([t]he distinctions made were useful).
109
See the Observer for the IBRD in Vienna, OR 1968 CoW, 33, para. 24 ([i]n using
the term negotiating States it was assumed that the text of a treaty would invariably be
formulated by States, whether in direct negotiations, or at an international conference,
or in a plenary organ of an international organization), with reference to the practice
within the IBRD.
ZACHARIAS
use of terms 91

adoption of the text of a treaty by all the States participating in its drawing
up. In this denition the word and must be emphasised: there [are] no
negotiating States until the text [has] been adopted.110 Of course, the term
negotiating States within this meaning includes also States which have voted
against adoption of a treaty at a conference.
Subpara. 1(e) thus constitutes the beginning of the three successive stages 41
mentioned in para. 1 of Article 2, i.e., (i) the negotiations and adoption of
the treaty in subpara. 1(e); (ii) the consent to be bound by the treaty within
the meaning of subpara. 1(f ) (N. 45); and (iii) its entry into force as in sub-
para. 1(g) (N. 48).111
The ILC Report 1966 explained that when a provision spoke of negotiating States they
require to be distinguished from both contracting States and parties . . . notably when
an article speaks of the intention underlying the treaty.112 This holds true for Articles
12, 14, 15, 20, 24, 25 and 78, but most likely not for Articles 47, 49 and 50 (q.v.).113

The Convention envisages a further stage of States entitled to become parties 42


to the treaty. This category goes beyond the notion of negotiating States.
It covers States aiming to consent to be bound by the treaty.114

3. Relationship to Other Provisions


The relationship to other provisions in the Convention has been explained 43
above (N. 4041).

G. CONTRACTING STATE (SUBPARA. 1[F ])

1. History
The Waldock Report I of 1962 referred to a presumptive party as meaning 44
a State which [h]ad qualied itself to be a party to a treaty which [h]ad not
yet entered into force.115 However, the ILC almost immediately dropped this
denition together with the term party (N. 47).116 In 1965 the ILC again

110
Waldock in the ILC, YBILC 1966 I/2 294, para. 86.
111
In this respect, the Expert Consultant in Vienna, Sir Humphrey Waldock, pointed
out that [the ILC] had . . . introduced sub-paragraphs (e), (f ) and (g) merely in order to
provide convenient labels for referring to the various relationships which a State might
have to the text of a treaty, OR 1968 CoW 34 f, para. 32.
112
YBILC 1966 II 190, para. 12.
113
But see Gautier, Article 2, N. 45.
114
YBILC 1966 II 190, para. 12. The provisions concerned are Articles 23, 40, 77 and 79
(q.v.).
115
Article 1, para. 1 (c) in YBILC 1962 II 31.
116
YBILC 1962 I 214, para. 28.
ZACHARIAS
92 article

decided to include a denition while leaving open the precise meaning until
it was considered whether party implied a right of States to be consulted or
notied in respect of the treaty (which is not the case today).117 In 1966, and
without further discussion, the denition proposed by the Drafting Commit-
tee was adopted by the ILC.118 It remained unchanged in Vienna.
A proposal at the Conference by the Indian delegation to delete subpara. (f ) on the
grounds, inter alia, that subparas. (f ) and (g) overlapped, was referred to the Drafting
Committee which did not, however, propose any changes.119

2. Interpretation of Subpara. 1(f )


45 Subpara. 1(f ) denes a contracting State as meaning a State which has
consented to be bound by the treaty, whether or not the treaty has entered
into force. Two elements transpire in this denition: (i) the State has consented
to be bound by the treaty. Here, the denition refers back to the means by
which a State establishes its consent to be bound in subpara. 1(b) (N. 26) and
in Articles 1116 (q.v.); and (ii) it is irrelevant whether or not the treaty has
entered into force according to Article 24.120 This is the moment from when
on States are obliged to apply the treaty (q.v., N. 4). If the treaty has entered
into force, the denition in subpara. 1(f ) coincides with that of the party
in subpara. 1(g ) (N. 48) which assumes a treaty which is in force.
The emphasis in subpara. 1(f ) is, therefore, on the States consent to be bound by the
treaty, whereas for subpara. 1(g) it is the fact that the treaty has entered into force and
is applicable between the parties (N. 48).

3. Relationship to Other Provisions


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

117
Article 1, para. (f )(ter) in YBILC 1965 II 160.
118
Adopted at YBILC 1966 I 324, para. 69. Article 2, subpara. 1(f ) of the ILC Draft 1966
is at YBILC 1966 II 187 f.
119
OR Documents 112, para. 35, subpara. 1(viii)(b); statement by the Indian delegation,
OR 1968 CoW 22, paras. 910.
120
ILC Report 1966, YBILC 1966 II 190, para. 12.
121
In ten provisions, i.e., Articles 16, 17, 20, 22, 23, 39, 54, 57, 77, and 79 (q.v.); Gautier,
Article , N. 46 at n. 119.
ZACHARIAS
use of terms 93

H. PARTY (SUBPARA. 1[G])

1. History
Waldock Report I of 1962 introduced a rst denition of the term party, 47
containing elements of Articles 1 and 6 (q.v.).122 However, shortly thereafter
Waldock proposed to delete the denition.123 It was re-introduced in the ILC
Draft 1965.124 The ILC Draft 1966 remained unchanged in Vienna.125

2. Interpretation of Subpara. 1(g)


According to subpara. 1(g), a party means a State which has consented to 48
be bound by the treaty and for which the treaty is in force. As the Indian
delegation in Vienna correctly pointed out, there is an overlapping here with
the denition of a contracting State in subpara. 1(f ) (N. 44). For a party,
the treaty is in force, which is not the case for a contracting State.
The ILC Report 1966 emphasised that the term party is employed in the Convention
also in respect of treaties which cease to be in force, in particular in Section 5 of Part
V of the Convention.126

3. Relationship to Other Provisions


The term party is referred to in many articles of the Convention (q.v.).127 49
In Article 66, paras. (a) and (b) (q.v., N. 3) the term has the special meaning
of parties to a dispute.128

122
YBILC 1962 II 31. Article 1, para. (c) provided as follows: [p]arty means a State or
other subject of international law, possessing international personality and having capacity
to enter into treaties under the rules set out in Article 3 below, which has executed acts
by which it has denitively given its consent to be bound by a treaty in force.
123
YBILC 1962 I 214, para. 28.
124
Article 1, subpara. f(bis), YBILC 1965 II 160: [p]arty means a State which has consented
to be bound by a treaty and for which the treaty has come into force. The denite text
was adopted in 1966, YBILC 1966 I 324, para. 69.
125
The ILC Draft 1966 is at YBILC 1966 II 187.
126
Ibid. 190, para. 12. Section 5 contains Article 69 (Consequences of the Invalidity of a
Treaty); Article 70 (Consequences of the Termination of a Treaty); Article 71 (Conse-
quences of the Invalidity of a Treaty Which Conicts with a Peremptory Norm of General
International Law); and Article 72 (Consequences of the Suspension of the Operation of
a Treaty).
127
In altogether 35 provisions, i.e., Articles 21, 23, 2531, 33, 3537, 3941, 43, 44, 5463,
6567, and 6972 (q.v.), Gautier, Article 2, N. 48, n. 121.
128
Gautier, ibid.
ZACHARIAS
94 article

I. THIRD STATE (SUBPARA. 1[H])

1. History
50 Waldocks rst report in 1962 did not dene third States.129 A denition
was introduced in the ILC in 1966 in the version as it stands today, and
immediately approved.130 No amendments were submitted in Vienna at the
Conference and there was no debate on the matter.

2. Interpretation of Subpara. 1(h)


51 Subpara. 1(h) denes a third State as a State not a party to the treaty,
whether bi- or multilateral.131 As such, the denition must be read together
with, or actually in contradistinction to, subpara. 1(g) which denes a party
as a State which has consented to be bound by the treaty and for which the
treaty is in force (N. 48).132 Thus, it is irrelevant here whether or not a State
participated in the treaty negotiations or was entitled to become a party.133
Hence, third States include, inter alia, negotiating States and contracting
States as in subparas. 1(e) and ( f ) (N. 3946).134 Individuals and entities
other than States (e.g., international organisations) are not addressed by
subpara. 1(h).135
Despite this apparent dichotomy between parties and third States in Article 2,
Articles 3437 indeed envisage contractual relationships between the two categories of
States in the form of so-called collateral agreements.136

129
YBILC 1962 II 31 f.
130
Proposed by Briggs, YBILC 1966 I/2 170, para. 14; approved ibid. para. 19; adopted
ibid. 324, para. 69. The ILC Draft 1966 is at YBILC 1966 II 188 .
131
The term third State presupposes two or more treaty parties; but see Neuhold, Beri-
chte DGVR 28 (1988) 54, who links the term third States to bilateral treaties (der
Ausdruck Drittstaat [perpetuiert] die traditionalle Ausrichtung auf bilaterale Vertrge in
der WVK). On the whole, the term non-party might have been preferable; see ibid.
132
See de Luna, YBILC 1966 I/2 170, para. 167 (the denition of third State entailed a
reference to another notion, that of party ).
133
Fitzmaurice Report V, YBILC 1960 II 75, paras. 1 ; Ballreich, EPIL 2 (2000) 945;
also Vierdag, AJIL 76 (1982) 792.
134
Gautier, Article 2, N. 49, refers here to categories intermediaries. See also Aust, Modern
Treaty Law 256 f.
135
See Waldock in the ILC, YBILC 1966 I/2 59, para. 48; Briggs, ibid. 257, para. 16;
Neuhold, Berichte DGVR 28 (1988) 65 , 74 .
136
See Article 34, N. 6; Article 35, N. 2; Article 36, N. 5; and Article 37, N. 2.
ZACHARIAS
use of terms 95

3. Relationship to Other Provisions


The term third State is dened here mainly for convenience, i.e., to clarify 52
the use of the terms in Articles 3438 (q.v.).137

J. INTERNATIONAL ORGANISATION (SUBPARA. 1[I])

1. History
The ILC introduced Article 2, subpara. 1(i) in 1965 following a discussion 53
on the position of other subjects of international law (Article 3, N. 1).138 In
Vienna, the one amendment proposed by China was referred to the Drafting
Committee.139 Otherwise, the denition attracted no attention.140

2. Interpretation of Subpara. 1(i)


According to subpara. 1(i), international organisation means an inter- 54
governmental organisation, i.e., an association between States. The main
purpose of the denition is to exclude non-governmental organisations from
the application of the Convention, since the Convention applies solely to
treaties between States (Article 1, q.v.).141
Bindschedler has dened an international organisation as an association of States
established by and based upon a treaty, which pursues common aims and which has
its own special organs to full particular functions within the organization.142 Aust
concisely circumscribes an international organisation as an international legal entity

137
ILC Report 1966, YBILC 1966 II 190, para. 13 ([t]his term is in common use to denote
a State which is not a party to the treaty and the Commission, for drafting reasons, con-
sidered it convenient to use the term in that sense in Section 4 of Part III); Briggs in the
ILC, YBILC 1966 I/2 170, para. 15 (the examination of other provisions dealing with
the rights and obligations of non-parties had revealed that [a denition] was needed);
Gautier, Article 2, N. 49.
138
YBILC 1965 I 7 , 307 f. See Article 2, subpara. 1(a) of the ILC Report 1966, YBILC
1966 II 187 .
139
To amend subpara. 1(i) to read: [i]nternational organisations include intergovern-
mental organisations but not non-governmental organisations; OR Documents 113,
subpara.(x).
140
Article 2 was adopted as a whole by 94 votes to none with 3 abstentions, OR Plenary
1969, 157, para. 48. For the debate on Article 2, see OR 1968 CoW 21 ; OR 1969
CoW 3 f.
141
ILC Report 1966, YBILC 1966 II 190, para. 14; Waldock in the ILC, YBILC 1965 I
308, para. 22.
142
R. Bindschedler, International Organizations. General Aspects, EPIL 2 (1995) 1289.
ZACHARIAS
96 article

created by a multilateral treaty, with international personality, and principally with


states as members.143

3. Relationship to Other Provisions


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

K. PROVISO IN PARA. 2

56 Para. 2 serves as a proviso or disclaimer.145 It provides that the provisions


of paragraph 1 regarding the use of terms in the present Convention are
without prejudice to the use of those terms or to the meanings which
may be given to them in the internal law of any State. Para. 2 deals with
the eects (which it intends to limit) of the Convention on internal law.146
Diculties may arise, inter alia, if in certain States the Convention acquires
the force of internal law under the provisions of their constitutions.147 Here,
para. 2 safeguards the position of States; it ensures that the denitions given
in para. 1 do not aect the existing domestic rules or usages governing inter-
national treaties and their procedures under national law.148 On the whole,
it can be said that paras. 1 and 2 of Article 2 deal with two sides of the same
coin and complement each other.149
It transpires from the travaux prparatoires that the main purpose of para. 2 is to preserve
the position of States in respect of their internal law and usages especially in connex-
ion with the ratication of treaties.150 That the terms employed in para. 1 operate on
the international level, is emphasised in subpara. 1(a) on the use of the term treaty
(N. 69, 1819).

143
Modern Treaty Law 392.
144
Altogether ve provisions, i.e., Article 5, Article 7, subpara. 2(c), Article 20, para. 3, Article
76, para. 1, and Article 77, para. 2 (q.v.).
145
See the observation by the US Government to the ILC, Waldock Report IV, YBILC
1965 II 15.
146
Statement by Reuter in the ILC, YBILC 1965 I 19, para. 34.
147
Waldock Report IV, YBILC 1965 II 16, para. 2.
148
ILC Report 1962, YBILC 1966 II 190, para. 15.
149
But see the criticism in the ILC by Rosenne, YBILC 1965 I 13, para. 40 (the provi-
sions of [para. 2] had no place in a denitions article, since they dealt with a completely
dierent subject).
150
Thus, Article 1, para. 2 of the ILC Draft 1962, YBILC 1962 II 161, was limited to the
characterisation and classication of international agreements under the internal law of
any State, and its Commentary, ibid. 163, para. 15, provided the concomitant explana-
tion. The nal ILC Draft 1962 extended the scope of para. 2 (as in todays Article 2, para.
2) to all the terms employed in para. 1, YBILC 1966 II 188, though its Commentary
reiterated virtually verbatim, ibid. 190, para. 15, the more limited text of 1962.
ZACHARIAS
use of terms 97

L. APPRECIATION OF ARTICLE 2

Para. 1 provides for a rather mixed group of terms. Clearly, the notion of 57
treaty (N. 224) occupies pride of place, not least because, together with
Articles 1 and 6 (q.v.), the term denes the scope of application of the entire
Convention.151 Other terms, such as third States, concern only a few articles
of the Convention (N. 5052).
As with all denitions, it is dicult to cover every relevant aspect; for further 58
guidance, one has to look at the substantive articles (e.g., Articles 1923 in
respect of reservations). The more general the denition, the less it will cover
exceptions; the more it covers exceptions, the less it reects the general thrust.
On the whole, Article 2, together with the Preamble (q.v.), plays a central
role by providing a uniform approach to the interpretation and application
of the Convention.
The notion of a treaty in subpara. 1(a) appears well explained, if only for purposes
of the present Convention. Conversely, the denitions of ratication, acceptance,
approval and accession in subpara. 1(b) (N. 527) appear somewhat sparse. The
denition of reservation in subpara. 1(d) (N. 3238), although aimed at distinguish-
ing the notion of reservations from unilateral declarations, in fact blurs the distinction
(since unilateral declarations may be accepted tacitly qua reservations, N. 37). The terms
contracting State and Party in subparas. 1(f ) and (g) partly overlap (N. 4449).

151
See Tunkin in the ILC, YBILC 1965 I 11, para. 14.
ZACHARIAS
Article 3
International agreements not within the
scope of the present Convention

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

(a) the legal force of such agreements;


(b) the application to them of any of the rules set forth in the present
Convention to which they would be subject under international law
independently of the Convention;
(c) the application of the Convention to the relations of States as between
themselves under international agreements to which other subjects
of international law are also parties.

Article 3 Accords internationaux nentrant pas dans le cadre


de la prsente Convention

Le fait que la prsente Convention ne sapplique ni aux accords internationaux


conclus entre des Etats et dautres sujets du droit international ou entre ces autres
sujets du droit international, ni aux accords internationaux qui nont pas t conclus
par crit, ne porte pas atteinte:

a) la valeur juridique de tels accords;


b) lapplication ces accords de toutes rgles nonces dans la prsente Convention
auxquelles ils seraient soumis en vertu du droit international indpendamment
de ladite Convention;
c) lapplication de la Convention aux relations entre Etats rgies par des
accords internationaux auxquels sont galement parties dautres sujets du droit
international.

international agreements not within the scope 99

Artikel 3 Nicht in den Geltungsbereich dieses bereinkommens


fallende internationale bereinknfte

Der Umstand, dass dieses bereinkommen weder auf die zwischen Staaten und
anderen Vlkerrechtssubjekten oder zwischen solchen anderen Vlkerrechtssubjekten
geschlossenen internationalen bereinknfte noch auf nicht schriftliche internatio-
nale bereinknfte Anwendung ndet, berhrt nicht

a) die rechtliche Gltigkeit solcher bereinknfte;


b) die Anwendung einer der in diesem bereinkommen niedergelegten Regeln
auf sie, denen sie auch unabhngig von diesem bereinkommen auf Grund des
Vlkerrechts unterworfen wren;
c) die Anwendung des bereinkommens auf die Beziehungen zwischen Staaten auf
Grund internationaler bereinknfte, denen auch andere Vlkerrechtssubjekte
als Vertragsparteien angehren.

ILC Draft 1966

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

The fact that the present articles do not relate:

(a) to international agreements concluded between States and other subjects of


international law or between such other subjects of international law; or
(b) to international agreements not in written form,

shall not aect the legal force of such agreements or the application to them of any
of the rules set forth in the present articles to which they would be subject indepen-
dently of these articles.

Materials:

WALDOCK Report I: Article 2, para. 2.


Minutes: YBILC 1962 I 47 , 54 , 192 f, 240, 266.
ILC Draft 1962: Article 2, para. 2.
WALDOCK Report IV: Article 2, para. 2.
Minutes: YBILC 1965 I 10 , 244 f, 280.
ILC Draft 1965: Article 2.
Minutes: YBILC 1966 I/2 325, 339.
ILC Draft 1966: Article 3.
Minutes: OR 1968 CoW 35 , 146 f; OR 1969 Plenary 7.
100 article

Vienna Conference Vote: 102:0:0

Selected Literature:

C.M. Brlmann, The Institutional Veil in Public International Law: International Orga-
nizations and the Law of Treaties (2005); Y. le Bouthillier/J.-F. Bonin, Article 3, in:
Corten/Klein (eds.) 97 ; R. Sonnenfeld, International Organizations as Parties to
Treaties, Polish YBIL 11 (19811982) 177 ; E.W. Vierdag, Some Problems Regarding the
Scope of International Instruments on the Law of Treaties, AVR 23 (1985) 429 .
international agreements not within the scope 101

CONTENTS
Paras.

A. History ................................................................................................ 1
B. Interpretation of Article 3 ............................................................... 2
1. Scope ............................................................................................... 2
2. International Agreements Not Falling Under the Convention
(Opening Sentence) .......................................................................... 3
3. Consequences of Non-Applicability (Paras. [a] and [b]) ................... 4
4. Partial Applicability of the Convention (Para. [c]) ............................. 7
C. Context ............................................................................................... 9
1. Relationship to Other Provisions ...................................................... 9
2. Matters Not Dealt With ................................................................... 10
3. Customary Basis of Article 3 ............................................................ 11
D. Appreciation ........................................................................................ 12

A. HISTORY

The Waldock Report I of 1962 proposed a reservation solely in respect of 1


agreements not in written form, as in the last part of the opening sentence
of Article 3.1 The discussion in the ILC in 1962, less fruitful for once,
concentrated on the question whether such a provision would include uni-
lateral declarations.2 The Waldock Report IV of 1965 suggested adding
international agreements concluded by subjects of international law other
than States.3 A broader discussion took place in 1965.4 The nal ILC Draft
1966 contained todays paras. (a) and (b) while reversing the structure of
the article.5 A surprisingly large number of (unsuccessful) amendments was

1
Article 2, para. 2, YBILC 1962 II 35. On the history of Article 3, see also Villiger, Cus-
tomary International Law N. 416 ; Vierdag, AVR 23 (1985) 424 .
2
See, e.g., the observation in the ILC by Verdross, YBILC 1962 I 48, para. 38; the discus-
sion ibid. 4850, and 5457. Article 2, para. 2 of the ILC Draft 1962 is reproduced at
YBILC 1962 II 163 f.
3
YBILC 1965 II 16.
4
The minutes are reproduced at YBILC 1965 I 10 , 244 f, and 280. Article 2 of the ILC
Draft 1965 was adopted by 14 votes to none, ibid. 280, para. 2. The ILC Draft 1965 is
reproduced at YBILC 1965 II 160.
5
YBILC 1966 II 190 f.
102 article

introduced at the Conference.6 After a particularly useful discussion from


which it transpired that States overwhelmingly accepted the dual contractual
and customary nature of the Convention rules, Article 3 was adopted by 102
votes to none.7
Exceptionally (and not to everybodys satisfaction), it was the Drafting Committee which
introduced para. (c) without warning at the Conference. No such amendment had
previously been tabled, nor had a delegation touched on the subject in the debate.8

B. INTERPRETATION OF ARTICLE 3

1. Scope
2 In its opening sentence Article 3 mentions certain international agreements
as not falling within the scope of the Convention (N. 3). It then gives some
indications in paras. (a)-(c) as to the law governing these agreements (N. 38).
On the whole, Article 3 conrms the validity of international agreements not
covered by the Convention (N. 5).9
The title of Article 3 appears imprecise: it refers to international agreements not within
the scope of the present Convention whereas, para. (c) concerns at least the partial
applicability of the Convention to these agreements.

2. International Agreements Not Falling Under the Convention (Opening


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

6
The amendments are reproduced at OR Documents 113 f, para. 43. For instance, China
proposed deleting Article 3 (not pressed to a vote); the US suggested adding: nothing in
the present articles shall aect the legal force of international agreements not in written
form or the application to them of any of the rules of international law (amendment
withdrawn); Switzerland suggested deleting: to which they would be subject independently
of these articles (referred to the Drafting Committee); Spain suggested substituting to
which they would be subject with to which they might be subject (referred to the Draft-
ing Committee); Mexico suggested substituting independently of these articles with in
accordance with international law.
7
OR 1969 Plenary 4, para. 21. The materials are reproduced at OR 1968 CoW 35 , 146
f; OR 1969 Plenary 7. See Villiger, Customary International Law N. 417.
8
OR 1968 CoW 146, para. 4. The Indian delegate complained, ibid. 147, para. 8 that he
could not remember the Drafting Committee having received any precise instructions
concerning the insertion of sub-paragraph [c]; see also Vierdag, AVR 23 (1985) 430
(most unusual manner).
9
Bindschedler of the Swiss delegation in Vienna, OR 1968 CoW 35, para. 47.
international agreements not within the scope 103

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


namely:
international agreements concluded between States and other subjects of inter-
national law;
international agreements concluded between such other subjects of international
law;
international agreements not in written form.

As examples of such other subjects of international law may be mentioned, under certain
circumstances: non-sovereign States and territories; member States of (Con-)Federa-
tions; unions of States; international organisations (see Articles 2, subpara. 1(i) and 5);
multinational enterprises; the Holy See; the International Committee of the Red Cross;
the Order of Malta; individuals; peoples (minorities), etc.11 Agreements not in writ-
ten form may include oral or tacit agreements and unilateral declarations accepted by
other States.12 A list of agreements not falling under the Conventionand hence under
Article 3can be found in Article 2, supbara. 1(a) (q.v., N. 20).
International agreements between or with international organisations are the subject
of the Vienna Convention on the Law of Treaties Between States and International
Organisations or Between International Organisations of 1986, which in fact applies
the provisions of the Conventionsuitably adaptedto such agreements.13

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


The inapplicability of the Convention to the international agreements men- 4
tioned (N. 3) shall not otherwise aect their position under international
law, in particular as explained in paras. (a) and (b) (N. 56).
Here, Article 3 reiterates (obviously for stylistic reasons) what is already stated in its
opening sentence, namely that the Convention does not apply to these international
agreements.14

Thus, according to para. (a), the Convention shall not aect the legal force 5
of such agreements. In particular, the Convention leaves open whether such
other agreements possess legal force under international (or national) law,

10
ILC Report 1966, YBILC 1966 II 190, para. 2; ILC Report 1962, YBILC 1962 II 164,
para. 2 (in order to remove any possibility of misunderstanding); Waldock in the ILC,
YBILC 1965 I 15, para. 69 (negative form of reservation); the statement by the Chinese
delegation in Vienna, OR 1968 CoW 35, para. 45.
11
H. Mosler, Subjects of International Law, EPIL 4 (2000) 710 .
12
ILC Report 1966, YBILC 1966 II 190, para. 2; Waldock Report I, YBILC 1962 II 35.
See also the list in le Bouthillier/Bonin, Article 3, N. 16.
13
Aust, Modern Treaty Law 8. See on the topic G. Gaja, A New Vienna Convention on
Treaties Between States and International Organizations or Between International Orga-
nizations: A Critical Commentary, BYBIL 58 (1987) 253 .
14
Statement in Vienna by the delegation of the Ivory Coast, OR 1968 CoW 41, para. 72.
104 article

and indeed does not concern the validity, operation, interpretation or eects
of such agreements.15
6 According to para. (b), the Convention shall not aect the application to
such agreements of any of the rules set forth in the present Convention
to which they would be subject under international law independently
of the Convention. States may come to consider the Convention rules, in
addition to the contractual binding nature of the agreement, also as binding
qua customary international law or qua general principles of international
law (Issues of Customary International Law, N. 5263).16
Interestingly, Article 3 refers to customary rules und general principles of international
law underlying the Convention binding not on States inter se, but on other subjects of
international law in their relations inter se or with States. Strictly speaking, the two sets of
customary rules dier in that they depend on dierent types of practice. Thus, in order
to apply the customary rules and general principles envisaged in Article 5, it would have
to be demonstrated that they had developed (not in the practice of States inter se, but:)
in the practice between the other subjects among themselves, or with States.

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


7 Para. (c) highlights one particular aspect of the law governing mixed inter-
national agreements which one State concludes with other States as well as
with other subjects of international law. It complements para. (b) where it is
stated that the Convention in principle does not apply to such agreements
(N. 6).17 Here, para. (c) exceptionally envisages the application of the
Convention to the relations of States as between themselves under inter-
national agreements to which other subjects of international law are also
parties. In other words, the relations among the States themselves always
remain governed by the Convention. States may not escape the applicability
of the Convention vis--vis other States by including a non-Statal actor among

15
Clearly it cannot be derived from the formulation in Article 3 that these other agreements
have no legal force, as was feared by the Turkish delegation in Vienna, ibid. 39, para. 40.
16
Yasseen, Chairman of the Drafting Committee, in Vienna, ibid. 146, para. 5 (the rules
stated in the Convention could apply, not as articles of the Convention, but on other
grounds, because they had another source, for example, custom); ibid. 38, para. 34; Vil-
liger, Customary International Law N. 419.
17
But see the statement in Vienna by the Indian delegation, OR 1968 CoW 147, para. 8
([i]n the absence of details, it seemed that subparagraph [c] was incompatible with sub-
paragraph [b] and that the subject-matter of subparagraph [c] was already dealt with in
subparagraph [b] . . . Moreover, when subparagraph [c] was read in conjunction with the
opening sentence, a contradiction appeared, for after agreements concluded between States
and other subjects of international law had been excluded from the scope of the Conven-
tion, subparagraph [c] stated that the Convention could apply to these agreements).
international agreements not within the scope 105

the parties.18 Of course, the States concerned are at any moment free to agree
inter se to choose other legal provisions to apply to the treaty at issue.
Para. (c) touches on a delicate matter, since relations of States as between themselves
qualify as res inter alios acta for the other non-Statal parties to the treaty and do not
concern them. Here, the Convention allows for a further fragmentation of treaty
relations (see, e.g., Article 4, N. 9; Article 19, N. 7). These problems are avoided if the
Convention provisions at issue apply qua customary international law both between
the States inter se and between States and other subjects of international law (but see
the qualications in N. 6 i.f.).

Thus, the following situations can summarily be identied in para. (c)::19 8

the international agreement governs the relations between the States and the non-
Statal parties qua contractual obligation;
the Convention governs the relations under the agreement between the States parties
to it (and, of course, parties to the Convention) inter se qua contractual obligation;
customary law underlying the Convention governs the relations under the agreement
between the States parties to it, which are not parties to the Convention, inter se;
customary law underlying the Convention also governs the relations under the agree-
ment between States and non-Statal parties;
customary law underlying the Convention also governs the relations under the agree-
ment between the other non-Statal parties inter se;
customary law other than that underlying the Convention governs the relations
under the agreement between all the parties insofar as questions not regulated by
the provisions of the . . . Convention are concerned (eighth preambular para., see
Preamble N. 16).

C. CONTEXT

1. Relationship to Other Provisions


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

18
Yasseen, Chairman of the Drafting Committee in Vienna, ibid. 147, para. 10, for whom
para (c) was a complement to the general rule set forth in the introduction. It explained
that even in the case of mixed international agreements, relations between States, but only
relations between States, were subject to the Convention. Relations between States and
international organizations or other subjects of international law, especially the complex
and indivisible relations involving both States and other subjects of international law,
could not be subject to the Convention.
19
Vierdag, AVR 23 (1985) 435; see also ibid. 432, that para. (c) disrupts the unity of the
system of law governing the treaties to which it applies. See the statement in Vienna by
the Indian delegation, OR 1968 CoW 147, para. 8 ([i]n the case of a mixed agreement,
it might not be easy to determine the rights and obligations between States on the one
hand, and between States and organizations on the other).
106 article

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

2. Matters Not Dealt With


10 Article 3 does not distinguish which Convention articles apply qua custom-
ary international law in the situations mentioned in paras. (b) (N. 6) and
(c) (N. 78).21

3. Customary Basis of Article 3


11 Paras. (a) and (b) possess no normative quality. Rather, they constitute a
general reservation in respect of general international law also to be found,
for instance, in Articles 4 and 38 (q.v. N. 10, and N. 12, respectively). Para.
(c) diers in that it circumscribes the applicable law solely for the purposes of
the present Convention. As such, it does not contain a general and abstract
rule and cannot, therefore, harden into customary international law.

D. APPRECIATION

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

20
Villiger, Customary International Law N. 419.
21
Ibid.
22
Statements in the ILC by de Luna YBILC 1965 I 11, para. 21; and in Vienna by the Cey-
lonese delegation, OR 1968 CoW 39, para. 41 (total eect of Article 3 was minimal).
23
Waldock Report IV, YBILC 1965 II 16; Villiger, Customary International Law
N. 419. See also the then USSR delegation in Vienna, according to which Article 3
played an important part in the entire system of the . . . Convention, OR 1968 CoW 41,
para. 68.
Article 4
Non-retroactivity of the Convention

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

Article 4 Non-rtroactivit de la prsente Convention

Sans prjudice de lapplication de toutes rgles noncs dans la prsente Convention


auxquelles les traits seraient soumis en vertu du droit international indpendam-
ment de ladite Convention, celle-ci sapplique uniquement aux traits conclus par
des Etats aprs son entre en viguer lgard de ces Etats.

Artikel 4 Nichtrckwirkung dieses bereinkommens

Unbeschadet der Anwendung der in diesem bereinkommen niedergelegten Regeln,


denen Vertrge unabhngig von dem bereinkommen auf Grund des Vlkerrechts
unterworfen wren, ndet das bereinkommen nur auf Vertrge Anwendung, die
von Staaten geschlossen werden, nachdem das bereinkommen fr sie in Kraft
getreten ist.

Materials:

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

Vienna Conference Vote: 81:5:17

Selected Literature:

P. Dopagne, Article 4, in: Corten/Klein (eds.) 119 ; A. Haratsch/St. Schmahl, Die


Anwendung ratione temporis der Wiener Konvention ber das Recht der Vertrge, ZR 58
(2003) 105 ; P. McDade, The Eect of Article 4 of the Vienna Convention on the Law of
Treaties 1969, ICLQ 35 (1986) 499 ; E. Orihuela Calatayud, Los tratados internacio-

ZACHARIAS
108 article

nales y su aplicacin en el tiempo. Consideraciones sobre el efecto inicial de las disposiciones


convencionales (2004); Sh. Rosenne, The Temporal Application of the Vienna Convention
on the Law of Treaties, Cornell ILJ 4 (1970) 1 ; E.W. Vierdag, The Law Governing Treaty
Relations Between Parties to the Vienna Convention on the Law of Treaties and States not
Party to the Convention, AJIL 76 (1982) 779 .

ZACHARIAS
non-retroactivity of the convention 109

CONTENTS
Paras.

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

A. HISTORY

1 The ILC Draft of 1966 contained a provision on the non-retroactivity of trea-


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

1
OR 1968 CoW 392, para. 60; on the travaux prparatoires, see Rosenne, Cornell ILJ 4
(1970) 5 ; Vierdag, AJIL 76 (1982) 779 .
2
OR Documents 252, para. 137 (Brazil, Chile, Kenya, Sweden and Tunisia).
3
OR 1969 CoW 333, para. 41.
4
See the comments in Vienna by the delegations of Uruguay, Iraq and Switzerland, ibid. 323
; the unsuccessful amendment by Iran wishing to add provisions as generally declaratory
of established principles of international law, OR Documents 252, subpara. 136 (d).
5
OR Documents 252, subpara. 136 (e).
6
Ibid. 166, para. 19.
ZACHARIAS
110 article

B. INTERPRETATION OF ARTICLE 4

1. Scope
2 Article 4 contains two separate and distinct parts. The rst part deals with the
Convention qua customary law or as regards any underlying general principles
of law. In this respect, it is stated that the application of the Convention is
without prejudice to the application of any rules set forth in the present
Convention to which treaties would be subject under international law
independently of the Convention (N. 35). The second part of Article 4
concerns the Convention qua contractual obligation and provides that the
Convention applies only to treaties which are concluded after the entry
into force of the present Convention with regard to such States (N. 6).

2. Functions of Other Sources, in Particular Customary


International Law
3 The rst part of Article 4 relates to existing rules of international law (i.e.,
sources other than treaties) underlying the Convention. At the Vienna
Conference, the ve-State-proposal leading to the later Article 4 (N. 1) referred
solely to rules of customary law, thus bearing the danger of excluding any
pertinent general principles of international law.7 As in Article 31, subpara.
3(c) (q.v., N. 25), the present formulation is broader, and the rules under
international law extend to all sources of international law within the mean-
ing of Article 38, subparas. 1(a)(c) of the ICJ-Statute. In practice, however,
the rules in Article 4 will concern mainly customary law.
4 The rules at issue are on the law of treaties. They are set forth in the pres-
ent Convention and, therefore, in writing. However, they are also binding
on the parties qua customary law or as general principles of law (N. 3). As
such, the rules underlie and exist parallel to, though independently of, the
Convention. Their validity will not depend on the entry into force and appli-
cation of the Convention (Issues of Customary International Law, N. 35). In
view of the nature of these rules, treaties would be subject to them under
international law independently of the Convention. In other words, they
concern Convention rules which are declaratory of customary international
law. Whether such customary rules underlying the Convention exist, is decided
according to the usual conditions for the formation of customary law. Article
4 thus conrms the independent existence of customary law underlying the

7
Sinclair, Vienna Convention 8; but see P. Tresselt, Correspondence, AJIL 96 (2002)
647.
ZACHARIAS
non-retroactivity of the convention 111

Convention.8 It is irrelevant here whether the customary rules existed before,


upon, or after the treatys conclusion.9
The principle has frequently been conrmed by the Court. In the Kasikili/Sedudu Island
(Botswana/Namibia) Case the Court held: neither Botswana nor Namibia are parties
to the [Convention], but . . . both of them consider that Article 31 . . . is applicable
inasmuch as it reects customary international law . . . Article 4 . . . does not, therefore,
prevent the Court from interpreting the 1890 Treaty in accordance with the rules
reected in Article 31.10
The existence and binding force of customary law depends on conditions to be ascer-
tained elsewhere in the practice of States. The existence of a customary rule will not be
directly aected if it has been codied in a treaty rule which is not in force or has not
been ratied by certain States (Issues of Customary International Law, N. 35). It is also
possible that a treaty rule generates new customary law, as envisaged in Article 38 (q.v.).
Convention rules declaratory of customary law are binding upon all States, whether or
not they have ratied the Convention. Non-declaratory rules, on the other hand, have
no such binding eects.11

Article 4 cannot as such prevent customary rules underlying the Convention 5


from enjoying retroactive eect, nor can it attribute any such eect. These
rules apply independently qua customary law, if and when their binding force
has been established, whether before or after the Conventions entry into
force. Moreover, the principle formulated in the rst part of Article 4 has a
wider signicance applying, mutatis mutandis, to all treaties. An exception
can only be seen where a State has persistently objected to the formation of
a customary rule (see Issues of Customary International Law, N. 810).12
This conclusion solves the logical problem of how Article 4 itself may operate before the
Convention has entered into force vis--vis a particular State.13 The principle to which
reference is made in Article 4 (i.e., a customary rule applies once it has come about) is
correct at any stage, hence also before the Convention becomes operative, as long as
an independent underlying rule of customary international law can be ascertained.

8
But see Aust Modern Treaty Law 14 (it has been argued that even when custom has been
codied, it retains its separate existence. This is a controversial theory).
9
But see the discussion in Dopagne, Article 4, N. 21.
10
ICJ Reports 1999 1059 18. See the situation with regard to Indonesia which had not
ratied the Convention, in the Sovereignty over Pulau Ligitan and Pulau Spadan (Indone-
sia/Malaysia) Case, ICJ Reports 2002 645, para. 37; the Armed Activities on the Territory
of the Congo (Democratic Republic of the Congo v. Rwanda) Case, ICJ Reports 2006 44,
para. 125; also the Gabcikovo-Nagymaros (Hungary/Slovakia) Case, ICJ Reports 1997 62,
para. 99.
11
See Villiger, Manual N. 397; the statement in Vienna by the Swedish delegation, OR
1969 CoW 321, para. 43.
12
Villiger, ibid. N. 87 f, 328.
13
See, e.g., Rosenne, Cornell ILJ 4 (1970) 21; dierently Karl, Vertrag 360 f.
ZACHARIAS
112 article

3. Non-Retroactivity of the Convention


6 The second part of Article 4 concerns the application of Convention rules
qua contractual obligation and provides for their non-retroactivity. This well-
established principle is enshrined in Article 28 (q.v.), namely that a legal rule
can only provide for the future; past facts and situations are governed by the
law previously in force. The Vienna Conference nevertheless considered it
safer14 to reiterate the principle also in respect of the Convention itself. As
a result, the Convention rules apply only to treaties which are concluded by
a party to the Convention after the entry into force of the present Conven-
tion for that particular State. (For the rst 35 States, the Convention entered
into force on 27 January 1980; Article 84, N. 1.) The treaties referred to are
those envisaged in Article 1 (q.v.). The date of entry into force of the treaty
in question is determined according to Articles 1117 (q.v.);15 that date lies
after the entry into force of the Convention for that State. The Convention
is therefore not applicable qua contractual obligation to a treaty concluded
between Convention parties before the Convention entered into force for
these States (see also N. 8). It may be noted that Article 4 lists no exceptions
to this principle. Still, retroactivity can be agreed upon between States inter
se, as in Article 28 (q.v., N. 8).16
For instance, the UN Law of the Sea Convention was concluded on 10 December 1982.
For all States bound by the 1969 Vienna Convention (which entered into force on 27
January 1980) on the former date, the Convention rules will apply qua contractual
obligation as between these States in respect of the UN Law of the Sea Convention.17
Conversely, in the Armed Activities on the Territory of the Congo (Democratic Republic
of the Congo v. Rwanda) Case, the Court considered that the Convention had entered
into force between the two States at a date after various UN Conventions had been
concluded for which reason the rules contained in the Vienna Convention are not
applicable.18

4. General Participation Clause?


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

14
The observation by Blix of the Swedish delegation, OR 1969 CoW 334.
15
Haratsch/Schmahl, ZR 58 (2003) 110 , for whom the entire procedure leading to
the conclusion of the treaty falls under Article 4.
16
Contra the observation in Vienna by the Cuban delegation, OR 1969 Plenary 54, para.
24 (absolute non-retroactivity).
17
Aust, Modern Treaty Law 9 f.
18
ICJ Reports 2006 44, para. 125.
19
See Thirlway, International Customary Law 108 (it will be a long time before anything
like the majority of existing treaties in eective operation will be treaties concluded between
ZACHARIAS
non-retroactivity of the convention 113

obligation, N. 6) to a subsequent treaty if all parties to that instrument were


also parties to the Convention.20 While this poses no problem in respect of
bilateral treaties, it might be feared that the Convention could not under
such circumstances be applied to multilateral conventions with widespread
membership, since it is unlikely that all member States will become parties
to the Convention.21
It is doubtful whether the terms referred to (N. 7) can be construed as mean- 8
ing with regard to all such States, and the preparatory materials lend no
support to this proposition.22 Rather, it is suggested that Article 4 is to be
interpreted as meaning that the Convention is applicable in respect of the
subsequent treaty with regard to all those treaty parties which are also parties
to the Convention.
Thus, the Convention accepts here, as elsewhere, a fragmentation of treaty relations
between the parties to a particular treaty. The application of the Convention and its
interpretation between two Convention parties, will depend, inter alia, on reservations,
suspensions and denunciations, as well as other bilateral, multilateral or general rules
applicable among them. Besides, certain parties to a treaty may at any time modify
(and interpret) the treaty inter se with eect for themselves, as provided for in Article
40, para. 4 and Article 41 (q.v.).

C. RESERVATION

Ecuador has made a declaration generally conrming the principles in Article 4 9


(see Reservations and Declarations to the Convention and Objections Thereto).

D. CONTEXT

1. Relationship to Other Provisions


The second part of Article 4 (N. 6) reiterates the contractual principle of 10
non-retroactivity enshrined in Article 28 (q.v.). The rst part of Article 4

States both or all of which are parties to the . . . Convention); also OConnell, Interna-
tional Law I 205. Article 2 of the Hague Convention states: the provisions contained . . .
in the present Convention, do not apply except between Contracting Powers, and then
only if all the belligerents are parties to the Convention.
20
Vierdag, AJIL 76 (1982) 779, 785; Frankoswka, PASIL 78 (1984) 282. This issue does
not arise in respect of declaratory Convention rules (N. 11).
21
Sinclair, Vienna Convention 8 .
22
Dopagne, Article 4, N. 15. See also the further arguments in Sinclair, ibid.; Vierdag,
AJIL 76 (1982) 780 ; J. Schmidt, Vorbehalte zu multilateralen Vertrgen unter dem
Aspekt des intertemporalen Vlkerrechts (1992) 80 ; Haratsch/Schmahl, ZR 58
(2003) 116 f.
ZACHARIAS
114 article

cannot be regarded as a true exception to Article 28 and indeed transgresses


issues of non-retroactivity (N. 6).

2. Customary Basis of Article 4


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

E. APPRECIATION

12 The contractual principle of non-retroactivity enounced in Article 4 (N. 7)


appears to serve little purpose: it is stated in more detail in Article 28 and has
in any event largely lost its functions given the broad customary basis of the
Convention as a whole (Issues of Customary International Law, N. 5263).23
The rst part of Article 4 (N. 2), on the other hand, has the important
function of unequivocally reserving customary law and any general prin-
ciples of law underlying the Convention. In this context Sir Humphrey
Waldock emphasised at the Vienna Conference:
in connexion with the proposals before the Conference on the question of non-retroac-
tivity, that nothing should be done to damage the very important impact which all great
conventions had as instruments for consolidating and settling international law.24

23
See Capotorti, RC 134 (1971 III) 442, that the many declaratory rules of the Conven-
tion chappent videmment la limitation dordre temporel tablie par larticle 4.
24
OR 1969 CoW 337, para. 80.
ZACHARIAS
Article 5
Treaties constituting international
organisations and treaties adopted within
international organisations

The present Convention applies to any treaty which is the constituent


instrument of an international organisation and to any treaty adopted
within an international organisation without prejudice to any relevant
rules of the organisation.

Article 5 Traits constitutifs dorganisations internationales


et traits adopts au sein dune organisation internationale

La prsente Convention sapplique tout trait qui est lacte constitutif dune organi-
sation internationale et tout trait adopt au sein dune organisation internationale,
sous rserve de toute rgle pertinente de lorganisation.

Artikel 5 Grndungsvertrge internationaler Organisationen


und im Rahmen einer internationalen Organisation
angenommene Vertrge

Dieses bereinkommen ndet auf jeden Vertrag Anwendung, der die Grndung-
surkunde einer internationalen Organisation bildet, sowie auf jeden im Rahmen
einer internationalen Organisation angenommenen Vertrag, unbeschadet aller
einschlgigen Vorschriften der Organisation.

ILC Draft 1966

Article 4Treaties which are constituent instruments of international


organisations or which are adopted within international organisations

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

Materials:

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


ILC Draft 1963: Article 48.
WALDOCK Report IV: Article 3bis.
Minutes: YBILC 1965 I 31 f, 308.
ILC Draft 1965: Article 3bis.
Minutes: YBILC 1966 I/1 109; I/2 294, 325, 339.
ILC Draft 1966: Article 4.
Minutes: OR 1968 CoW 42 , 147 f; OR 1969 Plenary 4 , 158 f.

Vienna Conference Vote: 102:0:1

Selected Literature:

D. Amaducci, La nature juridique des traits constitutifs des organisations internationales


(1971); P. Daillier, Article 5, in: Corten/Klein (eds.) 137 ; J. Gonzales Cmpos, La
aplicacin del futuro Convenio sobre Derecho de los Tratados a los acuerdos vinculados con
Organizaciones Internacionales (Articulo 4 del Proyecto de la C.D.I. de 1966), in: Essays in
Honour of D.A. de Luna (1968) 212 ; Sh. Rosenne, Developments in the Law of Trea-
ties 19451986 (1989) 181 ; Id., Is the Constitution of an International Organization an
International Treaty? Comunicazioni e Studi 12 (1966) 211 .

ZACHARIAS
treaties constituting international organisations 117

CONTENTS
Paras.

A. History ................................................................................................ 1
B. Interpretation of Article 5 .............................................................. 3
1. Principle: Applicability of the Convention ....................................... 3
2. Exception: Relevant Rules of the International Organisation ............ 7
C. Context .............................................................................................. 9
1. Relationship to Other Provisions ..................................................... 9
2. Customary Basis of Article 5 ............................................................ 10
D. Appreciation ....................................................................................... 11

A. HISTORY

In respect of the termination and suspension of treaties the ILC introduced 1


n 1963 a special clause on treaties which [were] constituent instruments of
international organisations or which [had] been drawn up within interna-
tional organisations.1 The Waldock Report IV of 1965 proposed a general
formulation valid for the entire Convention.2 The ILC Draft 1966 made the
application of the Convention with respect to treaties drawn up within inter-
national organisations subject to any relevant rules of the organisation.3
For once, much of the debate in the ILC on Article 5 took place in its Drafting Com-
mittee behind closed doors, e.g., as regards the term adopted (N. 6).4 The ILC Draft
1966 diers only in form rather than in substance from todays Article 5 (see N. 7).

In Vienna, States proposed a large number of amendments, and a surprisingly 2


long and substantial debate ensued.5 Various representatives of international

1
The debate is at YBILC 1963 I 122, 132, 307 f, 318, and 321; see Article 48 of the ILC
Draft 1963, YBILC 1963 II 213; on the history, see Gonzales Cmpos, Essays de Luna
passim; Rosenne, Developments 200 .
2
YBILC 1965 II 31, para. 18; see the debate at YBILC 1965 I 31 f, 308; YBILC 1966 I/1
109; and YBILC 1966 I/2 294, 325, and 339.
3
Article 4 of the ILC Draft 1966, YBILC 1966 II 191.
4
YBILC 1966 I/2 294, paras. 79 f.
5
The debate is at OR 1968 CoW 42 , 147 f; and OR 1969 Plenary 4 , and 158 f. The
amendments are reproduced at OR Documents 114 para. 51. For instance, the then
Ukrainian SSR suggested substituting shall be subject to any relevant rules with shall
take into account the relevant rules (rejected at OR 1968 CoW 58, para. 54): the US,
the Philippines and Sweden proposed deleting the article (rejected by 84 votes to ten, with
two abstentions at ibid. 57, para. 41); the UK suggested adding after the words relevant
rules the words and established practices (referred to the Drafting Committee; see N. 8);
ZACHARIAS
118 article

organisations took the oor.6 One aim of the Conference was not to impair
the rights enjoyed by international organisations by virtue of their statutes.7
The Peruvian amendment led to the nal version which divides Article 5 into
two parts, one on the Conventions applicability (N. 36) and one reserving
the position of international organisations (N. 78).8 Article 5 was adopted
by 102 votes to none, with one abstention.9
At the Conference, the US delegate McDougal feared that Article 5 conferred upon
States a comprehensive, automatic and unquestionable exemption from the fundamental
principles of the Convention, if they chose to create an international organization or
conclude agreements within the structure of such an organization . . . [S]tates desiring to
evade the Conventions basic provisions would only need to establish an international
organization to meet their requirements.10 However, it appears unlikely in practice that
States would found such an organisation for the sole purpose of avoiding application
of the Convention. It would also seem unnecessary to do so, since States are at any
time free to agree inter se to amend or abrogate any provisions of the Convention (see,
e.g., Articles 3941).11

B. INTERPRETATION OF ARTICLE 5

1. Principle: Applicability of the Convention


3 Article 5 falls within the context of international organisations. These are
dened in Article 2, subpara. 1(i) as intergovernmental organisations (q.v.,
N. 54).
4 The principle rule provided for in Article 5 is that the present Convention
applies generally to the following two categories of treaties:
any treaty which is the constituent instrument of an international organisation;
and to
any treaty adopted within an international organisation without prejudice to
any relevant rules of the organisation.12

Jamaica and Trinidad and Tobago wished the article only to cover constitutions of inter-
national organisations, not treaties adopted therein (withdrawn).
6
Ibid. 42, paras. 1 ; e.g., FAO, Council of Europe, League of Arab States, United Inter-
national Bureaux for the Protection of Intellectual Industrial Property, IBRD, UPU, UN
and WHO.
7
See the Philippines delegation, ibid. 54, para. 6.
8
Reproduced at OR Documents 115, subpara. 50(i); see the statement in Vienna by the
Expert Consultant Sir Humphrey Waldock, OR 1968 CoW 57, para. 34.
9
OR 1969 Plenary 6, para. 33; after a display of strength by the international organiza-
tions, Kearney/Dalton, AJIL 64 (1970) 506.
10
OR 1968 CoW 43, paras. 15 and 17; see also Kearney/Dalton ibid. 505.
11
Blix of the Swedish delegation, OR 1968 CoW 45, para. 36.
12
See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, ibid. 57,
para. 34 (the provisions of the Convention would be generally applicable to all treaties).
ZACHARIAS
treaties constituting international organisations 119

The treaties referred to in Article 5 are those concluded between States.13 5


Article 5 thus corresponds with Articles 1 and 2, subpara. 1(a) according to
which the Convention applies to treaties between States (q.v.).
Article 5 concerns treaties between States which were adopted within an 6
international organisation. It does not encompass treaties merely concluded
under the auspices of an international organisation or brought about through
use of its facilities or deposited with it.14 To these last mentioned treaties,
the exception in Article 5 does not apply (N. 78) and the Convention is
applicable in full (Article 9, N. 3).
International agreements between States and international organisations or between
international organisations fall completely outside the scope of the Convention. They
are the subject of the 1986 Vienna Convention on the Law of Treaties Between States
and International Organisations or Between International Organisations.15

2. Exception: Relevant Rules of the International Organisation


Article 5 provides for an exception to the rule (N. 36), namely that the appli- 7
cation of the Convention to the treaties concerned (N. 4) shall be without
prejudice to any relevant rules of the organisation. Where the international
organisation contains separate and dierent rules on a particular subject of
the law of treaties, these have priority over the Convention. Article 5 thus
provides for a balance between the lex generalis of the Convention and the
lex specialis of the rules of the various international organisations.16
Article 4 of the ILC Draft 1966 stipulated that the application of the Convention was
to be subject to any relevant rules of the organisation, thus seemingly stating that
the rules of the international organisation regularly had priority. In fact, there is no
substantial dierence between the present Article 4 and the ILC Draft 1966, and there
has always been a balance between the rule and the exception. However, as Kearney/
Dalton have pointed out, [in] its present form [the] character [of Article 5] as lex
specialis is less pronounced.17

The relevant rules will dier from one international organisation to another 8
and may concern the procedure by which treaties are adopted within the
organisation, reservations thereto, their interpretation and amendment, etc.18

13
See the delegation of Congo-Brazzaville, ibid. 47, para. 9; Aust Modern Treaty Law 8 f.
14
See the delegation of then Czechoslovakia in Vienna, OR 1968 CoW 51, para. 65; ILC
Report 1966, YBILC 1966 II 191, para. 3.
15
See on the topic G. Gaja, A New Vienna Convention on Treaties Between States and
International Organizations or Between International Organizations: A Critical Com-
mentary, BYBIL 58 (1987) 253 .
16
Statement by the Spanish delegation in Vienna, OR 1968 CoW 44, para. 23.
17
AJIL 64 (1970) 506; Rosenne, Developments 256 (more balanced).
18
Aust, Modern Treaty Law 8 f, with reference at n. 9, for instance, to the rule in the ILO
Constitution according to which reservations to ILO Conventions are prohibited, ibid.
ZACHARIAS
120 article

The rules may be written, they may also be unwritten customary law and
comprise practices to the extent that these are mandatory.19 In practice a
majority of the various issues of the law of treaties will most likely not be
covered by the organisations relevant rules, so in many cases the Conven-
tion will apply in any event.
The constitution of an international organisation may well contain rules (or practices)
on interpretation of all acts within that organisation (which as leges speciales have priority
over, for instance, Articles 31 and 32 [q.v.]). There is no logical diculty in applying
these constitutional rules to the constitution itself (Issues of Customary International
law, N. 27).20

C. CONTEXT

1. Relationship to Other Provisions


9 Article 5 is of practical relevance as regards Article 9, para. 2 (q.v., N. 1014).
This provision, on the adoption of the text of a treaty at an international
conference will, according to Article 5, be subject to any special rules of
the international organisation concerned (to the extent that the treaty was
adopted within the organisation, N. 6).21 Article 20, para. 3 (q.v., N. 67)
provides for a specic application of Article 5.

2. Customary Basis of Article 5


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

p. 109 (see also Article 19, N. 10). See also the examples in Sinclair, Vienna Convention
36, 95, and 108.
19
See the statements in Vienna by the Chairman of the Drafting Committee, Yasseen, OR
1968 CoW 147, para. 15; the UK delegation (Sir Francis Vallat), OR 1969 Plenary 4,
para. 22; the Greek delegation, OR 1968 CoW 52, para. 71 ([Article 5] did not distin-
guish between written and unwritten rules, and established practices, provided that the
relevant longus usus was accompanied by the necessary opinio juris, seemed to be covered
by the term any relevant rules ); Verdross/Simma N. 674 (anerkannte Praktiken).
20
See the statement by the then USSR delegation in Vienna, OR 1969 Plenary 5, paras.
27, 29.
21
Kohen, RGDIP 104 (2000) 593 at n. 47 (le seul intrt pratique de cette disposition
[article 5] est de ne pas rendre applicable ces traits larticle 9).
22
Statement in Vienna by Ruda of the Argentine delegation, OR 1968 CoW 52, para. 74:
the debate [in Vienna] had shown that the rule laid down in [Article 5] was one of lex
lata, codifying existing rules of customary law; Kohen, ibid. (larticle 5 . . . ne [fait] que
rendre explicite une rgle que de toute manire se dgage du reste du systme juridique
rgissant les traits).
ZACHARIAS
treaties constituting international organisations 121

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

D. APPRECIATION

Occupying at rst sight a rather modest niche in the Convention,23 Article 11


5 contains a general statement which appears as a model of exibility and
clarity:24 It ensures that the Convention remains as widely applicable as pos-
sible, whilst reserving the position of the rules of the various international
organisations.25

23
But see Sir Francis Vallat of the UK delegation in Vienna, OR 1968 CoW 44, para. 31
(in substance, [Article 5] was one of the most important before the Committee).
24
At the Conference, the US amendment advocated a more complex text referring to eight
Convention articles as exceptions; the Council of Europe even mentioned 27 exceptions
and the IBRD more than 30, see Ruda of the Argentine delegation, ibid. 52, para. 75.
25
See the Spanish delegation in Vienna, ibid. 44, paras. 26 and 28.
ZACHARIAS
PART II
CONCLUSION AND ENTRY INTO
FORCE OF TREATIES
Section . Conclusion of Treaties

ZACHARIAS
Article 6
Capacity of States to conclude treaties

Every State possesses capacity to conclude treaties.


Article 6 Capacit des Etats de conclure des traits

Tout Etat a la capacit de conclure des traits.


Artikel 6 Vertragsfhigkeit der Staaten

Jeder Staat besitzt die Fhigkeit, Vertrge zu schliessen.


ILC Draft 1966

Article 6Capacity of States to conclude treaties

1. Every State possesses capacity to conclude treaties.


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

Materials:

WALDOCK Report I: Article 3.


Minutes: YBILC 1962 I 57 , 193 , 240 , 267 f.
ILC Draft 1962: Article 3.
WALDOCK Report IV: Article 3.
Minutes: YBILC 1965 I 23 , 245 , 280 f.
ILC Draft 1965: Article 3.
Minutes: YBILC 1966 I/2 325, 339.
ILC Draft 1966: Article 5.
Minutes: OR 1968 CoW 59 , 148 ; OR 1969 Plenary 6 .
126 article

Vienna Conference Vote: 88:5:10

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

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

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

The basis of this commentary was prepared by Alison Wiebalck.

ZACHARIAS
capacity of states to conclude treaties 127

CONTENTS
Paras.

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

A. BACKGROUND

1. Introduction
In the wake of decolonisation, pre-20th century distinctions between 1
civilised and non-civilised States which had previously dictated a States
capacity to conclude valid treaties, gave way to sovereign equality according
to which all States have the capacity to conclude treaties. In modern inter-
national law jus tractatuum (the capacity to make treaties) is inherent in the
very concept of State. All sovereign States by virtue of their sovereignty enjoy
that capacity (Article 6, q.v.).1

2. History
Todays Article 6 was introduced in 1962 in Waldock Report I which recog- 2
nised the capacity of States to conclude treaties as well the potential capacity of
federal member states, dependent States and international organisations.2 In
1962 the ILC deleted any reference in the article to the capacity of dependent

1
See the S.S. Wimbledon Case, PCIJ (1923) Series A no. 1, 25 (the right of entering into
international engagements is an attribute of State sovereignty); McNair, Law of Treaties
35 ([t]he making of treaties is one of the oldest and most characteristic exercises of inde-
pendence or sovereignty on the part of States). See also on pre-ILC literature: Id., Treaties
and Sovereignty, in: Symbolae Verzijl (1958) 222 ; E. van Kleffens, Sovereignty in
International Law, RC 82 (1953 I) 5 ; M. Korowicz, Some Present Aspects of Sovereignty
in International Law, RC 102 (1961 I) 1 .
2
Article 3 of Waldock Report I, YBILC 1962 II 35 .
ZACHARIAS
128 article

States as political sensitivities were involved,3 and rapid decolonisation would


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

B. INTERPRETATION OF ARTICLE 6

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

3
Tabibi in the ILC, YBILC 1962 I 61, para. 54.
4
Statements in the ILC by Yasseen, ibid. para. 51 f; el-Erian, ibid. 70 f, para. 90.
5
E.g., Jimnez de Archaga, ibid. 58, para. 13, contra Bartos, ibid. 60, para. 43.
6
ILC Report 1962, YBILC 1962 II 164, paras. 1 f. See also Waldock Report I, YBILC
1962 II 36 f, paras. 2 .
7
See YBILC 1965 I 245 . To discuss the international status of a member state of a federal
union would come close to dealing with the question of what constituted a State which
the Commission did not intend to do, Pal, ibid. 249, para. 4. Problems arose here largely
from the double meaning of the word State, which designated both a State which was a
subject of international law and a federal member state which had personality for internal
purposes only, Ago, ibid. 28, para. 76; also Jimnez de Archaga, ibid. 245, para. 32.
8
By seven votes to three, with four abstentions; see YBILC 1965 I 280, para. 5.
9
OR 1968 CoW 68 f, paras. 46 f.
10
Ibid. 69, para. 48.
11
The Canadian delegation took the view that a federal constitution was an internal law to
be interpreted within the exclusive jurisdiction of the federal State itself, OR 1968 CoW
62, para. 48; also Kearney/Dalton, AJIL 64 (1970) 506 .
12
OR 1969 Plenary 15, para. 51.
13
Statements in the ILC by Amado, YBILC 1965 I 27, para. 61; and Jimnez de Archaga,
YBILC 1962 I 59, para. 19; see also Steinberger, ZaRV 27 (1967) 427.
ZACHARIAS
capacity of states to conclude treaties 129

an international entity cannot be a State.14 Article 6 is concerned with the


latter only.
Capacity implies the ability to claim or confer rights and obligations on other 4
subjects of international law.15 Every State possesses equal legal capacity, an
attribute which depends not on the power of each State, but on its existence
as an international legal person. The capacity to conclude treaties implies,
hence, the competence to do so.
Article 6 does not intend to resolve the matter of capacity, the elements of which
are dened in terms of itself. In particular, the ILC did not wish to be drawn into a
secondary codication of the question of international personality.16 A State possesses
capacity because it is a State: an entity is determined to be a State, inter alia, because it
has capacity. Hence, concomitant to the notion of treaty-making as an attribute of the
sovereignty of States is the denition of State itself (see Article 1, N. 8).17

To possess capacity does not imply the right to be a party to a particular 5


treaty.18 There is no rule of international law permitting every State to become
a party to every treaty. This complies with the fundamental principle of the
freedom of the parties to choose with which States they will enter into a
treaty relationship,19 and at any time to agree to terminate the treaty (Article
54, q.v.). In other words, the capacity to conclude treaties also includes the
capacity not to do so.20
Article 6 is not exclusive, it does not imply that other subjects of international 6
law have no capacity to conclude treaties.21 But only States possess capacity.
Other entities have it conferred upon them by States. The capacity a State
possesses is inherent and unlimited. Entities such as international organisa-
tions enjoy limited capacity only.22

14
Amado in the ILC, YBILC 1962 I 61, para. 48.
15
Doehring, EPIL 4 (2000) 601.
16
Statements in the ILC by Rosenne, YBILC 1965 I 25, para. 31; el-Erian, ibid. 27,
para. 57; and Briggs, YBILC 1962 I 59, para. 25; see also Waldock Report IV, YBILC
1965 II 18, para. 2.
17
Waldock in the ILC, YBILC 1965 I 252, para. 44 (the real question was what constituted a
State for the purposes of the rule that all States had the capacity to enter into treaties).
18
Th. Schweisfurth, International Treaties and Third States, ZaRV 45 (1985) 658.
19
Ago in the ILC, YBILC 1962 I 249, para. 17.
20
See here Turp/Roch, Article 6, N. 20.
21
Tunkin, YBILC 1965 I 25, para. 38.
22
Depending on the functions they full, Mosler, EPIL 4 (2000) 711 f. See Bartos in
the ILC, YBILC 1962 I 70, para. 74; Amado, YBILC 1965 I 29, para. 79 ([t]he term
State implied the qualication independent, and independent implied treaty-making
capacity ).
ZACHARIAS
130 article

7 In stating that every State possesses capacity to conclude treaties, Article 6


conrms the sovereign equality of all States (see the sixth preambular para.,
Preamble N. 13).23
8 The States to which Article 6 refers are discussed in Article 1 (q.v., N. 8),
treaties and the capacity to conclude them in Article 2, subpara. 1(a) (q.v.,
N. 914).

C. CONTEXT

1. Relationship to Other Provisions


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

2. Matters Not Dealt With


10 Article 6 does not dene the notion of capacity, the elements of which are
explained in terms of itself (N. 4).
11 Conspicuous by its absence in Article 6 is also the question of the capacity
of federal member states to conclude treaties.27 This does not mean that such
states are denied treaty-making capacity, but that any such treaties are not
governed by the Convention. If a member state of a federal State is a State

23
See the Cypriot delegation in Vienna, OR 1968 CoW 68, para. 36. The UN Declaration on
the Granting of Independence to Colonial Countries and Peoples of 1960, GA Res 1514
(XV), provides in Article 1: the subjection of peoples to alien subjugation, domination
and exploitation constitutes a denial of fundamental human rights [and] is contrary to the
[UN] Charter. See the statement by Tunkin in the ILC, YBILC 1965 I 25, paras. 37 f.
24
See, e.g., the statements in Vienna by the delegations of Italy, OR 1968 CoW 65, para. 3,
and the US, ibid. para. 6, and at OR 1969 Plenary 7, para. 52.
25
Statement in Vienna by the Thai delegation, OR 1968 CoW 67, para. 26.
26
Jennings/Watts N. 597.
27
On the federal debate in the ILC, see, inter alia, YBILC 1965 I 245 .
ZACHARIAS
capacity of states to conclude treaties 131

within the meaning of international law, its treaty-making capacity will in


any case be governed by Article 6.
Article 5, para. 2 of the ILC Draft 1966 on the Capacity of a Federal State to Conclude
Treaties was deleted in 1969 (N. 2) as it might have been interpreted as an acknowl-
edgement by the Convention that, under international law, member states of a federal
union had in principle the capacity to conclude treaties (which, in turn, would imply
that they were fully-edged members of the international community).28

3. Customary Basis of Article 6


Article 6, based on the principle of the sovereign equality of States (N. 7), 12
represents a general rule of international law and is declaratory of customary
international law.29

D. APPRECIATION

Article 6 is a one-line, seven-worded provision and the shortest in the Con- 13


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

28
Waldock in the ILC, ibid. 248, para. 75.
29
Statements in Vienna by the Cambodian delegation, OR 1968 CoW 61, para. 43; and in
the ILC by Lachs, YBILC 1965 I 24, para. 25, and at 251, para. 24; and Yasseen, ibid.
251, para. 27. See also Sinclair, Vienna Convention 21.
30
Waldock in the ILC, YBILC 1965 I 23, para. 3.
31
YBILC 1965 I 252, para. 40. See the statement by the Mongolian delegation, OR 1968
CoW 64, para. 65 (special signicance for newly independent States).
32
Statements in Vienna by the delegations of Poland, OR 1968 CoW 63, para. 60, and the
then USSR, ibid. 64, para. 63.
33
Statement in Vienna by the Cambodian delegation, ibid. 61 f, para. 43.
ZACHARIAS
Article 7
Full Powers

1. A person is considered as representing a State for the purpose of


adopting or authenticating the text of a treaty or for the purpose of
expressing the consent of the State to be bound by a treaty if:
(a) he produces appropriate full powers; or
(b) it appears from the practice of the States concerned or from other
circumstances that their intention was to consider that person as
representing the State for such purposes and to dispense with full
powers.
2. In virtue of their functions and without having to produce full powers,
the following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign
Aairs, for the purpose of performing all acts relating to the con-
clusion of a treaty;
(b) heads of diplomatic missions, for the purpose of adopting the text
of a treaty between the accrediting State and the State to which
they are accredited;
(c) representatives accredited by States to an international confer-
ence or to an international organisation or one of its organs, for
the purpose of adopting the text of a treaty in that conference,
organisation or organ.

Article 7 Pleins pouvoirs

1. Une personne est considre comme reprsentant un Etat pour ladoption ou


lauthentication du texte dun trait ou pour exprimer le consentement de lEtat
tre li par un trait:
a) si elle produit des pleins pouvoirs appropris; ou
b) sil ressort de la pratique des Etats intresss ou dautres circonstances quils
avaient lintention de considrer cette personne comme reprsentant lEtat
ces ns et de ne pas requrir la prsentation de pleins pouvoirs.
full powers 133

2. En vertu de leurs fonctions et sans avoir produire de pleins pouvoirs, sont


considrs comme reprsentant leur Etat:

a) les chefs dEtat, les chefs de gouvernement et les ministres des aaires trangres,
pour tous les actes relatifs la conclusion dun trait;
b) les chefs de mission diplomatique, pour ladoption du texte dun trait entre
lEtat accrditant et lEtat accrditaire;
c) les reprsentants accrdits des Etats une confrence internationale ou auprs
dune organisation internationale ou dun de ses organes, pour ladoption du
texte dun trait dans cette confrence, cette organisation ou cet organe.

Artikel 7 Vollmacht

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

a) wenn sie eine gehrige Vollmacht vorlegt oder


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

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

a) Staatsoberhupter, Regierungschefs und Aussenminister zur Vornahme aller


sich auf den Abschluss eines Vertrags beziehenden Handlungen;
b) Chefs diplomatischer Missionen zum Annehmen des Textes eines Vertrags
zwischen Entsende- und Empfangsstaat;
c) die von Staaten bei einer internationalen Konferenz oder bei einer interna-
tionalen Organisation oder einem ihrer Organe beglaubigten Vertreter zum
Annehmen des Textes eines Vertrags im Rahmen der Konferenz, der Organisa-
tion oder des Organs.

ZACHARIAS
134 article

ILC Draft 1966

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

1. Except as provided for in paragraph 2, a person is considered as representing a


State for the purpose of adopting or authenticating the text of a treaty or for the
purpose of expressing the consent of the State to be bound by a treaty only if:

(a) He produces appropriate full powers; or


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

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

(a) Heads of State, Heads of Government and Ministers for Foreign Aairs, for
the purpose of performing all acts relating to the conclusion of a treaty;
(b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty
between the accrediting State and the State to which they are accredited;
(c) Representatives accredited by States to an international conference or to an
organ of an international organisation, for the purpose of the adoption of
the text of a treaty in that conference or organ.

Materials:

WALDOCK Report I: Article 4.


Minutes: YBILC 1962 I 71 , 195 , 243 , 268 f.
ILC Draft 1962: Article 4.
WALDOCK Report IV: Article 4.
Minutes: YBILC 1965 I 32 , 253 , 281.
ILC Draft 1965: Article 4.
Minutes: YBILC 1966 I/2 325, 339.
ILC Draft 1966: Article 6.
Minutes: OR 1968 CoW 69 , 185 ; OR 1969 Plenary 16.

Vienna Conference Vote: 101:0:3

Selected Literature:

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

The basis of this commentary was prepared by Alison Wiebalck.


ZACHARIAS
full powers 135

CONTENTS
Paras.

A. Background ........................................................................................ 1
1. Introduction .................................................................................... 1
2. History ............................................................................................ 2
B. Interpretation of Article 7 .............................................................. 3
1. Scope ............................................................................................... 3
2. General Rule (Subpara. 1[a]) ............................................................ 8
3. Dispensation (Subpara. 1[b]) ........................................................... 10
4. Full Powers in Virtue of a Persons Functions (Para. 2) ...................... 12
a) Heads of State and Government; Ministers for Foreign Aairs
(Subpara. 2[a]) ........................................................................... 15
b) Heads of Diplomatic Missions (Subpara. 2[b]) ............................ 17
c) Representatives at International Conferences or Organisations
(Subpara. 2[c]) ............................................................................ 18
C. Reservation ........................................................................................ 20
D. Context .............................................................................................. 21
1. Relationship to Other Provisions ...................................................... 21
2. Matters Not Dealt With ................................................................... 22
3. Customary Basis of Article 7 ............................................................ 23
E. Appreciation ....................................................................................... 24

A. BACKGROUND

1. Introduction
When negotiators were regarded as the agents of their Sovereigns, full pow- 1
ers authorised them to conclude an agreement complete with an assurance
by the principal to ratify the agreement.1 Those full powers took the form
of comprehensive documents dening the agents authority.2 The form and
language were of fundamental importance since a Sovereign could only refuse

1
Murty, International Law 206. The original purpose of a full power was to bind the sov-
ereign granting it, McNair, Law of Treaties 121. See generally J.M. Jones, Full Powers
and Ratication (1946).
2
OConnell, International Law I 211 f.

ZACHARIAS
136 article

to ratify a treaty concluded by his agent if the latter exceeded his authority.3
In time, agreements became commitments on behalf of the State, not the
principal. Treaties could be concluded only with the approval of the legisla-
ture.4 Expanding world trade spawned other quicker and more ecient means
of concluding treaties including inter-governmental and inter-departmental
agreements (Article 11, N. 78). Simplied treaty-making procedures no
longer required personal representation by the Head of State, now often
replaced by the Head of Government, the Minister for Foreign Aairs or
their representatives.5 In turn, the importance of full powers declined.6 Even
the practice of issuing full powers when an instrument of ratication was
deposited fell away, mere possession of the document being considered suf-
cient evidence of the authority of the representative to express the consent
of the State.7

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

3
Sinclair, Vienna Convention 30.
4
Murty, International Law 207.
5
Reuter, Introduction N. 19.
6
ILC Report 1966, YBILC 1966 II 193, para. 3; Sinclair, Vienna Convention 30;
OConnell, International Law 211 f.
7
OConnell, ibid. 212; J.M. Jones, Full Powers and Ratication (1946) 33.
8
YBILC 1962 II 38 ; see Articles 6 and 15 of the 1959 Fitzmaurice Report IV, YBILC
1959 II 98 , 105 f. The ILC debate in 1962 is at YBILC 1962 I 71 , 195 , 243 , and
268 f.
9
ILC Report 1962, YBILC 1962 II 165 , in particular 165, para. 1.
10
YBILC 1965 II, 18 at 20, para. 3. The ILC debate in 1965 is at YBILC 1965 I 32 ,
253 , and 281; that of 1966 at YBILC 1966 I/2 325, and 339.
11
Article 4 of the ILC Draft 1965 is at YBILC 1965 II 160, and Article 6 of the ILC Draft
1966 at YBILC 1966 II 192 . For an account of the legislative evolution of Article 7, see
Hutchinson, Australian YBIL 17 (1996) 190 .
12
See OR Documents 119 , paras. 71 . The proposal of the Federal Republic of Germany
to include a reference to internal law was withdrawn, OR 1968 CoW 75, para. 69. The
ZACHARIAS
full powers 137

advisability of retaining subpara. 1(b) (N. 1011); however, a proposal by


Sweden and Venezuela to delete this provision was defeated and subpara.
1(b) approved.13 In 1969, after incorporating an amendment by Ghana on
subpara. 1(b), the Conference adopted Article 6 by 101 votes to none, with
three abstentions.14

B. INTERPRETATION OF ARTICLE 7

1. Scope
The matter of a representative producing full powers arises in Article 7 for the 3
purpose of adopting or authenticating the text of a treaty or expressing
the consent of a State to be bound by a treaty (Articles 911, q.v.). Article
7 relates, not to the initial stages of treaty making, but to the steps taken in
connection with the conclusion of a treaty, which is consistent with its posi-
tion in Section 1 of Part II on the Conclusion of Treaties.15
According to Article 2, subpara. 1(c) (q.v., N. 2930), full powers means a document
emanating from the competent authority of a State designating a person or persons to
represent the State for negotiating, adopting or authenticating the text of a treaty, for
expressing the consent of the State to be bound by a treaty, or for accomplishing any
other act with respect to a treaty.
While Article 7 must be read together with this denition of full powers in Article 2,
subpara. 1(c), the scope of the latter is wider, including also negotiations as well as
any other act with respect to a treaty.

A person is considered as representing his State for the purpose of perform- 4


ing certain acts in relation to a treaty when designated by the competent State
authority to have the relevant authority to accomplish such acts.16 Article 7

amendments by Hungary, Poland, Italy, Spain, the US, Iran and Mali were referred to the
Drafting Committee.
13
The proposal to delete subpara. 1(b) was rejected by 51 votes to 13, with 23 abstentions,
OR 1968 CoW 76, para. 71. Subpara. 1(b) was then adopted by 83 votes to three, with
ve abstentions, OR 1968 CoW 188, para. 30. The debate in 1968 is at OR 1968 CoW
69 , and 185 .
14
OR 1969 Plenary 16, para. 57.
15
But see the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR
1968 CoW 75, para. 65 (negotiation [was] not really a specic stage of the process of
concluding a treaty [and] seemed to be covered by the reference to adoption and authen-
tication); Bindschedler of the Swiss delegation, ibid. 72 f, para. 41 (the greater power
to adopt the text of a treaty included the lesser power to negotiate).
16
Jennings/Watts N. 597. The formulation representing is to be distinguished from
represents. Thus, Article 7 was drafted not from the point of view of the ocials per-
forming the acts, but from the point of view of their counterparts; see Waldock, in the
ILC, YBILC 1965 I 33, para. 38 , para. 42.
ZACHARIAS
138 article

lists the various persons in respect of full powers. It states the general rule
(subpara. 1[a], N. 89) before enumerating the exceptions (subparas. 1[b]
and 2[a][c], N. 1519). Thus, States may be represented:
formally, by persons holding full powers (subpara. 1[a], N. 89);
informally, when the participating States decide that full powers are not required
because other factors provide an adequate basis for mutual condence (subparas. 1
[b], N. 1011); and,
by the persons listed in virtue of their special functions and legal status under inter-
national law (para. 2, N. 1219).17
Article 7 is concerned with the evidence of authority, not the authority itself. The actual
authority of State organs is a matter for the internal law of each State only. Article 7
operates on the international plane.18
5 Article 7 states who is required to produce an instrument of full powers and
who is presumed to possess authority without the production of full powers,
i.e., whether or not it is safe for a State to conclude an agreement without hav-
ing to call for full powers.19 The crucial point here is whether a representative
is competent to bind the authority he purports to represent.20
6 A representatives authorisation is of practical signicance mainly in the
case of agreements entering into force on signature, exchange of instru-
ments or other simplied means (Articles 1113, q.v.).21 For when a treaty
is subject to ratication, a representative acting within his authority does
not nally commit his State to be bound by the treaty (Article 14, N. 12).
7 Article 7 draws attention to the risk when the production of full powers is
dispensed with, e.g., as in subpara. 1(b) (N. 1011).22 A State accepting a
representatives signature without calling for production of full powers may
nd that the person lacked authority or exceeded the authority granted to

17
See the observation by the Romanian delegation, OR 1968 CoW 74, para. 56.
18
These distinctions generated much comment during the preparation of Article 7; see, e.g.,
the observations to the ILC by the Governments of Austria, Waldock Report IV, YBILC
1965 II 18; and Luxembourg, ibid. 19; also the statement in Vienna by Blix of the Swedish
delegation, OR 1968 CoW 70, para. 17; the ILC Report 1966, YBILC 1966 II 192, para. 1;
the statements in the ILC by Waldock, YBILC 1965 I 33, para. 38; and Briggs, ibid.
34, para. 49, and 74, para. 52. For a vigorous discussion on the competence of a domestic
organ to conclude international agreements, see Article 21 of the Harvard Draft on the
Law of Treaties, AJIL 29 (1935) Supplement 992 .
19
ILC Report 1966, YBILC 1966 II 192, para. 1; Ago in the ILC, YBILC 1965 I 34 f, paras.
60 and 62.
20
See the observation by the Swedish Government to the ILC, Waldock Report IV, YBILC
1965 II 19; Yasseen in the ILC, YBILC 1965 I 34, para. 53.
21
Jennings/Watts N. 597; Aust, Modern Treaty Law 78 f.
22
See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR
1968 CoW 75, para. 63.
ZACHARIAS
full powers 139

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

2. General Rule (Subpara. 1[a])


According to subpara. 1(a), a person is considered as representing a State if 8
he produces appropriate full powers. Full powers applies to the instrument
or document, not to the legal act itself.25 Appropriate full powers enables
accommodation of any (international) State practice in the matter.26 Con-
versely (and subject to the other exceptions in Article 7, N. 1019), if no
full powers are produced, the person is not considered to possess authority
to commit his State to be bound by the treaty.
The production of appropriate full powers is the fundamental safeguard 9
for the representatives of the States concerned with respect to each others
qualications to represent their State for the purpose of performing the
particular act in question.27 Until the instrument is withdrawn, full powers
remain valid indenitely as long as there is an act covered by them yet to be
performed.28

3. Dispensation (Subpara. 1[b])


Subpara. 1(b) oers States the option to dispense with full powers.29 Thus, 10
authorisation to represent the State in the treaty-making procedure can be
established without full powers, if it appears from the practice of the States
concerned or from other circumstances that States intended to consider
that person as representing the State for such purposes, i.e., the purposes
set out in the opening sentence of para. 1 (N. 3).

23
Observation by the Swedish Government to the ILC, Waldock Report IV, YBILC 1965
II 19; also ibid. 21, para. 7, See also Kovacs, Article 7, N. 6971.
24
See the statements in the ILC by Waldock, YBILC 1965 I 39, para. 40, and Rosenne,
YBILC 1962 I 72, para. 22.
25
Statement in the ILC by its Chairman Yasseen, YBILC 1966 I/2 325, para. 77.
26
Statement in Vienna by the Indian delegation, OR 1968 CoW 73, para. 43.
27
ILC Report 1966, YBILC 1966 II 193, para. 3. See the Supreme Court of Israel in the
1968 Attorney-General of Israel v. Kamiar Case, ILR 44 (196668) 262 ([a] State whose
competent Minister for Foreign Aairs authorized an Ambassador in a formal document
of full powers to sign a given treaty with another State cannot deny the signature of that
authorized person on the treaty, and the signature binds the State according to the rules
of international law).
28
Aust, Modern Treaty Law 77.
29
ILC Report 1966, YBILC 1966 II 193, para. 3.
ZACHARIAS
140 article

Insofar as dispensation transpires from the practice of States concerned, this requires
active or implied conduct indicating a common intention that the States parties con-
cerned regard the particular category of ocials as authorised and not requiring full
powers.30 Other circumstances (the term is broader than that of the practice of States)31
can be seen, e.g., in written or oral statements of a Government according to which a
particular ocial is authorised to conclude an agreement with another State. 32
The text proposed in Vienna in 1969 read: it appears from the practice of the States
concerned . . . that their intention was to dispense with full powers.33 The text nally
adopted in subpara. 1(b) (it appears from the practice of the States concerned . . . that
their intention was to consider that person as representing the State for such
purposes and to dispense with full powers) emphasises the limit on that particular
representatives authority to the specic purposes stipulated in the opening sentence
of para. 1 (N. 3).34

11 States may agree to dispense with full powers in bilateral negotiations or if


it is apparent that the result of the negotiations could be incorporated in an
agreement in simplied form, usually by an exchange of notes in negotia-
tions between Ministers for Foreign Aairs.35 In such cases, the onus is on the
negotiators to see that they are qualied to bind their respective States.36

4. Full Powers in Virtue of a Persons Functions (Para. 2)


12 Paragraph 2 sets out the three categories under which persons are considered
in international law as representing their State in virtue of their functions
without having to produce full powers.37 These three categories are unquali-
ed exceptions as in subpara. 2(a) (N. 1516), or qualied exceptions as
in subparas. 2(b) and (c) (N. 1719), to the general rule in subpara. 1(a)
(N. 89) requiring production of appropriate full powers. In the cases of

30
Murty, International Law 217.
31
Statements in Vienna by the Polish delegation, OR 1968 CoW 73, para. 50; and the Expert
Consultant, Sir Humphrey Waldock, ibid. 75, para. 64.
32
Statements by the delegations of Sweden (Blix), ibid. 70, para. 16, and Venezuela, ibid. 71,
para. 22. See also Murty, International Law 217. The words practice of States concerned
go back to an amendment by the US, OR Documents 120, subpara. (ii)(d); see the state-
ment by the Canadian delegation, OR 1968 CoW 72, para. 31; also Aust, Modern Treaty
Law 77 f.
33
OR Documents 121, para. 79.
34
The amendment aimed at clarifying the text; see Yasseen as Chairman of the Drafting
Committee, OR 1969 Plenary 16, para. 56.
35
See the statements by the delegations of then Czechoslovakia, OR 1968 CoW 70, para.
15; India, ibid. 73, para. 44; and Argentina, ibid. 74, para. 53; and by the Expert Consul-
tant, Sir Humphrey Waldock, ibid. 75, para. 63 (if the provision were omitted, a large
category of treaties, namely agreements in simplied form, would not be covered). See
also Jennings/Watts N. 597 n. 11 and 12.
36
Statement by the Indian delegation, OR 1968 CoW 73, para. 44.
37
ILC Report 1966, YBILC 1966 193, para. 4.
ZACHARIAS
full powers 141

para. 2, a State is entitled to rely on the competence of a representative to


bind his State without requiring specic evidence of that authority.38
In the Land and Maritime Boundary (Cameroon/Nigeria) Case, Nigeria argued that
Article 7, para. 2 [w]as solely concerned with the way in which a persons function as a
States representative [was] established, but [did] not deal with the extent of that persons
powers when exercising that representative function.39 The Court disagreed with refer-
ence to the ILC Report 1966 according to which Heads of State . . . are considered as
representing their State for the purpose of performing all acts relating to the conclusion
of a treaty (see Article 46, N. 14).40

Article 7, para. 2 raises an incontestable presumption that the designated 13


oce-holders are ex ocio entitled to perform the specied acts without the
need to produce full powers notwithstanding that, as a matter of internal
law, they may not be empowered to do so.41
As the ILC Report 1966 pointed out, if internal law limiting the powers of State organs
to enter treaties was to render voidable any consent given on the international plane in
disregard of a constitutional limitation, it would follow that other States would not
be entitled to rely on the authority to commit the State ostensibly possessed by a Head
of State, Prime Minister, Foreign Minister, etc., under Article [7]; they would have to
satisfy themselves in each case that the provisions of the States constitution are not
infringed or take the risk of subsequently nding the treaty void.42

To possess the authority to perform acts relating to treaty-making without 14


having to produce full powers is essential to the process of simplied treaty-
making.43 However, it is always open to a State to require full powers for a
particular treaty agreement to which special importance is attached.44 The
words without having to produce thus imply two sides of the same coin: on
the one hand, the right of any negotiating state to consider certain persons
holding a particular position as being duly authorised; and, on the other, the
right to call for an instrument of full powers in certain cases.45

38
Waldock Report IV, YBILC 1965 II 20, para. 3; ILC Report 1966, YBILC 1966 II 193,
para. 4.
39
ICJ Reports 2002 123, paras. 258 (italics added ).
40
Ibid., 125, para. 265, with reference to YBILC 1966 II 193, para. 4. See P. dArgent, Des
frontires et des peuples: Laaire de la frontire terrestre et maritime entre le Cameroun
et le Nigria (arrt sur le fond), AFDI 48 (2002) 301 .
41
Sinclair, Vienna Convention 32.
42
ILC Report 1966, YBILC 1966 II 240.
43
Observation by the Danish Government to the ILC, Waldock Report IV, YBILC 1965
II 19.
44
See the statements in Vienna by the Canadian delegation, OR 1968 CoW 72, para. 32;
and Yasseen, Chairman of the Drafting Committee, ibid. 186, para. 9 (self-evident that
a State always had the right to require full powers for the performance of an international
act relating to the conclusion of a treaty).
45
Even from Ministers for Foreign Aairs; see the US delegation in Vienna, ibid. 70, para.
12; Reuter in the ILC, YBILC 1965 I 37, para. 17.
ZACHARIAS
142 article

a) Heads of State and Government; Ministers for Foreign Aairs


(Subpara. 2[a])
15 Subpara. 2(a) covers Heads of State, Heads of Government and Ministers
for Foreign Aairs. Each is recognised in international law as representing
his State for the purpose of performing all acts relating to the conclusion
of a treaty, ranging from adopting and authenticating the text of a treaty to
signature, ratication and accession including the deposit and exchange of
instruments of ratication, accession or acceptance.46 Subpara. 2(a) contains
a presumption that these persons possess the capacity to conclude treaties.47
They need provide no full powers or other kind of evidence of their author-
ity to execute the acts in question. Indeed, it is from these persons that full
powers are issued.
In international law the State is a subject of international law and the Head of State
its representative. The Head of Government is the head of the executive authority.
The Minister for Foreign Aairs is the member of Government charged with the
conduct of the States international relations48 and as such particularly concerned with
the conclusion of treaties.
In the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia) (Preliminary Objections) Case, the Court
relied on Article 7, para. 2 in support of its conclusion (albeit going beyond the law of
treaties) that every Head of State is presumed to be able to act on behalf of the State
in its international relations.49
16 Given that subpara. 2(a) provides that the three State organs in question
(N. 15) may in virtue of their functions be considered as possessing authority

46
See the statements in the ILC by Waldock, YBILC 1962 I 76, paras. 79 and 86; Lachs,
ibid., para. 85; and Castrn, YBILC 1965 I 38, para. 26. Thus, the powers in subpara.
2(a) are wider than those in subparas. 2(b) and (c) (N. 1719), Lachs, ibid. 253 f, para.
65; Castren, ibid. para. 61; Sir Humphrey Waldock as Expert Consultant in Vienna,
OR 1968 CoW 75, para. 61.
47
See the statements in Vienna by the delegations of the Federal Republic of Germany, OR
1968 CoW 69, para. 5; and Sweden (Blix), ibid. 70 f, para. 18.
48
Watts, RC 247 (1994 III) 99. According to Article 41, para. 2 of the Vienna Convention
on Diplomatic Relations of 1961, the Minister for Foreign Aairs is the proper channel of
communication for diplomatic business. See furthermore the World Court in the Eastern
Greenland (Denmark/Norway) Case, PCIJ (1933) Series A/B no. 53 71 ([t]he Court
considers it beyond all dispute that a reply of this nature [the Norwegian Government
would not make any diculties in the settlement of this matter] given by the Minister
for Foreign Aairs on behalf of his Government in response to a request by the diplomatic
representative of a foreign Power, in regard to a question falling within his province, is
binding upon the country to which the minister belongs). In the Maritime Delimitation
and Territorial Questions (Qatar/Bahrain) Case, ICJ Reports 1994 112, para. 25, the Court
held that the minutes signed by the foreign ministers constituted an international agree-
ment, without considering the constitutional argument raised by Bahrain that its foreign
minister was not constitutionally empowered to conclude such an agreement.
49
ICJ Reports 1996 622, para. 44.
ZACHARIAS
full powers 143

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

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


Subpara. 2(b) concerns heads of diplomatic missions. In the context of 17
treaty making, they represent their State for the purpose of adopting the
text of a treaty between the accrediting State and the State to which they
are accredited. (see Article 9, q.v.).51 Thus, heads of diplomatic missions
cannot represent their States for the purpose of performing all acts relating
to the conclusion of a treaty.52 A further limitation lies therein that heads
of diplomatic missions are empowered to adopt treaties only between the
accrediting State and the State to which they are accredited, i.e., between
their own State and the State to which they are assigned.53 Acts exceeding
subpara. 2(b) may fall under subparas. 1(a) and (b) (N. 811).

c) Representatives at International Conferences or Organisations


(Subpara. 2[c])
Subpara. 2(c) covers representatives accredited by States to an interna- 18
tional conference or to an international organisation (Article 2, subpara.
1[i], N. 54) or one of its organs for the purpose of adopting the text of
a treaty in that conference, organisation or organ (see Article 9, para. 2,
N. 1014). The powers of these persons correspond with those of subpara.
2(b) (N. 17), i.e., they have automatic qualication to represent their State
solely in respect of the adoption of a treaty.54 Under Article 7, therefore, a
person accredited to an international organisation as a representative of his
State has the same powers as the head of a permanent mission.55 Any act
relating to the conclusion of a treaty beyond adopting the text in that specic
conference, organisation or organ to which the representative is accredited

50
Waldock Report IV, YBILC 1965 II 20, para. 4.
51
ILC Report 1966, YBILC 1966 II 193, para. 5.
52
Ibid.; Verdross in the ILC, YBILC 1962 I 72, para. 25. Article 3, subpara. 1(c) of the
Vienna Convention on Diplomatic Relations 1961 provides that the functions of a dip-
lomatic mission consist, inter alia, in . . . negotiating with the government of the receiving
State.
53
Waldock in the ILC, YBILC 1966 I/2 325, para. 79.
54
ILC Report 1966, YBILC 1966 II 193, paras. 5 f; Waldock in the ILC, YBILC 1962
I 244, para. 83 (heads of permanent missions to international organizations possessed
certain treaty-making functions analogous to those exercised by heads of diplomatic
missions).
55
ILC Report 1966, ibid. para. 6. See the statements by Rosenne, YBILC 1962 I 244, para.
73, also 196, para. 5; and Lachs, YBILC 1965 I 254, para. 67.
ZACHARIAS
144 article

requires full powers under subpara. 1(a) (N. 89) except as provided for by
subpara. 1(b) (N. 1011).56
The representatives comprise those entitled to represent their State and do not include
all members of the delegation.57 They are accredited if they possess credentials authoris-
ing them to represent their State.58
19 The right of the representative is limited to adoption of the text of a treaty
in that conference, organisation or organ where he is accredited (e.g., in
the UN to the General Assembly or the Security Council). His powers do
not extend even to any another organ of the same international organisa-
tion,59 though modern practice tends to envisage regular accreditation for
the organisation as a whole.60

C. RESERVATION

20 In 1977 Finland introduced an interpretative statementobjected to by the


United Kingdomwhich it withdrew on 20 April 2001 (see Reservations and
Declarations to the Convention and Objections Thereto).

56
Murty, International Law 216; do Nascimento e Silva, EPIL 2 (1995) 496.
57
Statement in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1968 CoW
186, para. 6. The general term representatives was chosen in preference to the somewhat
awkward heads of a permanent mission to an international organization; compare the
present subpara. 2(c) with Article 4, subpara. 2(b) of the 1962 ILC Draft, YBILC 1962
II 164 f.
58
Sabel, Procedure 44 . Credentials give notice of the name of the person authorised to
act as a representative. On the relationship and distinction between credentials and full
powers, see Murty, International Law 201 , 216.
59
See the statements in Vienna by Expert Consultant Sir Humphrey Waldock as, OR 1968
CoW 75, para. 66; and in the ILC, YBILC 1965 I 254, para. 76; and by the Chairman,
Yasseen, and Rosenne, ibid., paras. 79 and 80, respectively.
60
See the statement in Vienna by el-Erian of the United Arab Republic, OR 1968 CoW
71 f, para. 29, mentioning the Convention on the Privileges and Immunities of the UN
of 1946 which refers to representatives to the principal and subsidiary UN organs as well
as to conferences convened by the UN; also Yasseen, Chairman of the Drafting Com-
mittee, ibid. 186, para. 6 (contemporary practice showed that some representatives were
accredited not merely to an organ of an international organization, but to the organization
as a whole).

ZACHARIAS
full powers 145

D. CONTEXT

1. Relationship to Other Provisions


The diering scopes of Article 7 and Article 2, subpara. 1(c) have been indicated 21
above (N. 3). The relationship with other provisions may be summarised as
follows:
According to Article 6 (q.v.), States have the capacity to conclude treaties. That capacity
is exercised by various State organs. The authority of the various organs to perform acts
in relation to a treaty is a question of competence according to Article 7.
Article 8 (q.v.) provides that an act relating to the conclusion of a treaty performed by
a person not authorised under Article 7 is without legal eect unless conrmed by the
State.61
As provided for in Articles 1115 (q.v.), the consent of a State to be bound does not
necessarily rely on the production of full powers. For example, Article 12, subpara. 1(c)
(q.v., N. 11) and Article 14, subpara. 1(d) (q.v., N. 11) state that the intention of the
State to give that eect to the signature or to sign the treaty subject to ratication appears
from the full powers of its representative or was expressed during the negotiation.
Article 46 (q.v.) deals with the invalidity of a treaty arising from a manifest violation of
domestic law, whereas Article 7 is conned to stating where the risk of not producing
full powers lies on the international level.62
Article 47 (q.v.) concerns specic restrictions on the authority of the representative to
express the consent of a State.
Article 67, para. 2 (q.v., N. 5) stipulates that a representative may be required to produce
full powers when communicating an instrument declaring invalid etc. the operation
of a treaty.
Article 77, subpara. 1(a) (q.v., N. 5) provides that full powers may be kept in the custody
of the depositary. In practice, the depositary will insist on the production of full powers
for the signature of treaties for which he is to be the depositary.63

61
See the statement by the Indian delegation in Vienna, OR 1968 CoW 73, para. 45; do
Nascimento e Silva, EPIL 2 (1995) 496. Article 8 is the corollary to Article 7, Sinclair,
Vienna Convention 33.
62
Statements in Vienna by the delegations of the Federal Republic of Germany, OR 1968
CoW, 69, para. 5; Switzerland, ibid. 72, para. 34; India, ibid. 73, para. 45; Sir Humphrey
Waldock (Expert Consultant), ibid. 75, para. 67; Iran, ibid. 240, para. 20; and by Briggs
in the ILC, YBILC 1962 I 74, para. 53.
63
Aust, Modern Treaty Law 78; Holloway, Modern Trends 442 f.

ZACHARIAS
146 article

2. Matters Not Dealt With


22 The negotiation stage of treaty-making is not specifically within the
ambit of Article 7 though it is mentioned in Article 2, subpara. 1(c) (q.v.,
N. 2930).64

3. Customary Basis of Article 7


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

E. APPRECIATION

24 Article 7 contributes to safeguarding the certainty of international treaty rela-


tions by dening the persons with authority to bind their State. The provision
is nevertheless suciently exible to meet the needs of modern State practice.67
As a part of the varied and complex procedures of treaty-making, the issuing
of full powers also serves as an important indication of the commitment of
the parties to be bound by the treaty.68

64
It appeared in Article 4 of the ILC Draft 1965, YBILC 1965 II 160, but was later dropped:
it was self-evident that negotiation was an important phase of the treaty-making process,
but as a legal rule could not be worked out, Tunkin in the ILC, YBILC 1965 I 255,
para. 87; see the Expert Consultant in Vienna, Sir Humphrey Waldock, OR 1968
CoW 75, para. 65 (negotiation . . . not really a specic stage of the process of concluding
a treaty).
65
See the statements by the delegations of Switzerland (Bindschedler), OR 1968 CoW 72,
para. 34; India, ibid. 73, para. 42; and by Waldock in the ILC, YBILC 1965 I 254, para.
75 f, in respect of subpara. 2(c) (N. 1819); also Kearney/Dalton, AJIL 64 (1970) 508
(generally accepted practice); Kovacs, Article 7, N. 13 (pratique coutumire stable).
On the early doubts expressed by the German Government as to para. 2 (N. 1219), see
Ress, Verfassung 809 f.
66
See the Indian delegation, OR 1968 CoW 73, para. 45.
67
Statements by the Chilean delegation, OR 1968 CoW 71, para. 23; Lachs in the ILC,
YBILC 1965 I 35, para. 64; Tsuruoka, ibid. para. 81; Sinclair, Vienna Convention 32.
68
Murty, International Law 206. See, for example, Article 12, subpara. 1(c) (q.v.,
N. 1114).
ZACHARIAS
Article 8
Subsequent conrmation of an act performed
without authorisation

An act relating to the conclusion of a treaty performed by a person who


cannot be considered under Article 7 as authorised to represent a State
for that purpose is without legal eect unless afterwards conrmed by
that State.

Article 8 Conrmation ultrieure dun acte accompli sans autorisation

Un acte relatif la conclusion dun trait accompli par une personne qui ne peut, en
vertu de larticle 7, tre considre comme autorise reprsenter un Etat cette n
est sans eet juridique, moins quil ne soit conrm ultrieurement par cet Etat.

Artikel 8 Nachtrgliche Besttigung einer ohne Ermchtigung


vorgenommenen Handlung

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

ILC Draft 1966

Article 7Subsequent conrmation of an act performed without authority

An act relating to the conclusion of a treaty performed by a person who cannot be


considered under Article 6 as representing his State for that purpose is without legal
eect unless afterwards conrmed by the competent authority of the State.

148 article

Materials:

WALDOCK Report II: Article 6.


Minutes: YBILC 1963 I 23 , 207 f, 289, 311, 317.
ILC Draft 1963: Article 32.
WALDOCK Report IV: Article 32.
Minutes: YBILC 1966 I/1 11 , 115; 1966 I/2 335, 339.
ILC Draft 1966: Article 7.
Minutes: OR 1968 CoW 79 , 188; OR 1969 Plenary 16 f, 159.

Vienna Conference Vote: 103:0:2

Selected Literature:

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

ZACHARIAS
subsequent confirmation of an act 149

CONTENTS
Paras.

A. Background ......................................................................................... 1
1. Introduction ..................................................................................... 1
2. History ............................................................................................. 2
B. Interpretation of Article 8 ............................................................... 3
C. Context ............................................................................................... 8
1. Relationship to Other Provisions ....................................................... 8
2. Customary Basis of Article 8 ............................................................. 9
D. Appreciation ........................................................................................ 10

A. BACKGROUND

1. Introduction
Where a State representative, when performing an act relating to the con- 1
clusion of a treaty, ostensibly lacks the required authority (acting as falsus
procurator and/or ultra vires),1 the other State cannot, as for instance in Article
47 (q.v., N. 6), rely on bona des in order to implement the treaty.
For a rare example of State practice, see the incident in 1908 of the US Minister in
Romania who, without having had the authority to do so, signed two conventions.
With regard to the rst, the US Government had given him no authority at all; for the
second, he had obtained full powers by letting his Government understand that he was
to sign quite a dierent treaty.2

2. History
Article 6 of Waldock Report II set out the rst draft in 1963, distinguish- 2
ing between a representative who ostensibly did not possess any authority
to bind the State; and a representative who possessed ostensible authority to
bind the State, but had in fact been given instructions restricting particular
aspects of his authority.3 However, various members of the ILC considered

1
Statement by De Luna in the ILC, YBILC 1963 I 25, para. 49.
2
Hackworths Digest of International Law IV, 467, cited in Waldock Report II, YBILC
1963 II 46, para. 3. On the subject, see also A.P. Sereni, La reprsentation en droit inter-
national, RC 73 (1948 II) 73 .
3
YBILC 1963 II 46 f.
ZACHARIAS
150 article

the provision unnecessary, inter alia, as it concerned such a rare occurrence.4


In 1966 the ILC decided to divide the article into two parts. Para. 2 even-
tually became Article 47 (q.v., N. 2), while para. 1, the later Article 8, was
adopted unanimously.5 In Vienna, the provision was not called into question
apart from various amendments concerning textual changes.6 Article 47 was
adopted by 103 votes to none, with two abstentions.7

B. INTERPRETATION OF ARTICLE 8

3 Article 8 concerns an act relating to the conclusion of a treaty as in Articles


917 (q.v.). The provision does not deal with a States consent as such which
has indeed not been given.8 Article 8 is not limited to cases where States
become parties to a treaty by signature (Article 12, q.v.), since where ratica-
tion, acceptance or approval are still required, the State will have to conrm
the act (N. 6).
4 The act will have been performed by a person who cannot be considered
under Article 7 as authorised to represent a State for that purpose. Article 8
thus deals with the act of a person who was not duly authorised by the
Stateneither generally nor in respect of a particular treaty9as he was not
given the necessary powers to conclude a treaty.10 Such a person cannot be
considered a representative of the State.11 The reasons why the representative
acted in such a waypossibly through error or lack of zeal12are irrelevant
in this context.

4
E.g., statements in the ILC by Ago, YBILC 1963 I 23, para. 22; Tsuruoka, ibid. para. 18;
Briggs, YBILC 1966 I/2 12, para. 14, and ibid. 22, para. 4 (the Commissions tendency
to dot the Is unnecessarily). The main debate is at YBILC 1963 I 22 . Article 32 of the
ILC Draft 1963 is reproduced at YBILC 1963 II 193 f.
5
Article 8 was to be placed immediately after Article 7, as it did not concern a question of
invalidity; see Ago in the ILC, YBILC 1966 I/1 14, paras. 37 ; Tunkin, ibid. para. 46.
The provision was adopted at YBILC 1966 I/1 115, paras. 1 . Article 7 of the ILC Draft
1966 is reproduced at YBILC 1966 II 193 f.
6
OR 1968 CoW 79 , 188; OR 1969 Plenary 16 f, 159. The amendments are at OR
Documents 121 f.
7
OR 1969 Plenary 17, para. 66.
8
In Vienna in 1969 the US delegation unsuccessfully proposed an amendment to extend
the text to an act expressing the consent of a State to be bound by a treaty, OR Docu-
ments 121, subpara. 81(b). See also Yasseen in the ILC, YBILC 1966 I/1 14, para. 47;
the delegation of the Democratic Republic of Congo in Vienna, OR 1968 CoW 77,
para. 17.
9
Waldock Report II, YBILC 1963 II 46, para. 1.
10
Statement in Vienna by the Spanish delegation, OR 1968 CoW 76, para. 2; ILC Report
1966 II 194, para. 2.
11
Ago in the ILC, YBILC 1966/I 14 para. 37.
12
ILC Report 1963, YBILC 1963 II 193, para. 1.
ZACHARIAS
subsequent confirmation of an act 151

Where there is no authority to enter into a treaty, the act is not attributable 5
to the State and does not reect its consent.13 Thus, the State is in principle
entitled to disavow the act of its representative. However, the act does not
render the treaty invalid (as in Article 47, N. 67);14 rather, the treaty never
entered into force, it is simply without legal eect (but see N. 7).15
In the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia) (Preliminary Objections) Case, Yugoslavia
argued that the application before the Court was inadmissible as the person granting
the authorisation to initiate proceedings had done so in violation of domestic law.
The court rejected this objection on the basis of Article 7 (q.v., N. 15).16 In his diss.
op. Judge Kreca referred per analogiam in particular to the eects of Article 8, namely
that a measure taken by an ocial outside the sphere of competence of that ocial
is by denition a non-existent measure, a measure limited to the factual sphere as it is
devoid of legal eect.17

Whereas Article 7 explains positively in what circumstances a person may be 6


considered as representing a State, Article 8 concerns the negative situation
where authorisation is lacking.
In practice, as soon as this situation becomes known, the representatives State will
repudiate the treaty, pointing out the lack of authorisation (otherwise, it may well,
through its conduct, be conrming the treaty, N. 7). It is then up to the other nego-
tiating States to argue, e.g., that appearances were such that they could assume that
persons full powers within the meaning of Article 7. In this situation, Article 8 does
not provide for dispute settlement, as in Articles 6568 (q.v.) for disputes arising within
Part V of the Convention.

Of course, the treaty may afterwards be conrmed by that State (i.e., the 7
State whose representative acted without authorisation) by its competent
authority.18 Only then will the treaty enter into forcewith eect ex tunc.19
Two forms of conrmation are conceivable: (i) the State may formally ratify,
accept or approve the act;20 or (ii) where signature alone was required (N. 3),
the State in question may through its conduct, even tacitly, endorse its

13
ILC Report 1966, YBILC 1966 II 193, para. 1, and 194, para. 3.
14
But see the title in Aust, Modern Treaty Law 83 (Invalid Acts).
15
Ago in the ILC, YBILC 1966 I/1 14, para. 37.
16
ICJ Reports 1996 604, 621 f.
17
Ibid. 705, para. 39.
18
It is the State itself which determines the authority which is competent to perform a certain
act; see the statement in Vienna by the Chairman of the Drafting Committee, Yasseen,
OR 1969 Plenary 16 f, paras. 60 and 62; Angelet/Leidgens, Article 8, N. 11. Note that
the title of Article 8 suggests the rule rather than the exception.
19
See the cogent reasoning in Angelet/Leidgens, ibid. N. 13.
20
Waldock Report II, YBILC 1963 II 46, para. 2.
ZACHARIAS
152 article

consent to be bound by the treaty by evidencing the acceptance of the act,


for instance by publishing the treaty or implementing it.21

C. CONTEXT

1. Relationship to Other Provisions


8 Article 8, dealing with the case of the falsus procurator, can be distinguished
from Article 47 (q.v.) which concerns the situation where a representative
possessing ostensible authority to bind the State was in fact given instruc-
tions restricting particular aspects of his authority (N. 2). There is a ne line
between the two provisions: In Article 8 the treaty remains a priori without
eect (but see N. 7), whereas Article 47 envisages the continuing existence of
the treaty the invalidity of which can be invoked according to Articles 6568
(Article 47, N. 6).
The matter is clear if, one the one hand, the representative acted without authority (as in
Article 8) or, on the other, if there was authority but the representative did not comply
with express (limiting) instructions (as in Article 47). In between lies the situation where
an agent had authority to enter into a particular treaty, but went beyond his full powers
by accepting unauthorised extensions or modications of it. It is doubtful whether this
situations pertains to Article 8, as suggested by the ILC.22

2. Customary Basis of Article 8


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

D. APPRECIATION

10 In essence, Article 8 prevents an unauthorised agent from binding his State.23


This is a rare situation which probably needed to be spelled out in the Con-

21
Aust, Modern Treaty Law 83; ILC Report 1966, YBILC 1966 II 194, para. 3; the statement
in Vienna by Yasseen, OR 1969 16, para. 58. The Venezuelan amendment, proposing to
require express conrmation, was rejected; see OR Documents 121, subpara. 82(c); OR
1968 CoW 80, para. 52.
22
ILC Report 1963, YBILC 1963 II 46, para. 3.
23
Briggs in the ILC, YBILC 1963 I 22, para. 4; see also Castren, ibid. para. 20; Rosenne,
ibid. 23, para. 15.
ZACHARIAS
subsequent confirmation of an act 153

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

24
ILC Report 1966, YBILC 1966 II 194, para. 2.
ZACHARIAS
Article 9
Adoption of the text

1. The adoption of the text of a treaty takes place by the consent of all the
States participating in its drawing up except as provided in paragraph 2.
2. The adoption of the text of a treaty at an international conference takes
place by the vote of two-thirds of the States present and voting, unless
by the same majority they shall decide to apply a dierent rule.

Article 9 Adoption du texte

1. Ladoption du texte dun trait seectue par le consentement de tous les Etats
participant son laboration, sauf dans les cas prvus au paragraphe 2.
2. Ladoption du texte dun trait une confrence internationale seectue la
majorit des deux tiers des Etats prsents et votants, moins que ces Etats ne
dcident, la mme majorit, dappliquer une rgle dirente.

Artikel 9 Annehmen des Textes

1. Der Text eines Vertrags wird durch Zustimmung aller an seiner Abfassung
beteiligten Staaten angenommen, soweit Absatz 2 nichts anderes vorsieht.
2. Auf einer internationalen Konferenz wird der Text eines Vertrags mit den Stimmen
von zwei Dritteln der anwesenden und abstimmenden Staaten angenommen,
sofern sie nicht mit der gleichen Mehrheit die Anwendung einer anderen Regel
beschliessen.

ILC Draft 1966

Article 8Adoption of the text

1. The adoption of the text of a treaty takes place by the unanimous consent of the
States participating in its drawing up except as provided in paragraph 2.
adoption of the text 155

2. The adoption of the text of a treaty at an international conference takes place by


the vote of two-thirds of the States participating in the conference, unless by the
same majority they shall decide to apply a dierent rule.

Materials:

Waldock Report I: Article 5.


Minutes: YBILC 1962 I 77 , 199 , 204, 245, 269.
ILC Draft 1962: Article 6.
Waldock Report IV: Article 6.
Minutes: YBILC 1965 I 43 , 255.
ILC Draft 1965: Article 6.
Minutes: YBILC 1966 I/2 294, 325 f, 339 f.
ILC Draft 1966: Article 8.
Minutes: OR 1968 CoW 80 , 185, 213 , 252, 309, 476; OR 1969 Plenary 17 .

Vienna Conference Vote: 91:1:7

Selected Literature:

R. Casado Raign, Comentarios sobre la negociacin y la adopcin de los tratados bilaterales


y multilaterales restringidos, Anuario de derecho internacional 15 (1998) 757 ; M. Kamto,
Article 9, in: Corten/Klein (eds.) 260 ; K. Lewan, Which States Must be Bound Before
a Multilateral Treaty Enters into Force if Nothing is Specied? ZaRV 29 (1969) 536 ;
M. Limpert, Verfahren und Vlkerrecht. Vlkerrechtliche Probleme des Verfahrens von Kodi-
kationskonferenzen der Vereinten Nationen (1984); R. Sabel, Procedures at International
Conferences, 2nd ed. (2006); L.B. Sohn, Voting Procedures in United Nations Conferences
for the Codication of International Law, AJIL 69 (1975) 310 .

ZACHARIAS
156 article

CONTENTS
Paras.

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

A. BACKGROUND

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

1
ILC Report 1966, YBILC II 194; Waldock Report I, YBILC 1962 I 40, para. 6; Aust
Modern Treaty Law 84 f.
2
Waldock Report I, ibid. 41, para. 8. See UN GA Resolution 366 (IV) of 3 December
1949 establishing Rules for the calling of international conferences of States.
3
Verdross/Simma N. 700.
ZACHARIAS
adoption of the text 157

2. History
In 1959 the ILC adopted a rst article on the drawing up and method of 2
adoption of the text of a treaty.4 These provisions were taken over by Sir
Humphrey Waldock in his rst Report of 1962 which proposed a simple
majority for the adoption of a treaty text at a conference.5 The debate in
1962 centered on dierent types of multilateral treaties, on the majority for
their adoption and on the legal quality of the draft article.6 The resulting ILC
Draft 1962 proposed a two-thirds majority.7 Four States led observations
thereupon.8 After further debate in 1965 and 1966, the ILC prepared its nal
draft in 1966.9 The latter attracted various amendments at the 1968 Vienna
Conference concerning mainly the distinction between certain types of mul-
tilateral treaties.10 All amendments were referred to the Drafting Committee,
though none were included in the nal text.11 In 1969 a discussion arose in
Vienna as to which States constituted the two-thirds majority in para. 2:
the ILC Draft 1966 had suggested States participating in the conference,
whereas the Conference eventually limited the majority to States present
and voting (N. 11).12 Article 9 was adopted by 91 votes to one, with seven
abstentions.13

4
ILC Report 1959, YBILC 1959 II 98 (Article 6). For a detailed description of the draft-
ing history, see Sohn, AJIL 69 (1975) 318 .
5
Article 5 of Waldock Report I, YBILC 1962 II 39 ; see ibid. 40, para. 2.
6
For the debate, see YBILC 1962 I 77 , 199 , 204, 245, and 269; see, e.g., the statements
in the ILC by Waldock, ibid. 77, para. 4 ([t]he Commission would be out of touch with
current practice if some form of majority rule were not applied); and Lachs, ibid. 81,
para. 75 (excess of detail).
7
YBILC 1962 II 166 f.
8
Waldock Report IV, YBILC 1965 II 24 f; the Governments of Japan and Sweden con-
sidered the proposal redundant, whereas the US thought it served a useful purpose. For
Luxembourg, the only true rule was that of mutual agreement which applied equally to
multilateral treaties.
9
Reproduced at YBILC 1966 II 194 f (Article 8). The minutes are at YBILC 1965 I 43 .
255; and YBILC 1966 I/2 294, 325 f, and 339 f. The ILC Draft 1965 is at YBILC 1965
II 160 f (Article 6).
10
OR Documents 122; see in particular the amendments by Peru, France, then Czechoslovakia
and the then Ukrainian SSR.
11
The debate is reproduced at OR 1968 CoW 80 , 185, 213 , 252, 309, and 476. The
words unanimous consent in Article 8, para. 1 of the ILC Draft 1966 were shortened
to consent in todays Article 9, para. 1.
12
The debate is reproduced at OR 1969 Plenary 17 . The change was adopted by 73 votes
to 16, with ten abstentions, ibid. 23, para. 52.
13
Ibid. 23, para. 52.
ZACHARIAS
158 article

B. INTERPRETATION OF ARTICLE 9

1. Scope
3 The adoption of a treaty text is an important step in the treaty-making process
and a matter of substance.14 Signifying the end of the negotiations,15 it is the
formal act whereby form and content of a treaty are voted upon.16 Article 9
concerns the adoption of a treaty by States, even if the conference was con-
vened by an international organisation and conducted under its auspices; it
does not apply to treaties drawn up by and adopted within the international
organisation (Article 5, N. 6).17 The provision speaks of the adoption of the
text of a treaty, which includes voting on the individual provisions during
the conference and on the entire text at the end of the conference.18 Vot-
ing on procedural matters, which usually requires a simple majority, is not
covered by Article 9.19
4 At the stage of adoption, negotiating States are concerned solely with the
drawing up of the text of the treaty. Unless the circumstances suggest other-
wise, a vote cast upon adoption is not in any sense an expression of a States
expression to be bound by the text.20
Only exceptionally will States agree that the adoption of a treaty constitutes another
means of expressing consent to be bound by the treaty within the meaning of Article
11 (q.,v., N. 7).21 Further consequences of the adoption of the treaty may also be found
in Article 24, para. 4 (q.v., N. 1213), in particular as regards the authentication of its
text, the establishment of the consent of States to be bound by the treaty, the manner
or date of its entry into force, reservations, the functions of the depositary and other
matters arising necessarily before the entry into force of the treaty.

14
Waldock Report IV, YBILC 1965 II 24, para. 1.
15
See the denition of negotiating State in Article 2, subpara. 1(e) (q.v., N. 4042); accord-
ing to Article 2, subpara. 1(c) (q.v., N. 2930), full powers will authorise the person
representing a State at the conference to adopt the treaty.
16
Sinclair, Vienna Convention 33; Aust, Modern Treaty Law 84.
17
ILC Report 1966, YBILC 1966 II 195, para. 6; Aust, ibid. 70 f. See the judgment of the
European Court of Justice of 19 March 1996 in the case of Commission of the European
Communities v. Council of the European Union, Case C-25/94, ILR 113 (1999) 376 f,
N. 44, concerning the European Communitys membership in FAO.
18
See Article 36, para. 1 of the Rules of Procedure of the 1968/1969 Vienna Conference,
OR 1968 xxviii (N. 11).
19
Waldock Report IV, YBILC 1965 II 25, para. 3; Waldock Report I, YBILC 1962 II 40,
para. 7, n. 10 (the role of the simple majority vote for procedural decisions is universally
admitted, italics omitted ).
20
Waldock Report I, YBILC 1962 II 40, para. 3; ILC Report 1966, YBILC II 194, para.
1; Aust, Modern Treaty Law 84.
21
Aust, ibid. 84, 113 f.
ZACHARIAS
adoption of the text 159

States disagreeing with the text will refuse to vote. However, particularly in the case of
bilateral treaties and conferences with few States, this may prompt the other participants
to conduct further negotiations in order to overcome the objections to the text and to
obtain as many States parties to the treaty as possible.22 The same applies in the case
of objections by key States participating at multilateral conferences. Thus, there are
indirect connexions between a treatys adoption and States consent to be bound.

Article 9 provides dierent voting rules when adopting a treaty. It distinguishes 5


between treaties necessitating a unanimous vote (the lex generalis in para. 1,
N. 79) and those requiring a specic majority (the lex specialis in para. 2,
N. 1014). Para. 1 is the stricter of the two in that the majority mentioned
presupposes all the States participating in the drawing up of the treaty (N.
7), whereas para. 2 requires only two-thirds of the States present and voting
at the conference (N. 11).
Article 9 is residuary in three respects:23 (i ) para. 1 is subject to para. 2 (N. 6
1014); (ii) para. 2 authorises States to apply by a specic majority a dier-
ent voting majority (N. 14); and (iii) in respect of the entire article States
are generally free to decide unanimouslyexpressly or tacitly (i.e., also by
consensus, N. 13)to choose other solutions.

2. Unanimity as the General Rule (Para. 1)


Para. 1 provides that the adoption of a treaty takes place by the consent 7
of all the States. In particular, unanimity is required from the States par-
ticipating in its drawing up. (A State not content with this requirement
can withdraw from the negotiations, though other States may then wish to
overcome the objection and continue the negotiations, N. 4).24 While the
rule of unanimity in para. 1 is subject to any exception provided in para. 2
and shares the general residuary nature of Article 9 (N. 6), it remains relevant
in that it states the fundamental and traditional principle of the adoption of
treaties.25 The distinguishing element between paras. 1 and 2 is whether the
negotiations took place at an international conference (in which case the
two-thirds majority in para. 2 applies, N. 10) or not (in which case para. 1
requires unanimity).26

22
See the observation in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR
1968 CoW 83, para. 39; Sinclair, Vienna Convention 33.
23
See Waldock, ibid. para. 37 (complete freedom to States at conferences to x their own
voting rules) and para. 38 (general residuary rule for cases where the States concerned
had not agreed on a voting rule before the conference).
24
Sinclair, Vienna Convention 33.
25
ILC Report 1966, YBILC 1966 II 194, paras. 2 f.
26
On the various forms of negotiation, see N. 16.
ZACHARIAS
160 article

8 Bilateral treaties necessarily require unanimity for their adoption.27


If adoption is brought about through initialling of the text, this may also imply authen-
tication of the treaty text (Article 10, para. [b], N. 6.); a signature at this stage may even
imply consent to be bound (Article 12, q.v.).28
9 In practical terms, para. 1 plays a role in respect of treaties drawn up between
few States.29
Often, such treaties are negotiated for a specic purpose, e.g., their object and purpose
is such that the application of the treaty in its entirety between all the parties is an
essential condition of the consent of each one to be bound by the treaty, e.g., treaties
of economic integration.30

3. Specic Majorities (Para. 2)


10 Para. 2, mentioning specic majorities, concerns the adoption of the text of
a treaty at an international conference. This includes traditional law-mak-
ing conferences, whether under the auspices of an international organisation
or otherwise (N. 3). In fact, para. 2 implies any gathering of representatives
(Article 7, subpara. 2[c], N. 18) of more than two States at which a treaty is
negotiated.31 If the treaty negotiations are not conducted at a conference,
para. 1 applies (N. 7).
11 The adoption of a treaty text at an international conference takes place by
the vote of two-thirds of the States present and voting.32 Thus, absentees
and abstentions are not taken into account.33 Particularly at large conferences,
unanimity would appear impractical.34 Conversely, a simple majority would
not provide sucient protection to minority groups at the conference, for

27
See the statement by Amado in the ILC, YILC 1962 I 80, para. 62 (so evident that it did
not need to be stated).
28
Aust, Modern Treaty Law 85, refers here to the telescoping of the stages of treaty-
making.
29
Waldock Report I, YBILC 1962 II 40, para. 4.
30
Sinclair, Vienna Convention 34.
31
Aust, Modern Treaty Law 85 f. Thus, para. 2 does not dene the notion of an international
conference, ILC Report 1966, YBILC 1966 II 194, para. 4. See Jennings/Watts N. 598
at n. 2.
32
ILC Report 1966, YBILC 1966 II 194 f, paras. 4 f.
33
Aust, Modern Treaty Law 85 f. See the statement in Vienna by the Uruguayan delegation
according to which the rule in para. 2 would induce all States to be present and to take
an active part, OR 1969 Plenary 19, para. 12; also by the Mexican delegation, ibid. 17,
para. 72.
34
Sinclair, Vienna Convention 34 (not appropriate); Jennings/Watts N. 598.
ZACHARIAS
adoption of the text 161

the other States could adopt the treaty text and hence override the views of
what might be quite a substantial group of States at the conference.35
To give an example: Assume that 100 States participate at a conference. Of these, 86
are present when the vote on a particular treaty text takes place, though among them
20 abstain. Thus, 66 States will be voting either for or against the treaty text. Here,
a two-thirds majority of States present and voting as in para. 2 requires 44 States in
favour of the proposal. If the majority was calculated on the basis of all the States
participating (100) as in para. 1,36 it would require 67 votes, i.e., more than the 66
States which actually voted.
The Rules of Procedure prepared for the 1968/1969 Vienna Conference (History of the
Convention, N. 1419) provided in Rule 36, para. 1 of Chapter VI (Voting) for the
Required Majority: [d]ecisions of the Conference on all matters of substance shall
be taken by a two-thirds majority of the representatives present and voting.37

Para. 2 also applies to conferences attracting only fewas little as three 12


(N. 10)States which in practice may lead to diculties when applying
the two-thirds majority. In this situation, States should have no diculty in
agreeing to apply, for instance, the unanimity rule (N. 14).38
Voting methods at multilateral conferences have changed since the Vienna 13
Convention in 1969, and majorities are now often reached dierently.39 For
instance, since UNCLOS III the method of consensus (general agreement) is
frequently applied at international conferences,40 in particular where a formal
vote would otherwise lead to the rejection of a proposal or of the entire text.
However, it cannot be said that with consensus international practice has
again returned to the original voting method of unanimity in para. 1 (N.
36), since consensus is to be distinguished from unanimity.41 Interestingly,

35
ILC Report 1966, YBILC 1966 II 195, para. 5. See Vallat of the UK delegation in Vienna,
OR 1969 Plenary 22, para. 41 (the temporary absence of delegations from the venue of
the conference, or from the conference hall itself, the number of abstentionsall would
combine to create the most serious consequences with respect to the possible adoption of
the text).
36
As originally envisaged in the ILC Draft 1966 also for para. 2 (N. 2), YBILC 1966 II 194 f;
see Yasseen of the Drafting Committee in Vienna, OR 1969 Plenary 17, para. 67.
37
OR 1968 xxviii.
38
Waldock Report IV, YBILC 1965 25, para. 3; Sinclair, Vienna Convention 36 f.
39
Reuter, Introduction N. 105, speaks of countries relying on their numbers rather than
on their individual weight.
40
Verdross/Simma N. 700.
41
See Aust, Modern Treaty Law 86 on the structure and process of consensus; also
B. Buzan, Negotiating by Consensus: Developments in Technique at the United Nations
Conference on the Law of the Sea, AJIL 75 (1981) 323 ; R.D. Eustis, Procedures and
Techniques of Multinational Negotiation: The LOS III Model, Virginia Journal of Inter-
national Law 17 (1976/77) 217 ; L.B. Sohn, Rle et signication du consensus dans
llaboration du droit international, Annuaire IDI (1997) 13 .
ZACHARIAS
162 article

rules of procedure at conferences often envisage falling back on the two-thirds


majority if the search for consensus fails.
The UN Conference on the Establishment of an International Criminal Court of 1998
provided in Rule 34, para. 1 of its Rules of Procedure that [t]he Conference shall
make its best endeavours to ensure that the work of the Conference is accomplished
by general agreement. Rule 36 goes on to state that [s]ubject to rule 34, decisions of
the Conference on all matters of substance shall be taken by a two-thirds majority of
the representatives present and voting.42
As an example of the disadvantages of formal voting, Aust has referred to the confer-
ence which drew up the Vienna Convention on the Representation of States in their
Relations with International Organisations of a Universal Character of 1975. The con-
ference was a failure from the start because it was unacceptable to most states which
host international organisations and conferences.43

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

C. CONTEXT

1. Relationship to Other Provisions


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

42
A/CONF.138/2/Add.2 of 14 April 1998.
43
Modern Treaty Law 86.
44
Kamta, Article 9, N. 34, writes here: [l]a dernire partie du paragraphe 2 de larticle 9
prend ainsi tout son sens.
45
Ibid. 85 f.
46
ILC Report 1966, YBILC 1966 II 194 f, para. 5.
ZACHARIAS
adoption of the text 163

2. Matters Not Dealt With


Originally, the ILC wished to introduce a further provision on Negotiation 16
and Drawing up of a Treaty preceding adoption,47 though it was dropped in
view of its lack of legal quality.48 Article 9 has to some extent been overtaken
by voting methods such as consensus (general agreement, N. 13).

3. Customary Basis of Article 9


Without doubt, para. 1 of Article 9 reects a rule of customary law. The 17
situation is less clear in respect of para. 2. Some delegations in Vienna and
certain authors have regarded the provision as constituting lex ferenda.49 In
view of the comfortable majority by which States adopted Article 9 in Vienna
(N. 2) and the lack of any subsequent objections by States and courts, para.
2 may be considered as having hardened into customary law. New voting
methods such as consensus would not appear to call its customary nature
into question, since conference voting rules often fall back on the two-thirds
majority in para. 2 when consensus cannot be reached. Indeed, Article 9 is
precisely intended to serve as a residuary rule (N. 13).
The customary nature of para. 2 with its general binding force settles the diculty of
how to proceed at a conference where not all of the participating States have ratied
the Convention.50

47
Article 5 of the ILC Draft 1962 provided: [a] treaty is drawn up by a process of negotia-
tion which may take place either through the diplomatic or some other agreed channel,
or at meetings of representatives or at an international conference. In the case of treaties
negotiated under the auspices of an international organ, the treaty may be drawn up either
at an international conference or in some organ of the organisation itself , YBILC 1962
II 166; the provision was deleted at YBILC 1965 I 40 .
48
See the statement by Waldock in the ILC, YBILC 1962 I 86, para. 40 (more a statement
of fact than of law; [the provision] indicated merely how things were actually done).
49
See the statements at the Vienna Conference by the delegations of Iraq (Yasseen), OR
1968 CoW 82, para. 27 (progressive development); and Argentina (Ruda), ibid. para.
37; also Waldock Report IV, YBILC 1965 II 25, para. 3 (lex ferenda); Jennings/Watts
N. 598, n. 2 (probably . . . the development of a new rule); Sinclair, Vienna Conven-
tion 12 (clearly seems to involve progressive development); Malanczuk, Akehursts
Modern Introduction 131 (each conference adopts its own rules concerning voting
procedures . . . there is no general rule of customary law governing voting procedure).
Contra Aust, Modern Treaty Law 85 (formulated by the [ILC] and based on general
practice in the 1960s).
50
Dupuy, Droit international public N. 251.
ZACHARIAS
164 article

D. APPRECIATION

18 Article 9 constitutes one of a number of vestibules leading into the main


chambers of the Convention (among them, the various means of expressing
consent to be bound by a treaty as in Article 11, [q.v.]).51 Apart from restat-
ing a basic rule of international law in para. 1, para. 2 oers to conference
participants a useful voting tool, thereby sparing the conference lengthy pre-
liminary procedural debates.52 New voting methods developed more recently
would appear to conrm the residuary and exible nature of Article 9, rather
than implying its redundancy. The last part of para. 2, formally prescribing
the voting majority required to decide on a new voting majority, also allows
informal means of adoption (N. 14).53

51
Statement by Amado in the ILC, YBILC 1962 I 80, para. 61.
52
ILC Report 1966 II 195, para. 5; see the statement in Vienna by the Expert Consultant, Sir
Humphrey Waldock, OR 1968 CoW 83, para. 38 (convenient to have such a residuary
rule).
53
Jennings/Watts N. 598, n. 2, speak in this context of quasi-legislative overtones.
ZACHARIAS
Article 10
Authentication of the text

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

(a) by such procedure as may be provided for in the text or agreed upon
by the States participating in its drawing up; or
(b) failing such procedure, by the signature, signature ad referendum
or initialling by the representatives of those States of the text of the
treaty or of the Final Act of a conference incorporating the text.

Article 10 Authentication du texte

Le texte dun trait est arrt comme authentique et dnitif:

a) suivant la procdure tablie dans ce texte ou convenue par les Etats participant
llaboration du trait; ou,
b) dfaut dune telle procdure, par la signature, la signature ad referendum ou le
paraphe, par les reprsentants de ces Etats, du texte du trait ou de lacte nal
dune confrence dans lequel le texte est consign.

Artikel 10 Festlegung des authentischen Textes

Der Text eines Vertrags wird als authentisch und endgltig festgelegt,

a) nach dem Verfahren, das darin vorgesehen oder von den an seiner Abfassung
beteiligten Staaten vereinbart wurde, oder,
b) in Ermangelung eines solchen Verfahrens, durch Unterzeichnung, Unterzeich-
nung ad referendum oder Paraphierung des Vertragswortlauts oder einer den
Wortlaut enthaltenden Schlussakte einer Konferenz durch die Vertreter dieser
Staaten.

166 article

ILC Draft 1966

Article 9Authentication of the text

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

(a) By such procedure as may be provided for in the text or agreed upon by the
States participating in its drawing up; or
(b) Failing such procedure, by the signature, signature ad referendum or initialling
by the representatives of those States of the text of the treaty or of the Final Act
of a conference incorporating the text.

Materials:

Waldock Report I: Article 6.


Minutes: YBILC 1962 I 86 f, 202 f, 245 f, 269.
ILC Draft 1962: Article 7.
Waldock Report IV: Article 7.
Minutes: YBILC 1965 I 48 , 255 f.
ILC Draft 1965: Article 7.
Minutes: YBILC 1966 I/2 292, 294, 326, 340.
ILC Draft 1966: Article 9.
Minutes: OR 1968 CoW 83, 344; OR 1969 Plenary 23 f.

Vienna Conference Vote: 98:0:3

Selected Literature:

J.-M. Thouvenin, Article 10, in: Corten/Klein (eds.) 289 .

ZACHARIAS
authentication of the text 167

CONTENTS
Paras.

A. Background .......................................................................................... 1
1. Introduction ...................................................................................... 1
2. History .............................................................................................. 2
B. Interpretation of Article 10 .............................................................. 3
1. Scope ................................................................................................ 3
2. Authentication Agreed Upon (Para. [a]) ............................................ 5
3. Other Forms of Authentication (Para. [b]) ......................................... 6
C. Context ................................................................................................ 7
1. Relationship to Other Provisions ....................................................... 7
2. Customary Basis of Article 10 ............................................................ 8
D. Appreciation ......................................................................................... 9

A. BACKGROUND

1. Introduction
Signature has long been the accepted method of authenticating a text, even 1
though the Harvard Draft, for instance, did not refer to authentication
as such.1 With the evolution of new functions assigned to a signature, for
example, as a means of expressing consent to be bound by the treaty (Article
12, q.v.), and of new procedures such as incorporating unsigned texts into the
Final Act of a diplomatic conference, authentication has become a distinct
part of the treaty-making process whereby the denitive text of the treaty is
established.2

2. History
Brierly took up the matter in his rst Report in 1950, envisaging in particular 2
authentication by means of signature and incorporation in the Final Act of
the Conference.3 This was taken over by the ILC in 1959 and by Waldock
Report I in 1962.4 The ILC Draft 1962 attracted observations by three States,

1
AJIL 29 (1935) Supplement 466 .
2
ILC Report 1966, YBILC 1966 II 195, para. 2; Waldock Report I, YBILC 1962 II 42,
para. 5; Aust, Modern Treaty Law 89 f.
3
YBILC 1950 II 233 (Article 6).
4
YBILC 1959 II 102 (Article 9); and YBILC 1962 II 41 (Article 7).
ZACHARIAS
168 article

all questioning the necessity of a rule on the topic.5 In 1965 and 1966 the
ILC discussed the position of Article 10 within the draft, the relevance of
signature, and the dierence between adoption and authentication (N. 7).6
The ILC Draft 1966 remained unchanged (as one of only four articles of that
Draft)7 at the 1968/1969 Conference.8 Article 10 was adopted by 98 votes
to none, with three abstentions.9

B. INTERPRETATION OF ARTICLE 10

1. Scope
3 According to the opening words of Article 10, the purpose of authentication
of a treaty is to establish the text of a treaty as authentic and denitive.
Before States decide whether or not to express their consenteven provision-
allyto be bound by the treaty, they will wish to know what is the text of
the treaty and in particular those terms which have nally been settled and
are no longer open to change. Authentication is the process by which the
nal text is established, and consists of some act or procedure which certies
the text as correct and authentic.10 If the provisions of a treaty regulate the
authentication of a treaty, they will apply as from the time of the adoption
of its text (Article 24, para. 4, N. 11). The absence of an authenticated text

5
Waldock Report IV, YBILC 1965 II 25 f (observations by the Governments of Japan,
Sweden and the US). The ILC Draft 1962 is reproduced at YBILC 1962 II 167 (Article
7). The debate in the ILC in 1962 is at YBILC 1962 I 86 f, 202 f, 245 f, and 269.
6
The debate in 1965 is at YBILC 1965 I 48 , and 255 f, and in 1966 at YBILC 1966 I/2
292, 294, 326 and 340. The ILC Draft 1965 is reproduced in YBILC 1965 II 161 (Article
7). See the statements in the ILC, inter alia, by Amado, YBILC 1965 I 49, para. 83 (after
talks and negotiations, and after adoption of the text of a treaty, authentication was clearly
superuous before signature, which was an act of the greatest importance); and Rosenne,
ibid. 49 f, para. 94 (he was not certain what was the real dierence between the adoption
of the text of a treaty and authentication as a residuary step).
7
See also Articles 16, 32 and 34.
8
The ILC Draft 1966 is at YBILC 1966 II 195 (Article 9). The conference debate is at OR
1968 CoW 83, 344; and OR 1969 Plenary 23 f. In 1969 in Vienna the United Republic
of Tanzania unsuccessfully suggested reversing the order of paras. (a) and (b) in Article 10,
OR 1969 Plenary 23, para. 58, and 24, para. 59.
9
OR 1969 Plenary 24, para. 59.
10
Waldock Report I YBILC 1962 II 41, para. 2; ILC Report 1966, YBILC 1966 II 195,
para. 1; Ago in the ILC, YBILC 1965 I 52, para. 30; Aust, Modern Treaty Law 89 (point
of no return). Article 10 does not apply to the initialling of interim drafts by negotiators,
Sinclair, Vienna Convention 39.
ZACHARIAS
authentication of the text 169

does not prevent States from subsequently expressing in one form or another
their consent to be bound by the treaty.11
The text may be adopted in two or more language versions, but it is only the text or
texts which have been made authentic that constitute the treaty. The text may itself state
which language versions are to be considered authentic (Article 33, q.v.).12

Ne varietur. Once the treaty text has been authenticated, no further amend- 4
ments are possible. States are now called upon to decide whether or not to
express consent to be bound by the treaty. Any alteration would result in a
new text again requiring authentication.13
Even if authentication has few legal consequences as such, a States signature (N. 6)
excluding the conditional signature ad referendum14obliges a State to refrain from
acts which would defeat the object and purpose of a treaty (Article 18, N. 14).15

2. Authentication Agreed Upon (Para. [a])


Para. (a) provides that authentication of a treaty text may be established by 5
such procedure as may be provided for in the treaty or agreed upon by
the States participating in its drawing up.16 States may agree hereupon
formally or informally.

3. Other Forms of Authentication (Para. [b])


Failing the procedure in para. (a) (N. 5), para. (b) lists further acts which will 6
establish States authentication of the treaty text. Thus, States representatives
(Article 7, subpara. 2[c], N. 18) participating in the drawing up of the treaty
may authenticate the text of the treaty or the Final Act of a conference

11
See the Right of Passage over Indian Territory (India/Portugal) Case, ICJ Reports 1960 4 ;
referred to by Jennings/Watts N. 1223 at n. 4. In that case, the Court noted, ibid. 37,
the absence of any text accepted as authentic by both parties . . . [However], the validity
of a treaty concluded as long ago as the last quarter of the eighteenth century . . . should
not be judged upon the basis of practices and procedures which have since developed only
gradually.
12
Waldock Report IV, YBILC 1965 II 26, para. 1; ILC Report 1966, YBILC 1966 II 195,
para. 2; Rosenne, Developments 436.
13
Waldock Report I, YBILC 1962 II 41 f, para. 3; Waldock Report IV, YBILC 1965 II
26, para. 2 (pointing out a certain exibility in the case of bilateral treaties) Alternatively,
States wishing to join the treaty may append reservations to the treaty according to Articles
1923 (q.v.), Vedross/Simma N. 702. See also E.T. Swaine, Unsigning, Stanford LR 55
(2003) 2061 .
14
Statement in the ILC by de Luna, YBILC 1962 I 204, para. 4; see Article 12, N. 1523.
15
For Combacau, Droit international public 115, the obligations under Article 18 arise also
in the case of initialling.
16
ILC Report 1966, YBILC 1966 II 195, para. 3 (often . . . xed either in the text itself or
by agreement of the negotiating States).
ZACHARIAS
170 article

incorporating the text of the treaty by signing it, possibly ad referendum,


or by initialling the treaty text.17 These acts are dealt with in Article 12
(q.v., N. 1523). Article 10 diers from Article 12 in that here signature
and initialing have a distinct prima facie-function. They serve merely to
establish the authentication of the treaty text.18 In the context of Article 10,
signature and initialling do not express consent to be bound by the treaty,
except, of course, where this is otherwise established (Article 12, subpara. 1[b],
N. 910), e.g., in bilateral treaties and previously in multilateral treaties (N.
1), in which case authentication would be covered by the wider act of the
expression of the consent to be bound by the treaty.19 As a third variation,
where the treaty has already been authenticated and is subsequently subject
to ratication, signature will only have minimal eects.20
The Final Act is a formal statement of the proceedings of a diplomatic conference,
containing basic facts about the conference and appending various relevant docu-
ments, such as resolutions and interpretative statements.21 Thus, the Final Act of the
1968/1969 Vienna Conference (Final Act of the UN Conference on the Law of Treaties,
q.v.,) contains a summary description of the conference proceedings in Vienna in 1968
and 1969 (including participating States and international organisations) and refers to
the various declarations and resolutions adopted by the Conference and appended to
it (Article 85, N. 1).22

C. CONTEXT

1. Relationship to Other Provisions


7 The relationship between Article 10 and Articles 18 and 24 has been described
above (N. 34). Authentication within an international organisation is gov-
erned by Article 5 (q.v.).23 Adoption as in Article 9 (q.v.) precedes authentica-
tion, though the two acts may overlap, if they take place simultaneously.24
Whether or not a State has voted against the adoption of the treaty is irrelevant

17
Ibid.
18
Ibid. para. 2.
19
Waldock Report IV, YBILC 1965 II 26, para. 1 (authentication is implied from signature
or initialling); Waldock Report I, YBILC 1962 II 42, para. 5 ([t]he authenticating
aspect of signature is . . . masked by being merged in its consent aspect); Jennings/Watts
N. 598; Aust, Modern Treaty Law 81 f.
20
Waldock in the ILC, YBILC 1965 I 51, paras. 68; these eects derive in particular from
Article 18 (q.v.).
21
Aust, Modern Treaty Law 91 f.
22
OR Documents 283 .
23
ILC Report 1966, YBILC 1966 II 195, paras. 4 f.
24
Statement by Waldock in the ILC, YBILC 1966 I 294, para. 86 (that was particularly
true of small international conferences).
ZACHARIAS
authentication of the text 171

in the context of Article 10; the State is still entitled to authenticate the treaty
text.25 Article 33 (q.v.) concerns the interpretation of treaties authenticated
in two or more languages. Finally, Article 85 (q.v.) expresses itself on the
authentic texts of the Convention.

2. Customary Basis of Article 10


Even if Article 10 reects a comparatively new concept in international law,26 8
its meanwhile declaratory nature cannot be doubted.

D. APPRECIATION

Interpretation of Article 10 reveals more complexities than immediately meets 9


the eye, for instance, the dierent functions of signature (N. 6). In modern
treaty practice, authentication constitutes a distinct step in the treaty-making
procedure, thus warranting its mention in the Convention.

25
Waldock, ibid.
26
Sh. Rosenne, The Meaning of Authentic Text in Modern Treaty Law, in: R. Bernhardt
et al. (eds.), Vlkerrecht als Rechtsordnung. Internationale Gerichtsbarkeit. Menschen-
rechte, Festschrift fr H. Mosler (1983) 760.
ZACHARIAS
Article 11
Means of expressing consent to be bound by
a treaty

The consent of a State to be bound by a treaty may be expressed by


signature, exchange of instruments constituting a treaty, ratication,
acceptance, approval or accession, or by any other means if so agreed.

Article 11 Modes dexpression du consentement


tre li par un trait

Le consentement dun Etat tre li par un trait peut tre exprim par la signa-
ture, lchange dinstruments constituant un trait, la ratication, lacceptation,
lapprobation ou ladhsion, ou par tout autre moyen convenu.

Artikel 11 Arten der Zustimmung, durch einen


Vertrag gebunden zu sein

Die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, kann durch
Unterzeichnung, Austausch von Urkunden, die einen Vertrag bilden, Ratikation,
Annahme, Genehmigung oder Beitritt oder auf eine andere vereinbarte Art ausge-
drckt werden.

Materials:

Minutes: OR 1968 CoW 83 , 96, 344; OR 1969 Plenary 23 , 159.

Vienna Conference Vote: 100:0:3

Selected Literature (in addition to the literature mentioned in Articles 12, 13 and 15, q.v.):

F. de Assis Maciel Tavares, Raticao de tratados internacionais (2003); M. Fitzmaurice,


Consent to be BoundAnything New Under the Sun? Nordic JIL 74 (2005) 483 ; Id.,
Expression of Consent to be Bound by a Treaty as Developed in Certain Environmental
Treaties, in: J. Klabbers/R. Lefeber (eds.), Essays on the Law of Treaties. A Collection of
Essays in Honour of B. Vierdag (1998) 59 ; Id, Modications to the Principles of Consent
means of expressing consent to be bound by a treaty 173

in Relation to Certain Treaty Obligations, ARIEL 2 (1997) 275 ; M. Fitzmaurice/D.B.


Hollis, Why State Consent Still Matters: Non-State Actors, Treaties and the Changing
Sources of International Law, Berkeley JIL 23 (2005) 137 ; Sh. Rosenne, Consent and
Related Words in the Codied Law of Treaties, in: S. Bastid et al. (eds.), Mlanges oerts
Ch. Rousseau (1974) 229 ; S. Szurek, Article 11, in: Corten/Klein (eds.) 307 .

The basis of this commentary was prepared by Alison Wiebalck.

ZACHARIAS
174 article

CONTENTS
Paras.

A. Background ........................................................................................ 1
1. Introduction (see Articles 1215, N. 1)
2. History ............................................................................................ 1
B. Interpretation of Article 11 ............................................................ 2
1. Scope ............................................................................................... 2
2. Expression of Consent to be Bound ................................................. 4
3. Signature (see Article 12)
4. Exchange of Instruments (see Article 13)
5. Ratication, Acceptance, Approval or Accession
(see Articles 2, subpara. 1[b], 14 and 15)
6. Other Agreed Means ........................................................................ 7
C. Reservations ....................................................................................... 10
D. Context .............................................................................................. 11
1. Relationship to Other Provisions ..................................................... 11
2. Matters Not Dealt With .................................................................. 12
3. Customary Basis of Article 11 .......................................................... 13
E. Appreciation ....................................................................................... 14

A. BACKGROUND

1. Introduction
(see N. 1 in Articles 1215)

2. History
1 The nal ILC Draft 1966 made no specic reference to agreements in simpli-
ed form, included no residuary rule in favour of ratication or signature as
the means of expressing consent (Article 12, N. 2), nor stated any general rule
on the means of expressing consent to be bound.1 Renewed debate in Vienna
in 1968 on the question of a residuary rule in favour of either ratication or
signature again ran aground (Article 12, N. 3),2 although the majority took

1
ILC Report 1966, YBILC 1966 II 198, para. 7; Sinclair, Vienna Convention 329. On
the history, see Fitzmaurice, Expression of Consent 62 f.
2
Kearney/Dalton, AJIL 64 (1970) 508. For the debate, see OR 1968 CoW 85 , paras.
1 .
ZACHARIAS
means of expressing consent to be bound by a treaty 175

the view that the total absence of a general rule on consent to be bound
left the status of agreements in simplied form unclear. Poland and the US
jointly and Belgium separately introduced two amendments both of which
were referred to the Drafting Committee.3 As a result, a new Article 9bis was
proposed which passed largely unchanged through the Conference in 1968
and 1969 and was adopted, as Article 11, by 100 votes to none, with three
abstentions.4

B. INTERPRETATION OF ARTICLE 11

1. Scope
In most cases, the manner in which consent to be bound is expressed is stipu- 2
lated in the treaty itself, or the negotiating States agree among themselves. As
provided for by Article 11, the consent of a State to be bound by a treaty
(N. 46) may as a rule be expressed by such traditional means as signature
(Article 12, q.v.), the exchange of instruments constituting a treaty, (Article
13, q.v.) and ratication, acceptance, approval or accession (Articles 14
and 15, q.v.). Article 11 thus introduces Articles 1215 and in this respect
may be seen as having a residual, even supplementary character.5 However,
Articles 1215 do not exhaust the list of the means of expressing consent
to be bound.6 The wide scope aorded in the second part of Article 11 sub-
stantively and expressly provides that other means may also be employed if
so agreed (N. 79), thus opening the door for less conventional and more
simplied modes of expressing consent.7
Each of the means listed in Article 11 represents the formal expression of the 3
States will to be bound by the treaty. Only through the proper application of
the means agreed upon are the formal conditions of the validity of the treaty

3
Poland and the US proposed a new Article 9bis on [c]onsent to be bound by a treaty
stating: [t]he consent of a State to be bound by a treaty may be expressed by the signature,
exchange of instruments constituting a treaty, ratication, approval, acceptance or accession
or by any other means if so agreed, OR Documents 124, subpara. 104(a); see also OR 1968
CoW 83, para. 42. Belgium proposed a new Article 12bis on [o]ther means of expressing
consent to be bound by a treaty which stated: [i]n addition to the cases dealt with in
articles 10, 11 and 12, the consent of a State to be bound by a treaty may be expressed
by any other method agreed upon between the contracting States, OR Documents 124,
subpara. 104(b); OR 1968 CoW 96, para. 33.
4
OR 1969 Plenary 25, para. 74. Article 4bis was proposed at OR 1968 CoW 344,
para. 71.
5
Fitzmaurice, Expression of Consent 59.
6
Statement by the US delegate in Vienna, OR 1968 CoW 83, para. 43.
7
Fitzmaurice, Expression of Consent 63; Bolintineanu, AJIL 68 (1974) 673.
ZACHARIAS
176 article

complied with.8 As soon as consent to be bound has been established for all
the negotiating States (unless otherwise agreed upon), the treaty enters into
force (Article 24, paras. 1 and 2, N. 610).9
There is no hierarchy among the means mentioned in Article 11.10 Regardless of whether
the negotiating States choose formal, simplied or a combination of formal and simpli-
ed means of expressing consent to be bound, all are equally valid juridical acts.11

2. Expression of Consent to be Bound


4 The importance of the principle of free consent is emphasised in the third
preambular para. (Preamble, N. 10). Consent infers consensus, i.e., the concur-
rence of wills with a view to performing a contractual act.12 Unless and until
a State consents to be bound, a treaty cannot create rights and obligations
for that State (Article 34, q.v.). Hence, consent to be bound is the pivotal
act by which a State expresses its commitment to a treaty.13
The expression consent to be bound is essentially a synonym for signing, exchange of
instruments, ratifying, accepting, approving or acceding. The phrase is put into operation
in Articles 1116 (q.v.) which spell out when consent is present or can be inferred.
5 Prior to the expression of consent by a State to be bound, the relevant instru-
ment is a text; subsequent to an expression of consent to be bound, the
instrument becomes a treaty within the meaning of the Convention (compare
Article 12 with Articles 9 and 10). That expression of the will of States to be
bound must be duly communicated, e.g., to the other party for a bilateral
treaty or via the depository (Articles 76 and 77, q.v.) to the other parties in
the case of a multilateral treaty.14
6 Signature, ratication, exchange of instruments, etc., do not mean that the
State is bound to carry out the obligations of the treaty from that moment.
Rather, the State is consenting to be bound only upon entry into force (Article
24, q.v.).15 Until such time it has only expressed, i.e., communicated, its

8
Bolintineanu, AJIL 68 (1974) 673.
9
Aust, Modern Treaty Law 113; Fitzmaurice, Expression of Consent 59 ([t]he role of
the expression of consent by States to be bound by a treaty is to constitute a mechanism
by which the treaty becomes a juridical act).
10
Fitzmaurice, ibid. 60 (international law came to reject the concept of any one means
of expression of consent to be bound as being pre-eminent).
11
Bolintineanu, AJIL (1974) 673 f.
12
See the statement in Vienna by the delegation of Ecuador, OR 1968 CoW 95, para. 25.
13
Reuter, Introduction, N. 96 (the principle of consent is paramount in the law of
treaties).
14
See on this para. Rosenne, EPIL 4 (2000) 933.
15
Nevertheless, between consent to be bound and entry into force, a treaty may be applied
provisionally (Article 25, q.v.).
ZACHARIAS
means of expressing consent to be bound by a treaty 177

consent to be bound. Once a State has consented to be bound by the treaty,


it qualies as a contracting State within the meaning of Article 2, subpara.
1( f ) (q.v., N. 45).
Once consent has been given, the State is obliged to refrain from acts which would
defeat the object and purpose of the treaty prior to its entry into force provided such
entry into force is not unduly delayed (Article 18, subpara. [b], N. 17).

3. Signature
(see Article 12)

4. Exchange of Instruments
(see Article 13)

5. Ratication, Acceptance, Approval and Accession


(see Articles 2, subpara. 1(b), 14 and 15)

6. Other Agreed Means


In addition to the means in Articles 1215 (N. 2), Article 11 also refers to any 7
other means if so agreed. The notion of any other means is not explained
further and leaves it to the negotiating States to choose among themselves
how they wish to express consent to be bound by a treaty.16 Clearly, it is
intended to embrace treaties in simplied form.17 The formulation includes
consent to be bound by, for example, adoption of the treaty text (Article 9,
N. 4), notication, initialling (Article 10, N. 6), notice of a specied event,
or even a resolution.18 It thus serves to cover any other novel methods that
State practice might devise to express consent (N. 2).19 However, States
intentions can even be expressed orally or by any otheractive, tacit or
impliedconduct (e.g., performance of an obligation).20

16
Fitzmaurice, Expression of Consent 65 (the [Convention] left States absolutely free to
agree to any means they might choose).
17
For Reuter, Introduction N. 95 (addendum), the wording is quite convincing as to the
informal character of the procedure.
18
See on these examples the statements in Vienna by the delegations of the US, OR 1968
CoW 83, para. 43, and Poland, ibid. 84, para. 47; Aust Modern Treaty Law 90.
19
Statement by the Polish delegation, ibid. para. 48. For examples of other, novel means and
discussion thereof, see Fitzmaurice, Expression of Consent 59 ; Stanford, UTLJ 20
(1970) 33.
20
Reuter, Introduction N. 66 f, 89; Detter, Essays 26 f; Aust, Modern Treaty Law 113 f. See
Szurek, Article 11, N. 20 ([o]n pourrait . . . en thorie concevoir un engagement . . . exprim
oralement).
ZACHARIAS
178 article

Such other means may lie outside the scope of the Convention, which according to
Article 2, subpara. 2(a) (q.v., N. 15) is conned to written agreements, although they
do not thereby lose their legal force (Article 3, N. 3).

8 These techniques have no power of their own.21 Form and terminology are only
relevant insofar as they clarify the negotiating States consent to be bound
by a treaty and their intention to createby any other agreed meanslegal
rights and obligations among themselves.22 Such conduct must be unequivocal
and recognised as such between the parties in order to be so agreed. Thus,
the words if so agreed serve to limitand containthe wide variety of
means potentially encompassed by Article 11.23
9 Articles 1215 all provide that the agreement be established.24 By contrast,
Article 11 refers solely to any other means if so agreed without requiring
establishment of the agreement. It can be assumed that this is merely a stylistic
dierence or even an oversight: Articles 12, 14 and 15 were prepared by the
ILC whereas Article 11 was introduced at the Conference where no reference
was made to this dierence (N. 1).

C. RESERVATIONS

10 Costa Rica, Guatemala and Peru have led reservations excluding the applica-
tion of Article 11 insofar as the latter contradicts their respective constitutions.
Austria, Denmark, Finland, Germany and Sweden have raised objections to the
reservations made by Guatemala and Peru. In the meantime, Guatemala has
withdrawn its reservation (see Reservations and Declarations to the Convention
and Objections Thereto).

21
Reuter, ibid. N.93; also Weinstein, BYBIL 29 (1952) 225 (there is . . . no magic in
ratication).
22
Reuter ibid. N. 96; Fitzmaurice, Expression of Consent 63; Lauterpacht Report I,
YBILC 1953 II 27.
23
According to Fitzmaurice, ibid. 76, developments concerning means of consent to
be bound are blurring distinctions between examples of new means of an expression of
consent to be bound as provided for by Article 11 and acts analogous to law-making by
international organs. Caution, however, needs to be exercised before stretching the latter
part of Article 11 beyond its procedural treaty-making function: Article 11 reads (not:
any other means, but:) any other means if so agreed (italics added).
24
Article 12, subpara. 1(b) (q.v., N. 910), Article 13, para. (b) (q.v., N. 710), Article 14,
subpara. 1(b) (q.v., N. 9), and Article 15, para. (b) (q.v., N. 810).
ZACHARIAS
means of expressing consent to be bound by a treaty 179

D. CONTEXT

1. Relationship to Other Provisions


Consent to be bound may be impeached only through the application of the 11
Convention (Article 42, N. 89). For instance, in expressing its consent to
be bound by a treaty, violation of a negotiating States internal law is irrel-
evant except as provided for in Article 46 (q.v.). Article 7 determines who is
considered as representing a State for the purpose of expressing the consent
of the State to be bound by the treaty as set out in Articles 1115.

2. Matters Not Dealt With


Article 11 aords no details as to the scope of any other means (N. 7). 12

3. Customary Basis of Article 11


In its role as an introductory description of procedure (N. 2), Article 11 has 13
no normative (and a fortiori no customary) basis. Instead it must rely upon
the separate elements mentioned in the article. To the extent that the last part
of Article 11 substantively adduces other means of expressing consent to
be bound by a treaty, it may be assumed that this rule corresponds with, and
identies, one aspect of the freedom of consent which States enjoy by virtue
of their sovereignty in international law.25 Given that no objection was raised
at the Conference in Vienna, the last part of Article 11 appears to reect a
rule of customary international law.

E. APPRECIATION

Aust has described Article 11 as a good example of how the rules of the 14
Convention provide a certain framework, albeit one which is exible enough
to accommodate future developments in State practice (and overcome exist-
ing diculties, e.g., long delays resulting from the formalised procedures of
ratication).26 That same exibility helps facilitate wider participation in
the treaty-making activities of States. Tailor-made simplied treaty-making
procedures foster international cooperation and encourage States to enter

25
Fitzmaurice, Expression of Consent 59 (this freedom is rooted in the sovereignty of
States).
26
Aust, Modern Treaty Law 113. See also the statement in Vienna by Vallat of the UK
delegation, OR 1968 CoW 84, para. 52 (a useful link between the series of articles on
the modes of expressing consent and the articles immediately preceding them).
ZACHARIAS
180 article

into binding international agreements.27 In the nal analysis the reach of


Article 11in particular consent by other meanswill depend on and be
determined by State practice.

27
Lachs, Law of Treaties 102 f, 111.
ZACHARIAS
Article 12
Consent to be bound by a treaty expressed by
signature

1. The consent of a State to be bound by a treaty is expressed by the


signature of its representative when:

(a) the treaty provides that signature shall have that eect;
(b) it is otherwise established that the negotiating States were agreed
that signature should have that eect; or
(c) the intention of the State to give that eect to the signature appears
from the full powers of its representative or was expressed during the
negotiation.

2. For the purposes of paragraph 1:

(a) the initialling of a text constitutes a signature of the treaty when


it is established that the negotiating States so agreed;
(b) the signature ad referendum of a treaty by a representative, if con-
rmed by his State, constitutes a full signature of the treaty.

Article 12 Expression, par la signature, du consentement


tre li par un trait

1. Le consentement dun Etat tre li par un trait sexprime par la signature du


reprsentant de cet Etat:

a) lorsque le trait prvoit que la signature aura cet eet;


b) lorsquil est par ailleurs tabli que les Etats ayant particip la ngociation
taient convenus que la signature aurait cet eet; ou
c) lorsque lintention de lEtat de donner cet eet la signature ressort des pleins
pouvoirs de son reprsentant ou a t exprime au cours de la ngociation.
182 article

2. Aux ns du paragraphe 1:
a) le paraphe dun texte vaut signature du trait lorsquil est tabli que les Etats
ayant particip la ngociation en taient ainsi convenus;
b) la signature ad referendum dun trait par le reprsentant dun Etat, si elle
est conrme par ce dernier, vaut signature dnitive du trait.

Artikel 12 Zustimmung, durch einen Vertrag gebunden zu


sein, durch Unterzeichnung

1. Die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, wird durch
Unterzeichnung seitens seines Vertreters ausgedrckt,

a) wenn der Vertrag vorsieht, dass der Unterzeichnung diese Wirkung zukom-
men soll;
b) wenn anderweitig feststeht, dass die Verhandlungsstaaten der Unterzeichnung
einvernehmlich diese Wirkung beilegen wollten; oder
c) wenn die Absicht des Staates, der Unterzeichnung diese Wirkung beizulegen,
aus der Vollmacht seines Vertreters hervorgeht oder whrend der Verhandlung
zum Ausdruck gebracht wurde.

2. Im Sinne des Absatzes 1

a) gilt die Paraphierung des Textes als Unterzeichnung des Vertrags, wenn fest-
steht, dass die Verhandlungsstaaten dies vereinbart haben;
b) gilt die Unterzeichnung eines Vertrags ad referendum durch den Vertreter
eines Staates als unbedingte Vertragsunterzeichnung, wenn sie von dem Staat
besttigt wird.

ILC Draft 1966

Article 10Consent to be bound by a treaty expressed by signature

1. The consent of a state to be bound by a treaty is expressed by the signature of its


representative when:

(a) the treaty provides that signature shall have that eect;
(b) it is otherwise established that the negotiating states were agreed that signature
should have that eect;

ZACHARIAS
consent to be bound by a treaty expressed by signature 183

(c) the intention of the state in question to give that eect to the signature
appears from the full powers of its representative or was expressed during
the negotiation.

2. For the purposes of paragraph 1:

(a) the initialling of a text constitutes a signature of the treaty when it is estab-
lished that the negotiating states so agreed;
(b) the signature ad referendum of a treaty by a representative, if conrmed by
his state, constitutes a full signature of the treaty.

Materials:

WALDOCK Report I: Articles 8 f.


Minutes: YBILC 1962 I 87 , 204 f, 255, 270.
ILC Draft 1962: Articles 10 f.
WALDOCK Report IV: Articles 10 f.
Minutes: YBILC 1965 I 48 , 256 , 281.
ILC Draft 1965: Article 10.
Minutes: YBILC 1966 I/2 292, 326, 340.
ILC Draft 1966: Article 10.
Minutes: OR 1968 CoW 85 , 344 f; OR 1969 Plenary 25 f.

Vienna Conference Vote: 95:1:5

Selected Literature (in addition to the literature mentioned in Article 11, q.v.):

A. Bolintineanu, Expression of Consent to be Bound by a Treaty in the Light of the 1969


Vienna Convention, AJIL 68 (1974) 672 ; M.A. Fitzmaurice, Modications to the Prin-
ciples of Consent in Relation to Certain Treaty Obligations, Austrian RIEL 2 (1997) 275
; M. Frankowska, De la prtendue prsomption en faveur de la ratication, RGDIP 73
(1969) 78 ; Sh. Rosenne, Treaties, Conclusion and Entry into Force, EPIL 4 (2000) 932
; E. Swaine, Unsigning, Stanford LR 55 (2003) 2061 ; C. van Assche, Article 12, in:
Corten/Klein (eds.) 343 ; J. Viret, La signature des traits multilatraux, Annales de la
Facult de droit et de science politique (Universit de Clermont I) 15 (1978) 433 .

The basis of this commentary was prepared by Alison Wiebalck.

ZACHARIAS
184 article

CONTENTS
Paras.

A. Background ........................................................................................ 1
1. Introduction .................................................................................... 1
2. History ............................................................................................ 2
B. Interpretation of Article 12 ............................................................ 4
1. Scope .............................................................................................. 4
2. Consent to be Bound By Signature (Para. 1) .................................... 7
a) Introduction ............................................................................... 7
b) Prescribed by the Treaty (Subpara. 1[a]) ..................................... 8
c) Agreement Among Negotiating States (Subpara. 1[b]) ............... 9
d) Intention Transpiring From Full Powers or Expressed
During Negotiation (Subpara. 1[c]) ........................................... 11
3. Initialling and Signature ad referendum (Para. 2) .............................. 15
a) Introduction .............................................................................. 15
b) Initialling (Subpara. 2 [a]) .......................................................... 16
c) Signature ad referendum (Subpara. 2 [b]) .................................... 20
C. Reservations ....................................................................................... 24
D. Context .............................................................................................. 25
1. Relationship to Other Provisions ..................................................... 25
2. Matters Not Dealt With .................................................................. 26
3. Customary Basis of Article 12 .......................................................... 27
E. Appreciation ....................................................................................... 28

A. BACKGROUND

1. Introduction
1 The classical process of concluding treaties was by means of signature fol-
lowed by ratication.1 Treaty-making authority was vested in the Sovereign,
the plenipotentiary was regarded as the Sovereigns personal agent, and sig-
nature by that agent in possession of full powers meant acceptance of a treaty
which the Sovereign was bound to ratify.2 However, rulers became wary of
being obliged to ratify treaties signed by plenipotentiaries who had perhaps

1
Detter, Essays 18 f; the observation by Rosenne in the ILC, YBILC 1962 I 91, 48.
2
Provided the plenipotentiary had not exceeded his authority, Harvard Draft, AJIL 29 (1935)
Supplement 770. See also J.M. Jones, The Retroactive Eect of the Ratication of Treaties,
AJIL 29 (1935) 65; de Luna in the ILC, YBILC 1962 I 97, para. 22.
ZACHARIAS
consent to be bound by a treaty expressed by signature 185

interpreted their powers beyond what might have been intended. To over-
come this, signature was axed on the condition of future approval, and the
consent of the Sovereign to be bound was then sealed by ratication.3 In the
19th century the power to ratify treaties shifted to parliament which held
the discretionary power of nal approval of the treaty. Ratication as the means
of binding the State was the general presumption;4 signature an exception
operative when explicitly provided for in the treaty only.5 By the late 19th
century, under pressure from the need for more international co-operation
and given the exponential number of treaties on ever more diverse topics,6
raticationthat respectable institution of the previous century7became
increasingly awkward compared with other, simpler methods of expressing
consent. Power too began again to shift, this time from parliament to the
executive. In 1951 the Court held that even signature alone established a
provisional status between the signatories.8
McNair and the Harvard Draft took the view that ratication was required unless there
was a clearly expressed indication to the contrary.9 Fitzmaurice, on the other hand,
believed that there was no inherent necessity for ratication.10 Blix concluded that
treaties which failed to indicateeither expressly or impliedlythe parties intentions
as to the mode of entry into force, almost always entered into force by signature.11

2. History
The topic occupied the ILC for many years. It was dealt with by Lauter- 2
pacht Report I in 195312 (proposing a residuary rule in favour of ratication)
and Fitzmaurice Report I in 1956 (proposing a residuary rule in favour of
signature).13 In 1962 Waldock Report I covered procedural issues such as
the time and place of signature or initialling, and the status of initialling and
signature ad referendum in Article 8;14 and the dierent legal eects of signature,
including provision for cases where a treaty was not subject to ratication in

3
Detter, Essays 19; Malanczuk, Akehursts Modern Introduction 132.
4
Bolintineanu, AJIL 68 (1974) 674 f.
5
J.M. Jones, Full Powers and Ratication (1946) 12 ; Id., The Retroactive Eect of the
Ratication of Treaties, AJIL 29 (1935) 51 .
6
Statement in Vienna by the Polish delegation (Nahlik), OR 1968 CoW 86, para. 13.
7
Statement in Vienna by the Brazilian delegation, ibid., 88 para. 35.
8
Reservations to Genocide Advisory Opinion, ICJ Reports 1951 28. On the developments, see
Bolintineanu, AJIL 68 (1974) 675; H. Blix, The Requirement of Ratication, BYBIL
30 (1953) 352 , 359 f; Frankowska, RGDIP 73 (1969) 78.
9
Law of Treaties 133; and AJIL 29 (1935) Supplement 763 , respectively.
10
Sir G. Fitzmaurice, Do Treaties need Ratication? BYBIL 15 (1934) 129.
11
H. Blix, The Requirement of Ratication, BYBIL 30 (1953) 380.
12
YBILC 1953 II 109 f (Article 5).
13
YBILC 1956 II 113 f (Articles 28 ).
14
YBILC 1962 II 44 .
ZACHARIAS
186 article

Article 9.15 In the same year the ILC discussed the articles, twice referring
them to the Drafting Committeean indication of the complexity of the
matter.16 The ILC Draft 1962 covered signature in three separate articles:17
Article 7 on authentication (which eventually became todays Article 10,
q.v.), Article 10 on mere signature, initialling, and signature ad referendum,
and Article 11 on the legal eects of a full signature including a residuary
rule in favour of ratication. As this method was complicated and involved
a certain amount of repetition, the ILC decided to delete parts of the 1965
Article 10, incorporating the remainder in Article 11 which became Article
10 of the nal 1966 ILC Draft and Article 12 as it is today.18
3 In Vienna the question of a residuary rule in favour of signature or of ratica-
tion was again raised in a series of amendments. One proposal by States in
favour of signature as a residuary rule was withdrawn,19 the counter-proposal
in favour of ratication as a residuary rule was rejected after lengthy debates
in a roll call vote by 53 to 25 votes with 16 abstentions.20 Various other
amendments were either rejected or referred to the Drafting Committee.21
In Plenary, the Netherlands unsuccessfully requested a separate vote to delete
the words or was expressed during the negotiation at the end of subpara.
1(c) (N. 1114).22 Finally, Article 10 (now Article 12) was adoptedvirtu-

15
Ibid. 46 f.
16
See, for instance, the statements in the ILC by its Chairman Pal, YBILC 1962 I 88, para.
82; 99, para. 50; 100, para. 64; 204, para. 6; and 205, para. 24; and by Bartos, ibid. 93,
para. 70. For the text, see ibid. 255, paras. 4 and 6; 270, paras. 36 and 48 .
17
ILC Report 1962, YBILC 1962 II 169 . Governmentstheir submissions are summarised
in Waldock Report IV, YBILC 1965 II 34 were sharply divided on the direction which
the residuary rule should take, ibid. 38, para. 1.
18
ILC Report 1966, YBILC 1966 II 195 , and ibid., 196, paras. 1 f. The debate is repro-
duced at YBILC 1965 I 48 , 256 and 281; and YBILC 1966 I/2 292, 326 and 340.
19
By Sweden, then Czechoslovakia and Poland, OR Documents 125, subpara. 112(i).
20
By Bolivia, Chile, Colombia, Guatemala, Honduras, Mexico, Peru, Uruguay and Venezuela,
ibid., subpara. 112(ii)(b); OR 1968 CoW 94 f, para. 14. The amendment by Switzerland
proposing to add a new article 11bis to the residuary rule in favour of ratication, OR
Documents 125, subpara. 112(iii), was equally rejected.
21
E.g., by Bolivia, Chile, Colombia, Dominican Republic, Guatemala, Honduras, Mexico, Peru
and Venezuela, OR Documents 126, subpara. 119(i )(c), aiming at including a clear and
objective denition, by reference to internal law, of treaties for which ratication would
not be required; see the statement by the Chilean delegation in Vienna, OR 1968 CoW
92, para. 40; rejected by 60 to ten votes, with 16 abstentions, ibid. 93, para. 61. The
Spanish amendment, OR Documents 126, subpara. 119(i), proposing, inter alia, to sub-
stitute in subpara. 1(b) (N. 9) the words it is otherwise established with it is clear from
the circumstances that the negotiating States were agreed, was referred to the Drafting
Committee.
22
See the statement by the Dutch delegation, OR 1969 Plenary 25, para. 75; the amendment
was rejected by 54 votes to 26, with 19 abstentions, ibid. 26, para. 82. The Swiss delegation
requested a separate vote on subpara. 2(a), ibid. 25, para. 77; rejected by 74 votes to 15,
with twelve abstentions, ibid. 26, para. 84.
ZACHARIAS
consent to be bound by a treaty expressed by signature 187

ally unchanged from the ILC Draft 1966by 95 votes to one, with ve
abstentions.23
Together with Article 12 of the ILC Draft 1966 (todays Article 14, q.v.), Article 10
(todays Article 12) left the question of ratication open as a matter of the intention of
the negotiating States without recourse to a residuary rule.24

B. INTERPRETATION OF ARTICLE 12

1. Scope
Article 12 concerns the situation where the consent of a State to be bound 4
by a treaty is expressed by the signature of its representative (opening
sentence of para. 1). The expression consent to be bound by a treaty is dis-
cussed in Article 11 (q.v., N. 46); the notion of a representative is explained
in Article 7 (q.v., N. 4).
The Convention does not dene the term signature. It refers to the persons 5
name (not initials) or mark written in his or her own handwriting. Signature
of a treaty by a States representative is an act by which the State expresses
its interest in the treaty and its intention to become a party. Signature is not
a prerequisite for an agreement to constitute a treaty within the meaning of
Article 2, subpara. 1(a) (q.v., N. 1517), unless the treaty so provides.25
Particularly in view of the proliferation of less formal treaty-making procedures, States
may in practice attach considerable importance to signature. For instance, plenipoten-
tiaries are required to submit the text ne varietur (not to be altered) for approval before
signature may be authorised.26

Signature fulls two functions:27 (i) where signature is subject to ratica- 6


tion, acceptance or approval, it does not establish consent to be bound; it
simply qualies the signatory State to proceed to ratication. Here, signature
demonstrates the expression of a States genuine, albeit provisional, will to
be bound (signature subject to ratication). This function is dealt with in
Article 14 (q.v.); (ii) in contradistinction, the purpose of denitive signature
is to indicate the nal willingness of the State to be bound by the treaty. As its

23
Ibid. 26, para. 84.
24
ILC Report 1966, ibid. 198, para. 7. Malanczuk, Akehursts Modern Introduction 133
(neutral attitude); Kearney/Dalton, AJIL 64 (1970) 508.
25
Aust, Modern Treaty Law 24 f, with examples of unsigned agreements enjoying treaty
status.
26
Full powers to sign are generally issued at the end of negotiation, not before; see Hol-
loway, Modern Trends 45.
27
Note also the function of authentication (simple signature), dealt with in Article 10
(q.v., N. 6).
ZACHARIAS
188 article

titleconsent to be bound by a treaty expressed by signatureindicates,


Article 12 deals exclusively with this second function.
It is unusual for multilateral (and important bilateral) treaties to enter into force upon
signature. Once the negotiations are over and the treaty text agreed upon, such treaties
are concluded by signature subject to ratication or some other agreed means of con-
rmation, unless the treaty provides otherwise. Conversely, for many bilateral treaties,
signature is sucient to express the consent of the State to be bound provided that no
further parliamentary approval or new legislation is required. These treaties are brought
into force immediately or on some later xed date as agreed upon at the conclusion of
the negotiations.28

2. Consent to be Bound By Signature (Para. 1)

a) Introduction
7 Subparas. 1(a) and 1(b) deal with cases where a States denitive consent to be
bound by means of a signature has been recognised one way or another by an
agreement between the negotiating States (N. 810). Subpara. 1(c) provides
for unilateral means of consenting to be bound by signature (N. 1114).
The conjunction or at the end of subpara. 1(b) makes it clear that para. 1 does not
call for the fullment of all conditions laid down in subparas. (a)(c).29 In particular,
subpara. 1(b) is not a residual rule in relation to subpara. 1(c).30

b) Prescribed by the Treaty (Subpara. 1[a])


8 Of the various means of establishing consent to be bound by a treaty, sub-
para. 1(a) provides at the outset that the treaty may provide that signature
shall have that eect. The treaty may do so either expresslythis intention
is normally reected in the entry-into-force clause which may provide that
the treaty shall enter into force on the date of signature31or implicitly.32
In neither case is there any call for ratication of such a treaty.

c) Agreement Among Negotiating States (Subpara. 1[b])


9 The consent of a State to be bound by a treaty may furthermore be expressed
by the signature of its representative if it is otherwise established (i.e., other
than as provided for by the treaty itself, N. 8) that the negotiating States
were agreed that signature should have that eect. Negotiating States are
dened in Article 2, subpara. 1(e) as States which took part in the drawing
up and adoption of the text of the treaty (q.v., N. 4042).

28
See on this Aust, Modern Treaty Law 96 f, 437 f.
29
Yasseen as Chairman of the Drafting Committee in Vienna, ibid. 23, para. 57.
30
Statement by Ago in the ILC, YBILC 1965 I 257, para. 14.
31
For examples, see Blix, Treaty Makers Handbook 51 f.
32
Aust, Modern Treaty Law 97.
ZACHARIAS
consent to be bound by a treaty expressed by signature 189

Subpara. 1(b) deals with the situation in treaty practice where there is clear agreement,
usually by correspondence and before the negotiations begin, that representatives would
have the authority to give their signature full eect.33

The agreement in subpara. 1(b) may be reachedoutside the treaty 10


(N. 9)in writing, but also orally and even by tacitly implied conduct.
Whatever form of communication is adopted, it must be unequivocal.34 Fur-
thermore, Article 12 introduces an objective element in that it requires that
the agreement be established.35 Such establishment implies that, whenever a
State claims to have reached agreement by other means, it will be called upon
to demonstrate that another State or other States have also agreed that signature
should have the eect of expressing consent to be bound by a treaty.

d) Intention Transpiring From Full Powers or Expressed


During Negotiation (Subpara. 1[c])
The consent of a State to be bound by a treaty is expressed by the signature 11
of its representative if that intention appears from the full powers of its
representative (Article 7, q.v.).36 In the context of Article 12, full power refer
to the authority invested in the representative to express the consent of a State
to be bound by a treaty by signature alone.
The second part of subpara. 1(c) assumes that neither the treaty itself nor 12
the representatives full powers alone will provide for a States consent to be
bound by signature. It also envisages that the intention of the State to give
(in particular binding legal) eect to the signature may also be expressed
during the negotiation. The intention expressed during the negotiations
refers to the legal force of the signature to bind the State, not to consent to
be bound per se.
At the Conference, it was feared that a statement made during the negotiation could
be tantamount to an expression of consent to be bound. This fear appears unfounded.
Subpara. 1(c) refers to the intention to give that eect to the signature. Such a state-
ment would not be the equivalent of an expression of consent to be bound.37

33
Statement by Waldock in the ILC, YBILC 1965 I 257, para. 20.
34
ILC Report 1966, YBILC 1966 II 196, para. 3 (simply a question of demonstrating the
intention from the evidence); see Bolintineanu, AJIL 68 (1974) 683 ([w]hat is essential
in determining . . . consent to be bound . . . are not the circumstances of its conclusion but
the existence of an agreement to this eect between the negotiating states, irrespective of
whether it has been embodied in the text of the treaty).
35
See the statements in Vienna by the delegations of Venezuela, OR 1968 CoW 92, para.
43 (the subjective element of establishing the agreement of the negotiating States . . . was
very hard to evaluate); and South Africa, ibid. 93, para. 53.
36
See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR
1969 Plenary 26, para. 81.
37
See the statement in Vienna by the Dutch delegation, ibid. 92 f, para. 50; Bolintineanu,
AJIL 68 (1974) 685.
ZACHARIAS
190 article

13 A State can pronounce unilaterally that it intends to be bound by signature.


This is indicated by reference to the intention of the State as opposed to the
negotiating States were agreed (as in subpara. 1[b], N. 910).38
Other States are free to express their consent to be bound by other means, e.g., subject
to ratication.39 This is particularly important in multilateral treaty-making where,
depending on constitutional requirements, ratication is essential for some States but
not necessarily for others. Subpara. 1(c) (second part) accommodates States which might
be ready and able to express their consent to be bound by signature without ratication
and States for which ratication procedures are essential.40 Such cases are common and
were not anticipated to give rise to any diculties.41

14 The second part of subpara. 1(c) does not refer to just any statement made by
a representative, only to the intention of the State to give that eect to the
signature expressed during the negotiation.42 The intention to be bound does
not have to have been either formally manifested43 or even expressly stated.44
To have any meaning, however, that expression of intent would have to be
open; such intent would have to be made in statements of the representative
which, normally, would be recorded. This would enable other States to take
note of and rely upon this statement and the intention expressed therein.

3. Initialling and Signature ad referendum (Para. 2)

a) Introduction
15 Para. 2 provides for the expression of the denitive consent of a State to be
bound by equivalent alternative acts to signature, in particular initialling and
signature ad referendum. As a rule, neither of these terms express consent to
be bound (though they may establish the authentication of a treaty, Article
10, para. [b] [q.v., N. 6]). Exceptionally, however, according to para. 2 they
may constitute a signature expressing a States consent to be bound if it is

38
The point was one on which Governments had insisted strongly, Waldock in the ILC,
YBILC 1965 I 257, para. 21.
39
Statement by Ago in the ILC, ibid. para. 14.
40
ILC Report 1966, YBILC 1966 II 196, para. 3.
41
See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR
1969 Plenary 26, para. 81.
42
Statements in Vienna by Yasseen as Chairman of the Drafting Committee, ibid. 25, para.
78; the Dutch delegation, ibid. para. 75; and in the ILC by Amado, YBILC 1965 I 257,
para. 16.
43
As suggested by the Italian delegation in Vienna, OR 1968 CoW 91, para. 37. The pro-
posal was referred to the Drafting Committee, ibid. 93, para. 63 (not accepted, ibid. 345,
para. 74).
44
As proposed by the Belgium delegation, ibid. 91, para. 38; referred to the Drafting Com-
mittee, ibid. 93, para. 63 (not accepted, ibid. 345, para. 74).
ZACHARIAS
consent to be bound by a treaty expressed by signature 191

established that the negotiating States where so agreed (subpara. 2[a],


N. 1619), or if conrmed by the State (subpara. 2[b], N. 2023).45

b) Initialling (Subpara. 2 [a])


Initialling, i.e., the representative writes down the rst letters of his or her 16
rst and second names, regularly indicates agreement to the text, without
binding a State to its provisions (prima facie-initialling, Article 10, para.
[b], N. 6). However, initialling may also amount to a means of expressing
consent to be bound by the treaty. Indeed, in practice it is not infrequent for
a Head of State, Prime Minister or Foreign Minister to initial a text with the
intention that their initials are the equivalent of a full signature, especially
in treaties in simplied form such as agreed minutes.46
This last mentioned case is covered by subpara. 2(a) which provides that the 17
initialling of a text constitutes a signature of the treaty when it is estab-
lished that the negotiating States so agreed.
Whether or not initialling amounts to an expression of consent to be bound 18
depends on the intentions of the negotiating States, and in particular their
agreement when it is established (N. 10). The use of the initials as the
equivalent of full signature must be clearly indicated and understood and
accepted by the other States as such.47
If no such agreement is established, prima facie initialling is an act of authen- 19
tication only (Article 10, q.v.). In such a case, it is not possible to transform
initialling into full signature by (post-initialling-) conrmation. A signa-
ture subsequent to initialling has no retroactive eect; the State concerned
becomes a signatory only later on, i.e., from the date of the subsequent act
of signature.
This is conrmed by Article 8, subpara. 3(b) of Waldock Report I which stated:
[w]hen initialling is followed by the subsequent signature of the treaty, the date of the

45
In the ILC, it was doubted whether the matter merited separate provisions; see the state-
ments, e.g., by Briggs, YBILC 1965 I 51, para. 16; and by Ruda who suggested two
separate articles, ibid. 258, para. 24.
46
See the statement in the ILC by Tunkin, YBILC 1962 I 270, para. 38; contra Yasseen
who did not believe there was any such rule in positive international law, YBILC 1965
I 54, para. 59. See the ILC Report 1966, YBILC 1966 II 196, para. 4 ([the ILC] felt
that it would make the rule unduly complicated to draw a distinction between initialling
by a high minister of State and by other representatives, and considered that the question
whether initialling amounts to an expression of consent to be bound by the treaty should
be regarded simply as a question of the intentions of the negotiating States).
47
ILC Report 1966, ibid.; Waldock Report IV, YBILC 1965 II 35, para. 5; Holloway,
Modern Trends 35 f. Blix refers to the 1954 Memorandum of Understanding between the
Governments of Italy, UK, USA and the former Yugoslavia when initialling was expressly
given the most important binding eects, Treaty Making Power 73, n. 8.
ZACHARIAS
192 article

signature, not that of the initialling, shall be the date upon which the State concerned
shall become a signatory of the treaty.
In the case of a multilateral treaty drawn up by an international conference, the text
of the treaty is incorporated in the Final Act of the conference and then signed by all
the participants. This does not equal signature of the treaty nor consent to be bound:
signature of a Final Act is not denitive but equivalent to initialling.48

c) Signature ad referendum (Subpara. 2 [b])


20 Signature ad referendum has merely the eect of authenticating the text of
the treaty.49 It is employed during the negotiating process to indicate that
the agreement is agreed upon provisionally and subject to conrmation, in
particular pending nal approval by a governmental authority.50 It is indicated
by the signature of the representative followed immediately by the words ad
referendum or words to that eect.51
21 Thus, the signature ad referendum of a treaty by a representative, if con-
rmed by his or her State, constitutes a full signature of the treaty. If so
conrmed, the original signature will constitute the nal act by which a State
establishes its consent to be bound by the treaty.
22 The subsequent conrmation of the signature has no constitutive eect (as
opposed to the subsequent signature following initialling, N. 19), it renders
the State retroactively a full signatory as of the original date of the signature
ad referendum. However, States are always free to agree otherwise.52
This is conrmed by Article 10, subpara. 2(c) of the ILC Draft 1962 which provided:
[s]ignature ad referendum, when conrmed, shall have the same eect as if it had
been a full signature made on the date when, and at the place where, the signature ad
referendum was axed to the treaty.53

23 Unlike initialling (N. 18), a signature ad referendum cannot be agreed upon


between the negotiating States to constitute a full signature. The necessary act
of conrmation is a unilateral act of State: the signature becoming denitive
only once it has been conrmed by the competent State organ. Hence, con-
rmation of the signature ad referendum constituting consent to be bound,
transforms the document into an international agreement.54

48
Holloway, Modern Trends 37.
49
Statements in the ILC by Waldock, YBILC 1965 I 51, para. 9; and Tunkin, ibid. 53,
para. 41.
50
ILC Report 1966, YBILC 1966 II 196, para. 5.
51
Aust, Modern Treaty Law 98.
52
ILC Report 1966, YBILC 1966 II 196 f, para. 5.
53
ILC Report 1962, YBILC 1962 II 170; see also Article. 8 subpara. 2(c) of Waldock
Report I, ibid. 45, para. 3; the statement by Waldock in the ILC, YBILC 1965 I 51,
para. 9.
54
Holloway, Modern Trends 45.
ZACHARIAS
consent to be bound by a treaty expressed by signature 193

As the Waldock Report IV 1965 stated, [i]n the case of a treaty which is expressed to
come into force on signature, there does not appear to be any time-limit within which
a signature ad referendum may be conrmed. Consequently, signature ad referendum
may, as it is, be used to serve one purpose of raticationdelay to allow the completion
of constitutional procedures.55

C. RESERVATIONS

Costa Rica, Guatemala and Peru have filed reservations excluding the 24
application of Article 12 in so far as the latter contradicts their respective
constitutions. Austria, Denmark, Finland, Germany and Sweden have raised
objections to the reservations made by Guatemala and Peru. The Netherlands
has objected to the Peruvian reservation. In reply to the Austrian objection,
Peru has considered that that communication is without a legal eect as it has
not [been] submitted in a timely manner. In the meantime, Guatemala has
withdrawn its reservation (see Reservations and Declarations to the Convention
and Objections Thereto).

D. CONTEXT

1. Relationship to Other Provisions


The following relations with other provisions may be noted: 25

Article 10, para. (b) (q.v., N. 1523) relates to the role played by (and explains the
meanings of ) signature, signature ad referendum and initialling in respect of establishing
a text as authentic, whereas Article 12 deals with the diering legal eects of signature
establishing consent to be bound by a treaty (N. 1523).
Article 11 (q.v.) reiterates the means by which States may express consent to be bound
by a treaty.
Article 12 conrms and complements Article 11 (q.v.) which mentions signature as one
of the means of expressing consent to be bound by a treaty.
Where a State has expressed its consent to be bound as provided by the various means
mentioned in Article 12, then, pending the entry into force of the treaty, a State is
obliged to refrain from acts which would defeat the object and purpose of the treaty
unless such entry into force is unduly delayed (Article 18, q.v.).
As provided by Article 19 (q.v.), when signing a treaty a State may formulate a reserva-
tion. Although Article 19 does not specify which type of signature it is referring to,
the context employed, namely when signing, ratifying, accepting . . . suggests full or
denitive signature.

55
Waldock Report IV, YBILC 1965 II 35, para. 4.
ZACHARIAS
194 article

2. Matters Not Dealt With


26 Only the travaux prparatoires, not Article 12 itself, make clear the
eects in time of initialling and signature ad referendum (N. 19 and 22,
respectively).

3. Customary Basis of Article 12


27 The legal signicance of signature has experienced shifts in its relationship to
consent to be bound (N. 1) but appears rmly rooted in international custom-
ary law. Article 12, subpara. 1(a) reects an established rule of international
law. Subpara. 1(b) most likely codied existing law at the Conference in 1968
and 1969, though it contained an element of progressive development by
requiring an agreement (N. 10).56 Similarly, subpara. 1(c) and para. 2 con-
tained some innovatory details.57 On the whole, Article 12 would appear to
have developed into customary law.

E. APPRECIATION

28 The legal eects of a full signature are one of the essential questions of the law
of treaties.58 Article 12 reects the trend of new, accelerated and simplied
procedures of expressing consent in response to the requirements of rapidly
developing international co-operation.59 The Convention leaves States free to
choose between signature and ratication.60 In practical terms this reminds
those who draft treaties of the need to specify whether consent to be bound
is to be expressed by signature or ratication.61

56
Bolintineanu, AJIL 68 (1974) 684.
57
Ibid. 685.
58
See the statements in the ILC by Amado, YBILC 1962 I 98, para. 36; and in YBILC 1965
I 49, para. 83. Waldock Report IV referred to the ambiguities . . . surrounding the act of
signature, YBILC 1965 II 35, para. 4.
59
Bolintineanu, AJIL 68 (1974) 674.
60
See Bindschedler of the Swiss delegation in Vienna, OR 1968 CoW 85, para. 6 (cases
where the conditions under which a State consented to be bound by a treaty could not be
established, were very rare).
61
See the statement in Vienna by Sir Francis Vallat of the UK delegation, OR 1968 CoW
86 f, para. 19.
ZACHARIAS
Article 13
Consent to be bound by a treaty expressed
by an exchange of instruments constituting
a treaty

The consent of States to be bound by a treaty constituted by instruments


exchanged between them is expressed by that exchange when:

(a) the instruments provide that their exchange shall have that eect; or
(b) it is otherwise established that those States were agreed that the
exchange of instruments should have that eect.

Article 13 Expression, par lchange dinstruments constituant un trait,


du consentement tre li par un trait

Le consentement des Etats tre lis par un trait constitu par les instruments
changs entre eux sexprime par cet change:

a) lorsque les instruments prvoient que leur change aura cet eet; ou
b) lorsquil est par ailleurs tabli que ces Etats taient convenus que lchange des
instruments aurait cet eet.

Artikel 13 Zustimmung, durch einen Vertrag gebunden zu sein,


durch Austausch der einen Vertrag bildenden Urkunden

Die Zustimmung von Staaten, durch einen Vertrag gebunden zu sein, der durch
zwischen ihnen ausgetauschte Urkunden begrndet wird, ndet in diesem Austausch
ihren Ausdruck,

a) wenn die Urkunden vorsehen, dass ihrem Austausch diese Wirkung zukommen
soll, oder
b) wenn anderweitig feststeht, dass diese Staaten dem Austausch der Urkunden
einvernehmlich diese Wirkung beilegen wollten.

196 article

Materials:

Minutes: OR 1968 CoW 93 f, 345 ; OR 1969 Plenary 23 , 28, 159.

Vienna Conference Vote: 91:0:0

Selected Literature (in addition to the literature mentioned in Articles 11 and 12, q.v.):

F.S. Hamzeh, Agreements in Simplied FormModern Perspective, BYBIL 43 (1968/69)


179 ; R. Kolb, Note: Is an Obligation assumed by Two Dierent States in Two Dierent
Treaties Binding Between Them? NILR 51 (2004) 185 ; C. van Assche, Article 13, in:
Corten/Klein (eds.) 399 ; J. Wilmanns, Note, EPIL 3 (1997) 694 f; Id., Note Verbale,
ibid. 695.

The basis of this commentary was prepared by Alison Wiebalck.

ZACHARIAS
an exchange of instruments constituting a treaty 197

CONTENTS
Paras.

A. Background ........................................................................................ 1
1. Introduction .................................................................................... 1
2. History ............................................................................................ 2
B. Interpretation of Article 13 ............................................................ 3
1. Scope of Article 13 ........................................................................... 3
2. Exchange of Instruments .................................................................. 5
3. Paras. (a) and (b) .............................................................................. 9
C. Context .............................................................................................. 11
1. Relationship to Other Provisions ...................................................... 11
2. Customary Basis of Article 13 .......................................................... 12
D. Appreciation ....................................................................................... 13

A. BACKGROUND

1. Introduction
The method of concluding international agreements by means of an exchange 1
of instruments is not new.1 This manner of proceeding, already common
practice in the League of Nations,2 has increased considerably since and is
employed for a wide range of subjects.3 The exchange of notes is often resorted
to as the means of concluding intergovernmental and interdepartmental
agreements in addition to, or as a substitute for, the more traditional form
of treaties signed by or on behalf of Heads of States.4 The practice arose in

1
See J.L. Weinstein, Exchanges of Notes, BYBIL 29 (1952) 205 .
2
M. Brandon, Analysis of the Terms Treaty and International Agreement, AJIL 47
(1953) 60 at n. 39. In the Customs Rgime between Germany and Austria Advisory Opinion,
the Court declared that from the standpoint of the obligatory character of international
engagements, it is well known that such engagements may be taken in the form of treaties,
conventions, declarations, agreements, protocols or exchange of notes, PCIJ (1931) Series
A/B no. 41 47.
3
Aust, Modern Treaty Law 102. For instance, in the years 19201946, 24% of instruments
published in the LNTS, and between 19461951 30% of treaties registered with the UN,
were exchanges of notes, H. Blix, The Requirement of Ratication, BYBIL 30 (1953) 362.
For further statistics, see van Assche, Article 13, N. 6.
4
J.L. Weinstein, Exchanges of Notes, BYBIL 29 (1952) 214. Intergovernmental agreements
are agreements in simplied form usually concluded by the executive; see Hamzeh, BYBIL
43 (1968/69) 189; McNair, Law of Treaties 19 ([m]ost Exchanges of Notes . . . fall into the
ZACHARIAS
198 article

response to the need for speed and simplicity without any loss of legal eect
in expressing international commitments.5
The 1935 Harvard Draft on the Law of Treaties specically excluded the exchange of
notes from the scope of its use of the term treaty. However, it did so on the basis of
their peculiar form rather than their substance or legal eect.6

2. History
2 The text adopted by the ILC in 1962 contained one category for formal trea-
ties and another for treaties in simplied form which included exchange of
notes.7 However, in 1965 the Commission dropped the distinction between
formal and informal treaties (and thereby also mention of the exchange of
notes) on the ground that agreements in simplied form were internationally
as valid as formal treaties.8 Accordingly, the nal ILC Draft 1966 no longer
mentioned the exchange of notes.9 In 1968 in Vienna, Poland took up the
matter again and proposed the basis of todays Article 13.10 It was redrafted
by the Drafting Committee in order to take into account other articles relat-
ing to the expression of consent.11 In 1969 the article was adopted without
further changes by 91 votes to none.12

category of inter-governmental agreements). Interdepartmental agreements are concluded


between Government departments of dierent States, Jennings/Watts N. 582, 597.
5
Ibid.
6
Article 1, para. (b) of the Harvard Draft provided that [t]he term treaty does not include an
agreement eected by exchange of notes, AJIL 29 (1935) Supplement 657, and 698.
7
See, inter alia, Article 1, subpara. 1(b) of the ILC Report 1962 (treaty in simplied form
means a treaty concluded by exchange of notes, exchange of letters . . . or other instrument
concluded by any similar procedure), YBILC 1962 II 161 .
8
ILC Report 1965, YBILC 1965 II 13, para. 3; Hamzeh, BYBIL 43 (1968/69) 185 f.
9
See the statement in Vienna by Nahlik of the Polish delegation, OR 1968 CoW 93,
para. 65.
10
OR Documents 127, para. 127. Article 10bis on [c]onsent to be bound by a treaty
expressed by an exchange of instruments constituting a treaty stated: [t]he consent of
States to be bound by a treaty embodied in two or more related instruments is expressed
by the exchange of such instruments, unless the States in question otherwise agreed.
11
See the statement in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1968
CoW 345, para. 77. The Drafting Committee was at pains to avoid any presumption that
an exchange of instruments constituted a treaty, ibid. The debates are reproduced at OR
1968 CoW 93 f, and 345 ; and OR 1969 Plenary 23 , 28, and 159.
12
OR 1969 Plenary 27, para. 9. A Belgian amendment, aimed at replacing the words exchange
of instruments with exchange of letters or notes, was unsuccessful; see the statement by
the Belgian delegation, ibid. 24, para. 60; Yasseen, Chairman of the Drafting Committee,
ibid. 25, para. 71, and 159, para. 7.
ZACHARIAS
an exchange of instruments constituting a treaty 199

B. INTERPRETATION OF ARTICLE 13

1. Scope of Article 13
Article 13 provides that the consent of States to be bound by a treaty may 3
be constituted by instruments exchanged between them. The expression
consent to be bound by a treaty is discussed in Article 11 (q.v., N. 46).
Article 13 refers in the plural to the consent of States, whereas Articles 12 and 1417
(q.v.) relating to participation in a treaty refer in the singular to the consent of a State.
The dierence is attributable to the fact that Article 13 concerns an exchange of instru-
ments between at least two States.13 Interestingly, mention of exchange of instruments
in Article 11 (q.v.) refers in the singular to a State (most likely for reasons of style).

Article 13 is not a residual rule. Notes sent in the normal course of diplomatic 4
relations and notes in reply do not constitute treaties except as provided for
in Article 13 and dened in Article 2, subpara. 1(a) (q.v., N. 224). The
decisive factor is whether it is intended that the notes create legal rights and
obligations between the parties.14
The conjunction or at the end of para. (a) makes it clear that Article 13 does not call
for the fullment of all conditions laid down in paras. (a) and (b) (N. 910). In par-
ticular, para. (b) is not a residual rule in relation to para. (a) (see also Article 12, N. 7).
Where neither para. (a) nor para (b) have been satised, exchange does not constitute
consent to be bound.15

2. Exchange of Instruments
International law dictates neither the form nor the procedure for the conclu- 5
sion of international agreements; accordingly, there are no rules prescribing
the form of the exchange of instruments. Nevertheless, the instruments
must be related.16

13
Statements in Vienna by Rosenne of the Israeli delegation, OR 1968 CoW 345, para.
79; the Australian delegation, ibid. para. 80; and by Yasseen, Chairman of the Drafting
Committee, ibid. 346, para. 88.
14
Hamzeh, BYBIL 43 (1968/69) 186.
15
See the statement in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1968
CoW 345, para. 77.
16
Aegean Sea Continental Shelf (Greece/Turkey) Case, ICJ Reports 1978 39, para. 96 (in that
case a joint communiqu); McNair, Law of Treaties 4, 32; Weinstein, BYBIL 29 (1952)
209 f. In some cases the existence of a treaty may be inferred from a whole exchange of
correspondence, Reuter, Introduction N. 101.
ZACHARIAS
200 article

6 Instruments in the context of Article 13 are usually employed between two


parties.17 They may be a note, letter, telegram, message, correspondence,
communication, memorandum or an aide-mmoire signed or initialled, or
an unsigned note verbale, with or without a seal.18 The terminology has no
legal signicance, the terms being used interchangeably.19 In each case, the
instruments are written. Thus, while the term instruments appears formal,
particularly for notes verbales, it is in line with Article 2, subpara. 1(a) (q.v.,
N. 1517)20 encompassing every written type of international agreement
without regard to its designation.21 In addition, the term instruments (as
opposed to, e.g., letters or notes) aords the article broader scope embracing
a wide variety of situations in practice.
7 Typical for the exchange procedure is that the signatures do not appear
together on the one document, but on two separate notes. The initiating
note sets out the proposed agreement; and the reply acceptance.22 Each of
the parties has in their possession one note signed by the authorised repre-
sentative of the other party. In practice, the second note, usually the note in
response, will reproduce the text of the rst note. The agreement lies in the
exchange of both instruments.
The notes exchanged need not necessarily be signed, though they may be initialled by
the authorised ocial and have an ocial seal. Unsigned notes verbales, can cover an
equally wide range of topics and may even be subject to ratication.23 There is no legal
dierence between a note verbale and a signed formal note.24

8 Express provision may be made for the agreement to take eect immediately
or upon any date, act or event as agreed upon between the parties.25 In the
absence of an express provision, when the date of the notes is the same, then
that date will be decisive; when the dates are dierent, it is the date of the later

17
See Aust, Modern Treaty Law 102 f; Gore-Booth/Pakenham N. 29.38; Weinstein,
BYBIL 29 (1952) 207. In the Maritime Delimitation and Territorial Questions (Qatar/Bah-
rain) Case, ICJ Reports 1994 112, the Court had to consider the legal eect of a double
exchange of letters between Qatar and Saudi Arabia and between Bahrain and Saudi
Arabia.
18
Weinstein, ibid. 205 f, 215 n. 1; D.P. Myers, The Names and Scope of Treaties, AJIL 51
(1957) 574 at 59.
19
Jennings/Watts N. 586; Weinstein, ibid. 205.
20
Statement in Vienna by the US delegation, OR 1968 CoW 94, para. 2.
21
For Nahlik of the Polish delegation in Vienna, replacing exchange of instruments with
exchange of letters or notes [would] unduly restrict the articles scope, OR 1969 Plenary
24, para. 65.
22
See Gore-Booth/Pakenham N. 29.34.
23
See Weinstein, BYBIL 29 (1952) 206 f.
24
Wilmanns, EPIL 3 (1997) 695.
25
For example, if the exchange of letters forms part of a broader set of agreements constituting
a whole, then the agreement by exchange of letters only enters into force with the whole
set of agreements to which it belongs, Reuter, Introduction N. 101 (addendum).
ZACHARIAS
an exchange of instruments constituting a treaty 201

note which will count.26 Unless otherwise agreed upon between the parties,
there is no need for any subsequent approval.27 Nevertheless, the notes may
provide that the agreement constituted by the exchange of notes will not
enter into force until each party has fullled its constitutional requirements
and informed the other contracting party or parties thereto.28

3. Paras. (a) and (b)


According to para. (a)the rst of the two cases in Article 13 (N. 10)the 9
consent of States may be expressed by an exchange of instruments when
the instruments provide that their exchange shall have that eect. Here,
the parties delineate in advance in writing in the notes themselves that the
exchange shall constitute consent to be bound.29
In the second case, para. (b), it may be otherwise established that those 10
States were agreed that the exchange of instruments should have that eect.
The States executing the exchange of instruments30 reach an agreement orally
or in writing outside the treaty that the exchange shall constitute consent to
be bound. Establishment of the agreement introduces an objective element
(Article 12, N. 10).

C. CONTEXT

1. Relationship to Other Provisions


The relationship between Article 13 and Articles 2, subpara. 1(a) and 11 (q.v.) 11
has been indicated above (N. 58). The instruments referred to in Article 13
are to be distinguished from those of ratication provided for in Article 16
(q.v.): the procedure whereby exchange alone expresses consent is dierent
from the exchange of instruments of ratication which is the nal step in a
two-stage procedure.31

26
Weinstein, BYBIL 29 (1952) 209 f; Gore-Booth/Pakenham N. 29.36. See also van
Assche, Article 13, N. 60 .
27
Statement by Blix of the Swedish delegation, OR 1968 CoW 345, para. 81.
28
Aust, Modern Treaty Law 102.
29
For example: I have the honour to propose that this Note and your reply in that sense
shall constitute an Agreement between our two Governmentsto which the reply note
will read: your Excellencys Note and this reply shall constitute an Agreement, or words
to that eect; Aust, ibid. 445 f (italics omitted).
30
Yasseen, OR 1969 Plenary 159, para. 7.
31
Statement by Nahlik of the Polish delegation in Vienna, OR 1968 CoW 93, para. 65.
ZACHARIAS
202 article

2. Customary Basis of Article 13


12 Despite long-standing resort to exchange of notes in practice (N. 1), the ILC
appears to have been the rst to formulate rules on the topic. In 1968 and
1969 in Vienna this may possibly have implied progressive development,32
but given the unanimous support at the Conference and the lack of any
subsequent opposition, it can be assumed that today Article 13 is rmly
established in customary international law.

D. APPRECIATION

13 Article 13 conrms the practice of States to consent to be bound by a treaty


constituted by instruments exchanged for that purpose between them.
Together with Article 11 (q.v.), Article 13 has allowed simplied treaties to
enter through the back door.33 Indeed, the method expounded therein appears
as eminently plain as is it suited to its purpose.
Paras. (a) and (b) of Article 13 are suciently broad and exible to cover a variety of
possibilities of expressing consent to be bound by means of exchange of notes. Somewhat
cryptically, however, Jennings/Watts state that, in addition to Article 13, [c]onsent to
be bound by treaties constituted by an exchange of instruments may also be expressed
in other ways.34

32
As claimed by Jimnez de Archaga of the Uruguayan delegation in Vienna, OR 1968
CoW 93, para. 66.
33
Van Assche, Article 13, N. 3.
34
N. 601.
ZACHARIAS
Article 14
Consent to be bound by a treaty expressed by
ratication, acceptance or approval

1. The consent of a State to be bound by a treaty is expressed by ratica-


tion when:

(a) the treaty provides for such consent to be expressed by means of


ratication;
(b) it is otherwise established that the negotiating States were agreed
that ratication should be required;
(c) the representative of the State has signed the treaty subject to
ratication; or
(d) the intention of the State to sign the treaty subject to ratication
appears from the full powers of its representative or was expressed
during the negotiation.

2. The consent of a State to be bound by a treaty is expressed by accep-


tance or approval under conditions similar to those which apply to
ratication.

Article 14 Expression, par la ratication, lacceptation ou lapprobation,


du consentement tre li par un trait

1. Le consentement dun Etat tre li par un trait sexprime par la ratication:

a) lorsque le trait prvoit que ce consentement sexprime par la ratication;


b) lorsquil est par ailleurs tabli que les Etats ayant particip la ngociation
taient convenus que la ratication serait requise;
c) lorsque le reprsentant de cet Etat a sign le trait sous rserve de ratication;
ou
d) lorsque lintention de cet Etat de signer le trait sous rserve de ratication
ressort des pleins pouvoirs de son reprsentant ou a t exprime au cours de
la ngociation.
204 article

2. Le consentement dun Etat tre li par un trait sexprime par lacceptation


ou lapprobation dans des conditions analogues celles qui sappliquent la
ratication.

Artikel 14 Zustimmung, durch einen Vertrag gebunden zu sein,


durch Ratikation, Annahme oder Genehmigung

1. Die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, wird durch
Ratikation ausgedrckt,

a) wenn der Vertrag vorsieht, dass diese Zustimmung durch Ratikation ausge-
drckt wird;
b) wenn anderweitig feststeht, dass die Verhandlungsstaaten die Ratikation
einvernehmlich fr erforderlich hielten;
c) wenn der Vertreter des Staates den Vertrag unter Vorbehalt der Ratikation
unterzeichnet hat oder
d) wenn die Absicht des Staates, den Vertrag unter Vorbehalt der Ratikation zu
unterzeichnen, aus der Vollmacht seines Vertreters hervorgeht oder whrend
der Verhandlungen zum Ausdruck gebracht wurde.

2. Die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, wird durch
Annahme oder Genehmigung unter hnlichen Bedingungen ausgedrckt, wie
sie fr die Ratikation gelten.

ILC Draft 1966

Article 14Consent to be bound by a treaty expressed


by ratication, acceptance or approval

1. The consent of a State to be bound by a treaty is expressed by ratication


when:

(a) the treaty provides for such consent to be expressed by means of ratication;
(b) it is otherwise established that the negotiating States were agreed that ratica-
tion should be required;
(c) the representative of the State in question has signed the treaty subject to
ratication; or

ZACHARIAS
consent expressed by ratification, acceptance or approval 205

(d) the intention of the State in question to sign the treaty subject to ratication
appears from the full powers of its representative or was expressed during the
negotiation.

2. The consent of a State to be bound by a treaty is expressed by acceptance or


approval under conditions similar to those which apply to ratication.

Materials:

WALDOCK Report I: Articles 10 and 16.


Minutes: YBILC 1962 I 100 , 137 , 205 , 237, 255 f, 271 f, 276 f.
ILC Draft 1962: Articles 12 and 14.
WALDOCK Report IV: Articles 12 and 14.
Minutes: YBILC 1965 55 , 258 , 281 f.
ILC Draft 1965: Article 12.
Minutes: YBILC 1966 I/2 287, 292, 295, 326, 342.
ILC Draft 1966: Article 11.
Minutes: OR 1968 CoW 85 , 94 f, 360; OR 1969 Plenary 23, 26 f.

Vienna Conference Vote: 94:0:0

Selected Literature (in addition to the literature mentioned in Articles 11 and 12, q.v.):

R. Ben Achour/I. Frihka/M. Snoussi, Article 14, in: Corten/Klein (eds.) 465 .

The basis of this commentary was prepared by Alison Wiebalck.

ZACHARIAS
206 article

CONTENTS
Paras.

A. Background ........................................................................................ 1
1. Introduction .................................................................................... 1
2. History ............................................................................................ 2
B. Interpretation of Article 14 ............................................................ 3
1. Scope ............................................................................................... 3
2. Consent Prescribed by the Treaty (Subpara. 1[a]) ............................. 7
3. Consent Established by Agreement Among Negotiating States
(Subpara. 1[b]) ................................................................................. 8
4. Consent Expressed by Signature Subject to Ratication
(Subpara. 1[c]) ................................................................................. 10
5. Intention Transpiring From Full Powers
or Expressed During Negotiation (Subpara. 1[d]) ............................. 11
6. Consent Expressed by Acceptance or Approval (Para. 2) ................... 14
C. Context .............................................................................................. 17
1. Relationship to Other Provisions ...................................................... 17
2. Matters Not Dealt With ................................................................... 18
3. Customary Basis of Article 14 .......................................................... 19
D. Appreciation ....................................................................................... 20

A. BACKGROUND

1. Introduction
1 Through the application of the Roman private-law rule that the principal
was bound by his agent, a sovereign was bound by an agreement signed by
his representative unless the latter had exceeded his powers.1 Following the
shift in the late 18th century to parliamentary control over a States treaty-
making powers, ratication came to signify formal approval by a State of
the treaty itself as a separate step in the expression of a States consent to
bound.2 The general rule developed that ratication was necessary to render

1
Harvard Draft 1935, AJIL 29 (1935) Supplement 756 f. See on the subject also C. Nico-
poulos, Lacte de ratication et sa place dans la procdure diplomatique de la conclusion
des traits (1942); J. M. Jones, Full Powers and Ratication (1946); J. Freymond, La
ratication des traits et le problme des rapports entre le droit international et le droit
interne (1947); Wildhaber, Treaty-Making Power 9 .
2
ILC Report 1966, YBILC 1966 II 197, para. 2; Detter, Essays 18 f; Jones, ibid. 12 ,
74 ; Holloway, Modern Trends 40 , 72 f.
ZACHARIAS
consent expressed by ratification, acceptance or approval 207

a treaty legally binding.3 When States failed to stipulate how they wished to
express their consent to be bound by a treaty, traditional doctrine presumed
the need for ratication. However, as power shifted from parliament to the
executive, and as States became increasingly interdependent and resorted
more frequently to the use of less formal international agreements, the role
of ratication again evolved. Doctrine no longer saw an inherent necessity
in ratication (Article 12, N. 1).
Acceptance and approval emerged after 1945 as alternatives to ratication. They
responded to the need for more exible procedures to allow as many States as possible
to express their denitive consent to be bound by a treaty without violating their respec-
tive constitutional requirements.4

2. History
The topic occupied the ILC from 1953 onwards.5 In 1962 Waldock Report 2
I introduced Article 10 on treaties subject to ratication and Article 16 on
participation in a treaty by acceptance.6 In the ILC Draft 1962 these were
numbered Articles 12 and 14, respectively.7 Article 12, carefully balancing
the situations when a treaty was, or was not, subject to ratication, divided
Governments in their submissions to the ILC.8 In 1965, a single article was
proposed which avoided the doctrinal dispute about a residual rule in favour
of ratication.9 The revised text, now numbered Article 11, was adopted by 17
votes to none.10 In Vienna, various amendmentsaiming at a residuary rule

3
ILC Report 1966, ibid. See the Territorial Jurisdiction of the International Commission of
the River Oder Case (1929), Series A No 23, 20 (conventions, save in certain exceptional
cases, are binding only by virtue of their ratication); in the Ambatielos (Greece/United
Kingdom) (Preliminary Objection) Case, ICJ Reports 1952 43, the Court held that where
a treaty provided for ratication, the latter was an indispensable condition for bringing
that treaty into force.
4
Y.-L. Liang, The Use of the Term Acceptance in United Nations Treaty Practice, AJIL
44 (1950) 342 .
5
Lauterpacht Report I, YBILC 1953 II 112; Lauterpacht Report II, YBILC 1954 II
127; Fitzmaurice Report I, YBILC 1956 II 123.
6
YBILC 1962 II 48 .
7
YBILC 1962 II 171 . The debate in 1962 is reproduced at YBILC 1962 I 100 , 137 ,
205 , 237, 255 f, 271 f, and 276 f.
8
Waldock Report IV, YBILC 1965 II 36 , 38, para. 1.
9
YBILC 1965 I 258, para. 35. The debate in 1965 is at YBILC 1965 I 55 , 258 , and
281 f.
10
YBILC 1965 I 282, paras. 26. In 1966 the ILC debated the provision at YBILC 1966 I/2
287, 292, 295, 326, and 342. The ILC Draft 1966 is at YBILC 1966 II 197 .
ZACHARIAS
208 article

in favour of signature or of raticationwere raised and dismissed (Article


12, N. 3).11 Eventually, Article 14 was adopted by 94 votes to none.12
The ILC aimed at reconciling the emergence of diverse modern practices to express
consent to be bound by a treaty with the underlying issue of whether in international
law treaties required ratication for a State to be bound.13

B. INTERPRETATION OF ARTICLE 14

1. Scope
3 As its title indicates, Article 14 concerns the situation where a States consent
to be bound by a treaty is expressed by ratication, acceptance or approval.
The notion of consent to be bound by a treaty is discussed in Article 11
(q.v., N. 46); the terms ratication, acceptance and approval are dened in
Article 2, subpara. 2(b) (q.v., N. 26) as [meaning] the international act so
named whereby a State establishes on the international plane its consent to
be bound by a treaty.
4 The expression of consent to be bound by ratication, acceptance or approval
requires two steps: (i) the execution of an instrument of ratication, accep-
tance or approval by a duly authorised State representative expressing the
intent of the State to be bound by the relevant treaty; and (ii) according to
Article 16 (q.v.) the deposit (for multilateral treaties) or exchange (for bilateral
treaties) of the instruments of ratication, acceptance or approval or their
notication.14
5 The question whether or not a treaty requires ratication in order to establish
a States consent to be bound by the treaty depends on whether or not the
case falls within the provisions of Article 14, subparas. 1(a)(d) (N. 713). It
follows that, if the conditions in subparas. 1(a)(d) are not met, it is presumed
that ratication is not required.

11
Other amendments were submitted by Finland, OR Documents 127, subpara. 134(a),
seeking to improve the drafting; and Spain, ibid. subpara. 134(b), questioning: (i) the need
for a separate paragraph on acceptance and approval, given that they performed the same
function as ratication; and (ii) the requirement in subpara. 1(b) that the existence of an
agreement be established. Both amendments were referred to the Drafting Committee,
though neither was taken over. OR 1968 CoW 360, para. 90.
12
OR 1969 Plenary 26 f, para. 3. The debate is at OR 1968 CoW 85 , 94 f, and 360; and
OR 1969 Plenary 23, and 26 f.
13
See the statements in the ILC b y Tunkin, ILC, YBILC 1965 I 61, para. 53; and Waldock,
ibid. 73, para. 10; the ILC Report 1966, YBILC 1966 II 197, para. 4 (a largely theoretical
controversy).
14
UN Final Clauses of Multilateral Treaties Handbook (2003), 42.
ZACHARIAS
consent expressed by ratification, acceptance or approval 209

Subparas. 1(a) and (b) (N. 79) both refer to an understanding between 6
the States concerned. Subparas. 1(c) and (d) (N. 1013) refer to unilateral
expressions of intent by individual negotiating States.15
The conjunction or at the end of subpara. 1(c) makes it clear that para. 1 does not
call for the fullment of all conditions laid down in subparas. (a)(d)16 In particular,
subpara. 1(b) is not a residual rule in relation to subparas. 1(c) or (d). (see also Article
12, N. 7).

2. Consent Prescribed by the Treaty (Subpara. 1[a])


According to subpara. 1(a), the consent of a State to be bound may be 7
expressed by ratication when the treaty itself provides for such consent to
be expressed by means of ratication. More formal types of international
agreement regularly include express provision for ratication (e.g., Article
110, para. 1 of the UN Charter and Article 82 [q.v.] of the Convention
itself ). Informal instruments, e.g., exchanges of notes, can equally stipulate
the need for ratication.17 Ratication usually follows signature although the
latter is not a necessary condition. If the treaty provides for consent to be
expressed by ratication, it is not necessary for a representative to sign the
treaty subject to ratication.18

3. Consent Established by Agreement Among Negotiating States


(Subpara. 1[b])
The agreement between the negotiating States to express their consent to 8
be bound by ratication need not necessarily be recorded in the text of the
treaty (as in N. 7). As provided by subpara. 1(b), the consent of a State to
be bound by a treaty can also be expressed by ratication if it is otherwise
established that the negotiating States were agreed that ratication should
be required. Negotiating States are dened in Article 2, subpara. 1(e) (q.v.,
N. 4042) as States which took part in the drawing up and adoption of the
text of the treaty.
The notion of agreement introduces an objective element in establishing the 9
intention of the negotiating States. However, subpara. 1(b) does not state how

15
ILC Report 1966, YBILC 1966 II 198, para. 8.
16
See the statement in Vienna by Yasseen as Chairman of the Drafting Committee, ibid.
23, para. 57.
17
ILC Report 1966, YBILC 1966 II 197, para. 4.
18
Aust, Modern Treaty Law 105.
ZACHARIAS
210 article

the agreement is to be established.19 Certainly it may be in writing,20 but also


oral and even tacit agreements are conceivable, evidenced, for instance, in the
travaux prparatoires.21 Whatever form of communication is adopted, it must
be unequivocal (Article 12, N. 10).22 Simple inference from the intention of
the States is insucient.23

4. Consent Expressed by Signature Subject to Ratication


(Subpara. 1[c])
10 The consent of a State to be bound by a treaty is furthermore expressed by
ratication when the representative of the State has signed the treaty subject
to ratication (subpara. 1[c]). In this case, the States consent to be bound
will not be eective until ratication.24
Accordingly, some States may express their consent to be bound by the treaty by ratica-
tion, others by signature alone (depending on their respective constitutional require-
ments).25 Thus, subpara. 1(c) protects those States for which ratication is necessary,
even when at variance with what is or will be stipulated in the treaty.26

5. Intention Transpiring From Full Powers or Expressed During


Negotiation (Subpara. 1[d])
11 The rst part of subpara. 1(d) provides that the consent of a State to be bound
by a treaty is expressed by ratication when the intention of the State to
sign the treaty subject to ratication appears from the full powers of its
representative. A clause may be inserted in the instrument of full powers
(Article 7, N. 89) produced by the representative entitling him (solely) to
sign the treaty subject to ratication.

19
Bolintineanu, AJIL 68 (1974) 683.
20
Either in the treaty itself or in a collateral agreement, ILC Report 1966, YBILC 1966 II
198, para. 8.
21
Aust, Modern Treaty Law 104.
22
Reuter, Introduction N. 95. The words is otherwise established were adopted in prefer-
ence to the less specic it appears from the circumstances; see the Spanish delegation in
Vienna, OR 1968 CoW 92, para. 41.
23
See the statement in Vienna by the Italian delegation, ibid. 91, para. 37 (wise to introduce
the idea of formal manifestation of intention during negotiations); and the Venezuelan
delegation, ibid. CoW 92, para. 43.
24
Jennings/Watts, N. 600.
25
E.g., Article 43, para. 3 of the UN Charter ([t]he agreement or agreements . . . shall be
subject to ratication by the signatory states in accordance with their respective constitutional
processes) (italics added ).
26
Bolintineanu, AJIL 68 (1974) 684. See the observations by the Danish Government to
the ILC, Waldock Report IV, YBILC 1965 II 37 (the question whether or not ratica-
tion is required should not necessarily be answered in the same way with respect to both
parties).
ZACHARIAS
consent expressed by ratification, acceptance or approval 211

Thus, even where a treaty provides that it will enter into force upon signature, 12
for the other negotiating State or States a signature so expressed to be subject
to ratication amounts to a conditional signature only, i.e., the consent of
the State to be bound will operate as from the date of ratication.27 In such
cases, the provisions of the full powers replace for the State which has issued
them the relevant clauses of the treaty.28
The intention appearing from the full powers to sign subject to ratication must have
been brought to the notice of the other State or States. Subpara. 1(d) underlines the
importance of ascertaining the intention of the other party or parties regarding the
method of expressing consent to be bound.

The second part of subpara. 1(d) provides that the intention of the State to 13
sign subject to ratication need not necessarily appear from the full powers of
its representative, but may be expressed during the negotiation. The position
of the other negotiating State or States is safeguarded since the intention to
sign subject to ratication must have been brought to their notice.29

6. Consent Expressed by Acceptance or Approval (Para. 2)


According to para. 2, the consent of a State to be bound by a treaty may 14
also be expressed by acceptance or approval. Ratication, acceptance and
approval all have the same legal eect. States are free as to what terms they
employ; it is a matter of terminology rather than substance. Nevertheless,
they are distinct procedures and may even appear together with ratication
and accession in the same treaty.30
Acceptance and approval may be expressed under conditions similar to those 15
that apply to ratication. This formulation appears imprecise and should
be read as meaning that para. 1 applies mutatis mutandis to para. 2.31 These
broad terms aim at giving States the choice between ratication, acceptance
and approval in order to obtain the consent of the largest possible number
of States to be bound by the treaty.32

27
Aust, Modern Treaty Law 104. On the eective date of a signature ad referendum, see
Article 12, N. 2023.
28
Bolintineanu, AJIL 68 (1974) 685.
29
ILC Report 1966, YBILC 1966 II 198, para. 8. In Vienna, Zemanek of the Austrian
delegation doubted whether the phrase . . . served any purpose, OR 1968 CoW 92,
para. 47.
30
ILC Report 1966, ibid. para. 10; see the statements in the ILC by Rosenne, YBILC 1965
I 75, para. 37; Waldock, ibid. 76, para. 48; and its Chairman, Bartos, ibid., para. 38
(no less valid than the term ratication); Waldock IV, YBILC 1965 II 41, para. 1.
31
ILC Report 1966, ibid. para. 12.
32
Statement by Waldock in the ILC, YBILC 1965 I 76 f, para. 55, and 259, para. 38.
ZACHARIAS
212 article

16 Paras. 1 and 2 thus accommodate both those negotiating States which are
required by their constitutional law to ratify a treaty as well as those satised
with acceptance or approval.
On the national plane acceptance and approval are simplied forms of ratication
allowing the Government the opportunity to examine the treaty before consenting to
be bound without being obliged to submit the text to parliamentary scrutiny. Avoidance
of the more formal terms ratication and accession permit States to become bound
by simpler procedures. On the international plane, acceptance and approval amount
to a denitive declaration by a State expressing its will to be bound by a treaty (Article
2, subpara. 1[b], N. 26).

C. CONTEXT

1. Relationship to Other Provisions


17 The following relations with other provisions may be noted:
Article 2, subpara. 1(b) (q.v., N. 26) outlines the use of the terms ratication, acceptance
and approval.
Ratication, acceptance and approval are three of the means by which a State may
express its consent to be bound by a treaty according to Article 11 (q.v.).
Together with Article 12 (q.v, N. 3), Article 14 leaves the question of ratication open
as a matter of the intention of the negotiating States without recourse to a residuary
rule (N. 5).
According to Article 16, paras. (a)(c) (q.v., N. 57), unless the treaty otherwise provides,
ratication, acceptance and approval have no eect internationally if the instruments
concerned are not exchanged, deposited or notied (N. 4).
According to Article 82 (q.v.), the Convention itself is subject to ratication (N. 7), but
not to either acceptance or approval.

2. Matters Not Dealt With


18 As pointed out (N. 5, 11), Article 14 leaves the question of ratication open
as a matter of the intention of the negotiating States without recourse to a
residuary rule.

3. Customary Basis of Article 14


19 Indubitably, the principle of ratication is a general norm of international
law reected in existing practice and codied in Article 14.33 Insofar as

33
Statements in Vienna by the Uruguayan delegation, OR 1968 CoW 86, para. 12; and in
the ILC by Waldock, YBILC 1965 I 76 f, para. 55; Delbrck/Wolfrum III 555 (ganz
berwiegend gefestigt).
ZACHARIAS
consent expressed by ratification, acceptance or approval 213

subpara. 1(b) (N. 89) requires an agreement and subpara. 1(d) (N. 1113)
postulates that the intention . . . was expressed during negotiation, Article
14 introduced in Vienna in 1968 some innovatory details which have since
most likely hardened into customary law.34

D. APPRECIATION

The ILC succeeded in arming the signicance of raticationas perceived 20


by a number of Stateswhilst simultaneously accommodating new and
more streamlined means of expressing consent to be bound. To this end, the
emphasis in Article 14 is laid on the dynamics of international law, namely
the intention of States to seek mutually acceptable arrangements in forms
adapted to individual requirements.35 In practice, it is for the States themselves
to determine whether or not ratication, acceptance or approval are necessary.
Article 14 facilitates the need for clarity and precision in entering treaty com-
mitments in the interests of clearer reciprocal international expectations.

34
Bolintineanu, AJIL 68 (1974) 684 f.
35
ILC Report 1966, YBILC 1966 II 198, para. 8; Lachs, YBILC 1965 I 259, para. 44;
M. Lachs, Some Reections on Substance and Form in International Law, in: W.G.
Friedmann/L. Henkin/O.J. Lissitzyn (eds.), Transnational Law in a Changing Society.
Essays in Honour of Ph. Jessup (1972) 111.
Article 15
Consent to be bound by a treaty expressed
by accession

The consent of a State to be bound by a treaty is expressed by accession when:

(a) the treaty provides that such consent may be expressed by that State
by means of accession;
(b) it is otherwise established that the negotiating States were agreed that
such consent may be expressed by that State by means of accession; or
(c) all the parties have subsequently agreed that such consent may be
expressed by that State by means of accession.

Article 15 Expression, par ladhsion, du consentement tre li


par un trait

Le consentement dun Etat tre li par un trait sexprime par ladhsion:

a) lorsque le trait prvoit que ce consentement peut tre exprim par cet Etat par
voie dadhsion;
b) lorsquil est par ailleurs tabli que les Etats ayant particip la ngociation
taient convenus que ce consentement pourrait tre exprim par cet Etat par voie
dadhsion; ou
c) lorsque toutes les parties sont convenues ultrieurement que ce consentement
pourrait tre exprim par cet Etat par voie dadhsion.

Artikel 15 Zustimmung, durch einen Vertrag gebunden zu sein,


durch Beitritt

Die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, wird durch
Beitritt ausgedrckt,

a) wenn der Vertrag vorsieht, dass die Zustimmung von diesem Staat durch Beitritt
ausgedrckt werden kann;
consent to be bound by a treaty expressed by accession 215

b) wenn anderweitig feststeht, dass die Verhandlungsstaaten vereinbart haben, dass


die Zustimmung von diesem Staat durch Beitritt ausgedrckt werden kann,
oder
c) wenn alle Vertragsparteien nachtrglich vereinbart haben, dass die Zustimmung
von diesem Staat durch Beitritt ausgedrckt werden kann.

ILC Draft 1966

Article 12Consent to be bound by a treaty expressed by accession

The consent of a State to be bound by a treaty is expressed by accession when:

(a) The treaty or an amendment to the treaty provides that such consent may be
expressed by that State by means of accession;
(b) It is otherwise established that the negotiating States were agreed that such
consent may be expressed by that State by means of accession; or
(c) All the parties have subsequently agreed that such consent may be expressed by
that State by means of accession.

Materials:

WALDOCK Report I: Articles 7 and 13.


Minutes: YBILC 1962 I 87, 118 , 207 , 215, 237, 246 , 256, 270 f, 274 , 280 , 286 f.
ILC Draft 1962: Articles 8, 9 and 13.
WALDOCK Report IV: Articles 8, 9 and 13.
Minutes: YBILC 1965 I 77 , 113 , 260.
ILC Draft 1965: Articles 8, 9 and 13 (all postponed by the Commission).
Minutes: YBILC 1966 I/2 271 f, 287, 326, 342 f.
ILC Draft 1966: Article 12.
Minutes: OR 1968 CoW 69, 95 f, 360, 476; OR 1969 Plenary 23, 27, 229 , 343 .

Vienna Conference Vote: 73:14:8

Selected Literature:

J.F. Marchi, Article 15, in: Corten/Klein (eds.) 497 .

The basis of this commentary was prepared by Alison Wiebalck.

ZACHARIAS
216 article

CONTENTS
Paras.

A. Background ........................................................................................ 1
1. Introduction .................................................................................... 1
2. History ............................................................................................ 2
B. Interpretation of Article 15 ............................................................ 5
1. Scope ............................................................................................... 5
2. Accession Envisaged by the Treaty (Para. [a]) .................................... 7
3. Accession Otherwise Established (Para. [b]) ..................................... 8
4. Accession Subsequently Agreed Upon by the Parties
(Para. [c]) ......................................................................................... 11
C. Context .............................................................................................. 12
1. Relationship to Other Provisions ..................................................... 12
2. Matters Not Dealt With ................................................................... 14
3. Customary Basis of Article 15 ......................................................... 15
D. Appreciation ....................................................................................... 16

A. BACKGROUND

1. Introduction
1 Accession has a long tradition. In 1498 a treaty concluded between the mon-
archs of Spain and England reserved the right of States to accede to future
treaties between them. In 1778 a treaty between Spain and Portugal made
provision for other European powers to accede to it provided the original
parties agreed; France was duly invited, signing up in 1783. Between 1815
and 1820, no fewer that twenty-nine States acceded to the 1815 Final Act
of the Congress of Vienna.1 But it was with the development of the modern
multilateral treaty and the open-accession clause that the technique of acces-
sion took on its simpler present form. Prior to the General Act of Berlin of
1885 accession required an Act of Acceptance, ratication and an exchange
of the ratications of those instruments. The new procedures required merely
notication of accession by a simple declaration, an acknowledgement
thereto and the acceptance of the instrument of accession by the depositary.

1
J.M. Jones, Ratication and Full Powers (1946) 124 .
ZACHARIAS
consent to be bound by a treaty expressed by accession 217

Ratication of accession fell away, and accession to a treaty not yet in force
became acceptable.2

2. History
In 1951 Brierly Report I provided that, unless otherwise stipulated in a 2
treaty, a State which had not taken part in the negotiations could only accede
to the treaty with the consent of all the parties thereto.3 The Lauterpacht
Report II of 1953 submitted that accession was admissible subject to the
provisions of the treaty only.4
In 1962 the ILC entered the debate against the backdrop of the emergence of 3
many new States and of various multilateral treaties no longer open to signature
or accession.5 Thus, Waldock Report I dealt with accession in Article 7 on
those States entitled to participate in a treaty prior and up to adoption, and
in Article 13 on participation in a treaty by accession.6 Discussion in 1962
disclosed that the Commission was sharply divided.7 For some members a
treatys silence on the subject of participation meant a presumption in favour
of universality, i.e., that a general multilateral treaty be open to the partici-
pation of all States;8 for others, States could become parties to a treaty only
on the terms laid down in the instrument itself or with the consent of the
other parties, i.e., States had the sovereign right to choose their treaty part-
ners.9 Eventually a compromise was reached.10 A lengthy discussion evolved
in 1965 on Article 8 on participation in a treaty, culminating in a vote by
roll-call.11 Waldock as Rapporteur then proposed omitting Articles 8 and 9

2
Ibid. 126 ; McNair, Law of Treaties 148 . See also the Harvard Draft, AJIL 29 (1935)
Supplement 822 ; Fitzmaurice Report I, YBILC 1956 II 125 (accession is essentially
the acceptance of something already donenot a participation in the doing of it).
3
YBILC 1951 II 70 (Article 7 para. 3).
4
Lauterpacht Report I, YBILC 1953 II 90, 91 (Article 7, para. 2).
5
Waldock Report I, YBILC 1962 II 43, para. 2.
6
YBILC 1962 II 42 and 53 .
7
For the debate, see YBILC 1962 I 87, 118 , 207 , 215, 237, 246 , 256, 270 f, 274 ,
280 , and 286 f.
8
E.g., Lachs, YBILC 1962 I 247, para. 115 (whenever a treaty was silent on the subject of
participation, the presumption should be in favour of universality); see Jennings/Watts,
N. 611 at n. 3 (weighty theoretical objections to such a principle).
9
E.g., Briggs, YBILC 1962 I 248, para. 5; Cadieux, ibid. 132, para. 72; and Yasseen, ibid.
248, para. 11. See also the ILC Report 1962, YBILC 1962 II 168 f, para. 3.
10
Article 13 of the ILC Draft 1962, YBILC 1962 II 173.
11
I.e., (i) deletion of Article 8 para. 1 (that every State may become a party to a multilateral
treaty unless the treaty provides otherwise), rejected by ten votes to ten, with no abstentions
(casting vote of the President); (ii) a proposal to the eect that every State may become
a party to a general multilateral treaty, rejected by 13 votes to ve, with two abstentions;
(iii) a proposal to the eect that States were free to choose their partners in a treaty,
rejected nine votes to nine, with two abstentions (casting vote of the President); and
ZACHARIAS
218 article

on participation in a treaty, while incorporating some of the legal aspects of


participation in a re-drafted Article 13 on consent to be bound expressed by
accession.12 This provision led to Article 12 of the ILC Draft 1966.13
4 In Vienna in 1969 the ILC Draft 1966 (N. 3), reviewed by the Drafting
Committee,14 was adopted by 73 votes to 14, with eight abstentions15 amid
a call to adopt a declaration on the principle of universality (see Article
15Declaration, N. 2).16

B. INTERPRETATION OF ARTICLE 15

1. Scope
5 Article 15 deals with accession as one of various means of expressing con-
sent to be bound by a treaty (see also Articles 2, subpara. 1[b] and 11, q.v.).
Through accession a State which was not a negotiating State (i.e., a non-sig-
natory State) may become a party to a treaty already negotiated and signed
by other States; or a negotiating State may become a party if it was unable to
sign the treaty.17 Once a State establishes its consent to be bound by a treaty
by accession, it is bound by the treaty, i.e., there is no need for ratication,
acceptance or approval. Article 15 mentions three dierent circumstances in
which a State may express its consent to be bound by a treaty by accession,18
namely, when the treaty so provides by means of an accession clause ( para.
[a], N. 7); when it is otherwise established that the negotiating States were

(iv) a proposal to rearm Article 8, para. 1 as drawn up in 1962, rejected by ten votes to
mome. with one abstention; YBILC 1965 I 139 f, paras. 45, 47, 53, and 59. The debate
is at YBILC 1965 I 113 .
12
YBILC 1966 I/2 271, para. 50.
13
Ibid. 271, para. 53, and 326, para. 88; adopted by 14 votes to none, with one abstention.
Article 12 of the ILC Draft 1966 is reproduced at YBILC 1966 II 199 f.
14
Deleting the words or an amendment to the treaty in para. (a), because an amendment
was an integral part of the instrument, Yasseen, Chairman of the Drafting Committee,
OR 1969 CoW 345, para. 16. An amendment submitted by then Czechoslovakia provided
that any State had the right to become a party to a multilateral treaty which aects its
legitimate interests, OR Documents 128, para. 142; debated at OR 1968 CoW 95 f,
paras. 28 ; eventually withdrawn, OR Documents 239, para. 47.
15
OR 1969 Plenary 27, para. 9.
16
Statement in Vienna by the Spanish delegation, ibid. para. 8.
17
ILC Report 1966, YBILC 1966 II 199, para. 1; Aust, Modern Treaty Law 88. See Bartos
in the ILC, YBILC 1965 I 78, para. 82 ([a]fter the nal date for signature, only accession
was possible. That was an ingenious device . . . in order to establish a distinction between
signature and succession, but the distinction introduced no change of substance); and
the Harvard Draft, AJIL 29 (1935) Supplement 816.
18
ILC Report 1966, ibid. para. 4.
ZACHARIAS
consent to be bound by a treaty expressed by accession 219

so agreed ( para. [b], N. 810); and when all the parties have subsequently
agreed to admit its accession ( para. [c], N. 11). Most modern multilateral
treaties contain accession clauses. The rules laid down in paras. (b) and (c)
are intended to be residuary and apply only in the absence of specic provi-
sions in the treaty itself.19
There is no presumption in Article 15 that where a treaty is silent on the subject of
accession, that treaty is open to the participation of all States.20 It is in the hands of
the negotiating States ( paras. [a] and [b] ) or the parties to the treaty ( para. [c] ) to
agree on whether a State not entitled to become a party to a treaty under its terms is
subsequently invited to become a party.21 It follows that Article 15 expressly determines
which States have a voice in decisions regarding participation in a treaty and under what
circumstances (see in respect of the Convention Article 15Declaration, q.v.).22
The words that State in paras. (a)(c) emphasise that accession is not open to all States
or any State, but only to the particular State or States eligible or invited to accede.
Any diculties arising from accessionin particular which States may accedeare
circumvented if the treaty at issue has become binding on all States qua customary law
(Issues of Customary International Law, q.v.).

Under Article 15 accession does not depend on the treaty having entered 6
into force. This may be stated expressly by allowing accession to take place
before the time set for the treatys entry into forceeither at once, or after
the expiry of a stipulated period, or implicitly by making the entry into force
conditional on the deposit of, inter alia, instruments of accession (Article 16,
N. 6).23 The rules on the deposit of instruments of accession are the same as
on the deposit of instruments of ratication, acceptance or approval (Articles
76 and 77, q.v.). Consent to be bound is eective from the date of deposit.
Unless the treaty provides otherwise, accession has the same eect as ratica-
tion (Article 14, q.v.).24

2. Accession Envisaged by the Treaty (Para. [a])


Para. (a) provides that the consent of a State to be bound by a treaty is 7
expressed by accession when the treaty provides that such consent may be
expressed by that State by means of accession, i.e., when the treaty contains
an accession clause. States negotiating a treaty are free to provide that it be

19
See Waldock Report IV, YBILC 1965 II 30, para. 7.
20
See the statement by Rosenne in the ILC, YBILC 1962 I 135, para. 33 ([a] great deal
could be inferred from the silence of a treaty . . . the mere presence or absence of a certain
clause in a treaty was not the only relevant factor).
21
ILC Report 1966, YBILC 1966 II 199, paras. 1 and 4.
22
Waldock, YBILC 1962 I 119, para. 7.
23
ILC Report 1966, YBILC 1966 II 199, para. 2; Aust, Modern Treaty Law 110 f. See also
Article 83.
24
Aust, ibid. 113.
ZACHARIAS
220 article

open to accession, to whom and under what conditions. The accession clause
may provide that the treaty be extended to all non-signatory States without
distinction, in which case the treaty is said to be open; or it may provide
that only certain States or categories of States may accede to it; or that non-
signatory States may accede by invitation of the contracting parties only. The
privilege of non-signatory States to accede to a treaty is entirely subject to
the control of the parties to the treaty.25

3. Accession Otherwise Established (Para. [b])


8 In the absence of, in addition to or even contrary to, the provisions of an
accession clause (N. 7), consent to be bound by a treaty may be expressed
according to para. (b) when it is otherwise established that the negotiat-
ing States were agreed that such consent may be expressed by that State
by means of accession.
9 Para. (b) refers to an agreement not in the treaty itself but otherwise, i.e.,
reached outside the treaty in writing, orally or tacitly by implied conduct.
Whatever form is chosen, it must be unequivocal.26 In particular, the agree-
ment must be established, which introduces an objective element (Article 12.
N. 10). Thus, when a State claims to have reached an agreement by means
other than the treaty itself, it will be called upon to demonstrate that another
State or other States agreed that accession should have the eect of expressing
consent to be bound by the treaty.
10 Para. (b) is broader in scope than para. (c) (N. 11). It refers to the (rather
than all) negotiating States. Negotiating States are those States which took
part in the drawing up and adoption of the treaty (Article 2, subpara. 1 [e],
N. 4042), though they may not necessarily become parties to the treaty.
Conversely, para. (c) requires unanimous agreement by all the parties

25
Gore-Booth/Pakenham N. 32.27. See also Ago in the ILC, YBILC 1962 I 124, para.
70 ([a]n accession clause . . . constituted . . . an oer to the States which had not negotiated
the treaty); the Harvard Draft, AJIL 29 (1935) Supplement 828 (no right to accede).
McNair, Law of Treaties 151 ([c]omplete liberty exists for the States who are respon-
sible for the nal text of the treaty in the choice, if any, of the parties who shall have the
opportunity of acceding to it. They may throw it open to every State or only to certain
States. The choice of States may be made once and for all by naming or describing in the
text of the treaty the States to whom accession is oered . . . [or] . . . may make accession
conditional upon the later invitation or consent of all the contracting parties, or of one
or more named parties).
26
ILC Report 1966, YBILC 1966 II 196, para. 3 (simply a question of demonstrating
the intention from the evidence); see Bolintineanu, AJIL 68 (1974) 683 ([w]hat is
essential in determining . . . consent to be bound by a treaty . . . are not the circumstances
of its conclusion but the existence of an agreement to this eect between the negotiating
states, irrespective of whether it has been embodied in the text of the treaty).
ZACHARIAS
consent to be bound by a treaty expressed by accession 221

(N. 11). Hence, para. (b) does not require unanimous consent in the case of
multilateral treaties: it suces if a certain number of negotiating States agree
that accession shall be permitted.27
The aim of para. (b) is to avoid the situation where negotiating States with no intention
of subsequently ratifying the treaty or acceding to it conne themselves to the negative
function of preventing the accession of other States.28

4. Accession Subsequently Agreed Upon by the Parties (Para. [c])


Para. (c) provides that, once a treaty has entered into force, a State may express 11
its consent to be bound by accession when all the parties have subsequently
agreed that such consent may be expressed by that State by means of acces-
sion. This is a strict condition: accession to a treaty must be granted by all
the parties (as opposed to the negotiating States (italics added ) in para. [b],
N. 10), i.e., the existing parties must unanimously agree to the participation
of non-signatory States in the treaty.29 Parties are those States which have
consented to be bound and for which the treaty is already in force (Article 2,
subpara. 1 [ g ], N. 48). In practice, the collective determination required by
para. (c) means that the depositary will notify all the parties of the applica-
tion by a non-signatory State for accession to the treaty; if no party objects,
the accession is deemed accepted.30 As in para. (b), the agreement between
all the parties will be reached outside the treaty in writing, orally or tacitly
by implied conduct.
The dierence between paras. (b) (N. 10) and (c) appears justied. A negotiating State
(as in para. [b])) may yet opt out of an agreement if it no longer wishes to be a party,
whereas a State bound by the treaty cannothence the stricter provision in para. (c).
For as long as all the parties agree that consent to be bound may be expressed by acces-
sion, negotiating States have less cause to hesitate before becoming parties to a treaty
for fear that treaty partners be imposed upon them.31

27
See Lauterpacht, Report I, YBILC 1953 II 119, para. 6 ([i]nsofar as the original instru-
ment makes accession dependent upon some subsequent action or condition, there is
room . . . for relaxing in cases of doubt the requirement for unanimous consent).
28
See the statement in the ILC Lachs, YBILC 1962 I 125, para. 81; also Waldock, ibid.
132, para. 78 (negotiating States . . . had an important interest in the question of future
participants. If the decision were left to the parties alone, and they acted in a manner
contrary to the views of the states which had participated in the negotiations, some of the
latter might nd themselves unwilling to proceed to ratify the treaty); and Ago, ibid.
124, paras. 73 f.
29
Statements in the ILC by Waldock, ibid. 281, para. 91; and Tsuruoka, YBILC 1965 I
119, para. 12 ([i]nconceivable that an independent State should be required to accept,
without its consent, treaty partners imposed on it by other States).
30
Aust, Modern Treaty Law 111 f.
31
Tsuruoka in the ILC, YBILC 1965 I 119, paras. 16 f.
ZACHARIAS
222 article

C. CONTEXT

1. Relationship to Other Provisions


12 Article 2, subpara. 1(b) (q.v., N. 26) equates accession as a means of consent
with ratication, acceptance and approval (as in Article 14, q.v.). Although
these means all have the same legal eect, they dier in nature.32 Thus, ratica-
tion must be preceded by signature to create binding legal obligations under
international law, whereas accession requires only one step, i.e., the deposit
of an instrument of accession which binds the State concerned. The latter is
then included among the parties.33
13 The following relations with other provisions may be noted:
The fact that a State possesses the capacity to conclude a treaty according to Article 6
(q.v.) does not imply that that State possesses the right to be a party to a treaty. The
equality of States implies that States are free to choose their partners when concluding
a treaty.34
According to Article 7 (q.v.), an instrument of accession must be issued and signed, as is
the case for ratication, either by the Head of State or Government or by the Minister
for Foreign Aairs.
According to Article 16, paras. (a)(c) (q.v.), unless the treaty otherwise provides, acces-
sion has no eect internationally as long as the instrument of accession is not exchanged,
deposited or notied (N. 4).
Performance of the treatys obligations commences as provided for in the treaty or
according to Article 24 (q.v.). In the interim, Article 18 (q.v.) applies.
As provided for by Article 83 (q.v), the present Convention is open for accession by any
State belonging to any of the categories mentioned in Article 81 (q.v), the instruments
of accession to be deposited with the UN Secretary-General.
Article 84, para. 1 (q.v., N. 1) made allowance for States to accede to the present Con-
vention before its entry into force (which was on 27 January 1980). According to para.
2 (q.v., N. 2) for States acceding to the Convention after that date the Convention
shall enter into force on the thirtieth day after deposit by such State of its instrument
of accession.

2. Matters Not Dealt With


14 Article 15 makes no distinction between bilateral and multilateral treaties.
In practice, accession is mainly relevant to multilateral treaties. Nevertheless,

32
See the statement in the ILC by its Chairman, Bartos, ibid. 79, para. 83; Aust, Modern
Treaty Law 113.
33
ILC Report 1966, YBILC 1966 II 199, para. 3.
34
Statements in the ILC by Tsuruoka, YBILC 1965 I 119, para. 12; and Cadieux, ibid
121, para. 10. See also Article 15Declaration.
ZACHARIAS
consent to be bound by a treaty expressed by accession 223

it is conceivable that parties to a bilateral treaty may consent to a third State


acceding to it, so making it multilateral.35 Furthermore, Article 15 makes no
allowance for Contracting States36 to agree to allow a non-signatory State to
express its consent to be bound by accession.

3. Customary Basis of Article 15


In the words of one Government, Article 15 is consistent with UN practice 15
and reects the almost universal practice to dene the States which may
accede.37 Clearly, para. (a) reects customary international law, whilst paras.
(b) and (c) as residuary rules introduced details which, when discussed in
Vienna, probably went beyond codication.38 Today the provision as a whole
most likely reects a customary rule.

D. APPRECIATION

Article 15 conrms the freedom of the negotiating States and parties to 16


determine which non-signatory States may become parties to their treaty
while avoiding the pitfalls associated with any presumption that a particular
State has the right to do so.39 The tight, spare drafting of Article 15 connes
itself to the circumstances of if and when a non-signatory State may express
its consent to be bound by a treaty by accession. As such, Article 15 ts in
with the Articles 1114 (q.v.) all of which preserve the procedural autonomy
of the negotiating States40 whilst allowing dierent methods of establish-
ing the consent of non-signatory States to be bound by a treaty. States are
nevertheless advised when negotiating treaties to consider the desirability of
including an express provision on accession.41

35
Waldock Report I, YBILC 1962 II 43, para. 2; Aust, Modern Treaty Law 88 f.
36
As opposed to Parties; see Article 2, subpara. 1(f ), N. 45.
37
Observation by the UK Government to the ILC, Waldock Report IV, YBILC 1965 II 27.
38
Rosenne, YBILC 1962 I 125, para. 3; McNair, Law of Treaties 150 (the practice con-
cerning accessions is characterised by great variety and exibility).
39
Cadieux, YBILC 1962 I 131, para. 72; Waldock Report IV, YBILC 1965 II 29, para. 3.
40
Bolintineanu, AJIL 68 (1974) 674.
41
Gros, YBILC 1962 I 127, para. 28.
ZACHARIAS
Article 15
Declaration on universal participation in the
Vienna Convention on the Law of Treaties

The United Nations Conference on the Law of Treaties,


Convinced that multilateral treaties which deal with the codication and
progressive development of international law, or the object and purpose
of which are of interest to the international community as a whole, should
be open to universal participation.
Noting that Articles 81 and 83 of the Vienna Convention on the Law of
Treaties enable the General Assembly to issue special invitations to States
which are not Members of the United Nations or any of the specialised agen-
cies or of the International Atomic Energy Agency, or parties to the Statute
of the International Court of Justice, to become parties to the Convention,
1. Invites the General Assembly to give consideration, at its twenty-fourth
session, to the matter of issuing invitations in order to ensure the
widest possible participation in the Vienna Convention on the Law
of Treaties;
2. Expresses the hope that the States Members of the United Nations will
endeavour to achieve the object of this Declaration;
3. Requests the Secretary-General of the United Nations to bring this
Declaration to the notice of the General Assembly;
4. Decides that the present Declaration shall form part of the Final Act
of the United Nations Conference on the Law of Treaties.

Materials:

Proposed new article 5 bis


Minutes: OR 1968 CoW 69, 476; OR 1969 CoW 229 , 343 ; OR 1969 Plenary 181 .

Vienna Conference Vote: 61:20:26

Selected Literature:

I. Lukashuk, Parties to Treatiesthe Right of Participation, RC 135 (1972 I) 231 .

The basis of this commentary was prepared by Alison Wiebalck.


declaration on universal participation 225

CONTENTS
Paras.

A. Background .......................................................................................... 1
1. Introduction ...................................................................................... 1
2. History .............................................................................................. 2
B. Interpretation of the Declaration ................................................... 3
C. Appreciation ......................................................................................... 7

A. BACKGROUND

1. Introduction
The question of participation in treaties, multilateral treaties in particular, 1
came to the fore after 1945. There was a steep rise in the number of new
States, the numbers and activities of international organisations increased, and
the need arose for a response to more global needs such as nuclear contain-
mentall spurring the need to participate in more treaties (as the principal
means of creating rights and obligations). However, diculties arose in the
context of the Cold War, inter alia, with the divided States of Germany,
Vietnam and Korea, since participation in treaties presupposed recognition
of these States.1

2. History
At the Conference in Vienna in the context of the discussion on Article 15 2
(q.v., N. 4), eleven States introduced a new Article 5bis on the question which
States were entitled to participate in a treaty (the all States-issue).2 In 1969
this provision was debated at length in the Committee of the Whole dur-
ing which time a further amendment was submitted by the same States and
discussed.3 The rst proposal was withdrawn and the second rejected on a

1
Reuter, Introduction N. 117.
2
Submitted by Algeria, Ceylon, Hungary, India, Mali, Mongolia, Romania, Syria, the then
Ukrainian SSR, United Arab Republic and Yugoslavia, OR 1969 CoW 229, para. 1 ([a]ll
States have the right to participate in general multilateral treaties in accordance with the
principle of sovereign equality). See also Th. Schweisfurth, International Treaties and
Third States, ZaRV 45 (1985) 656 .
3
Introduced by the Syrian delegation, ibid. 240, paras. 35 f ([e]very State has the right to
participate in a multilateral treaty which codies or progressively develops norms of general
ZACHARIAS
226 article

roll-call vote.4 However, the Conference was urged to recognise the principle
of universality along the lines of a Declaration as accepted, for instance, in
connection with Article 52 (Article 52Declaration, q.v.).5 In an attempt to
overcome the deadlock on the all States-issue which threatened to call in
question the whole Conference,6 a ten State-proposal introduced in a package
deal a compromise which included Article 66 (q.v.), an Annex thereto (Article
66 Annex, q.v.) and the present Declaration, This package deal was adopted
by a not too narrow majority.7 The Conference went on to consider the nal
clauses where the all States- participation clauses were re-introduced but
defeated, and the Vienna-formula-participation clauses adopted (Articles
81, N. 2).8 A similar discussion also arose in the context of the Preamble (q.v.,
N. 3). Finally, the Conference adopted the Declaration following a drafting
change in the title of the declaration.9
Interestingly, the Declaration itself does not mention all States. Also, the Declaration
connes itself to postulating universal participation in the Convention rather than in
multilateral treaties as a whole. Patently, there is no relationship between the all States-
proposal and the issue of the settlement of disputes (Articles 6568, q.v.).10

B. INTERPRETATION OF THE DECLARATION

3 The preambular paragraphs may be assessed as follows:

international law or the object and purpose of which are of interest to the international
community of States as a whole). For the debates see ibid. 229 , 343 .
4
By 52 votes against 32, with 19 abstentions, ibid. 240, para. 35, and 344, para. 10.
5
Statement in Vienna by the Spanish delegation, ibid. 237, para. 7.
6
See, e.g., the statements in Vienna by the delegations of Ceylon, OR 1969 Plenary 182,
para. 22 (rejection of the principle . . . would be a signal failure on the part of the Confer-
ence and might even make the entire convention unacceptable to some States); and the
then USSR, ibid. 185, para. 5 (unless the principle of universality was embodied in the
proposed new article . . . it would be unable to support the convention as a whole).
7
Submitted by Ghana, Ivory Coast, Kenya, Kuwait, Lebanon, Morocco, Nigeria, Sudan, Tunisia
and Tanzania, ibid. 187 , paras. 26 ; adopted by 61 votes to 20, with 26 abstentions,
ibid. 193, para. 72.
8
Ibid. 195 , paras. 86 . On subsequent developments, see Aust, Modern Treaty Law
115 f.
9
Ibid. 203, para. 7. The declaration had initially been adopted under the title Declaration
on Universal Participation in and Accession to the Convention on the Law of Treaties.
The Drafting Committee took the view that the adjective universal could not be applied
to accession for the later was but one of several means whereby a State could express its
consent to be bound by a treaty. Accession in the title could, therefore, appear to exclude
other means of expressing consent to be bound such as ratication; see the statement by
the Chairman of the Drafting Committee, Yasseen, ibid. 202, para. 5.
10
See Kearney/Dalton, AJIL 64 (1970) 549 ; Stanford, UTLJ 20 (1970) 19 .
ZACHARIAS
declaration on universal participation 227

rst preambular para.: convinced that multilateral treaties which deal with the
codication and progressive development of international law, or the object
and purpose of which are of interest to the international community as a whole,
should be open to universal participation. This para. emphasises the value of the
principle of universality but does not extend to guaranteeing participation by all
States in all multilateral conventions of interest to the international community as
a whole.11
second preambular para.: noting that Articles 81 and 83 of the Vienna Convention
on the Law of Treaties enable the General Assembly to issue special invitations
to States which are not Members of the United Nations or any of the specialised
agencies or of the International Atomic Energy Agency, or parties to the Statute
of the International Court of Justice, to become parties to the Convention. Here,
reference is made to Articles 81 and 83 (q.v.); in fact, this preambular para. reiterates
Article 81.

Para. 1, containing the core of the Declaration, invites the General Assem- 4
bly to give consideration, at its twenty-fourth session, to the matter of
issuing invitations in order to ensure the widest possible participation in
the Vienna Convention on the Law of Treaties. The Declaration thus shifts
the onus of resolving the political all States-issue to the General Assembly,12
though the latter is not in any way committed.13
Since every Member of the UN had and has the right to raise any question at any ses-
sion of the General Assembly, in practice the vital part of the declaration added little
to a right that already existed.14

Para. 2 expresses the hope that the States Members of the United Nations 5
will endeavour to achieve the object of this Declaration. Thereby, the
Vienna Conference encouraged all Stateswhether they had voted for or

11
See the statements by the delegations of Nepal, OR 1969 Plenary 199, para. 16 ([a]lthough
the declaration did not guarantee participation by all nations . . . it nevertheless emphasized
the principle of universality); and the then USSR, ibid. 198, para. 6 (merely a feeble
appeal to the United Nations).
12
See the statements by the Malaysian delegation, ibid. 201, para. 31 (the Conference, having
been convened by the General Assembly, should leave it to the General Assembly to decide
which States should be invited to participate in the convention on the law of treaties);
Kearney/Dalton AJIL 64 (1970) 552 (non-binding declaration on the right to accede
to the Convention, which in eect relegated the matter to the General Assembly).
13
Various delegations placed on record that their votes in favour of the Declaration in no
way prejudiced the position of their Governments in the General Assembly in any future
debate on the question of universal participation; see, inter alia, Italy, OR 1969 Plenary
194, para. 80; the UK (Sir Francis Vallat), ibid. 190, para. 38; the then USSR, ibid.
190, para. 41 (no obligations whatsoever); and the United Republic of Tanzania, ibid.
191, para. 47 (very mild).
14
See the statement in Vienna by Blix of the Swedish delegation, ibid. 193, para. 70 (although
no immediate solution had been found for the problem of universal participation, an
opportunity for such a solution in the General Assembly was oered).
ZACHARIAS
228 article

against the Declarationto pledge their support for the issuing of invitations
to all States to participate in the Convention.
In para. 3 the UN Secretary-General is invited to bring the Declaration to
the notice of the General Assembly.
At the request of the UN Secretary-General, the Declaration was placed on the provisional
agenda of the twenty-fourth session of the General Assembly (N. 4) and allocated to the
Sixth Committee. The item was eventually deferred until 1971.15 By virtue of General
Assembly Resolution 3233 (XXIX) of 12 November 1974, all States were invited to
become parties to the Convention.

6 According to para. 4, the Conference decided that the present Declara-


tion should form part of the Final Act of the Conference on the Law of
Treaties.

C. APPRECIATION

7 The real issue in Vienna was that of the recognition of certain entities (N. 2).16
There was no serious opposition to the sentiment that the largest possible
number of States should be able to become parties to general multilateral
treaties, though there were certain divided States whose eligibility to partici-
pate as States was disputed. Whilst the advocates of universality promoted
the concept of the sovereign equality of States,17 their counterparts argued,
inter alia, that not every entity claiming to be sovereign was a State, and that
as the issue was political it ought to be resolved by the General Assembly as
the main political organ of the United Nations.

15
Rosenne, Law of Treaties 161.
16
See the statements in Vienna by Sinclair of the UK delegation, OR 1969 CoW 239,
para. 29 (the essence of the problem lay in the fact that the members of the international
community of States had diering views on the question of what territorial entities con-
stituted States); and in the ILC by Lachs, YBILC 1965 I 117, para. 3; Stanford, UTLJ
20 (1970) 26 ([t]he essential issue at stake, of course, is recognition).
17
Statements in Vienna by the delegations of the then Ukrainian SSR, OR 1969 CoW 231,
para. 15; Ceylon, ibid. 232, para. 25. See also Stanford, ibid. 20.
ZACHARIAS
Article 16
Exchange or deposit of instruments of
ratication, acceptance, approval or
acceptance

Unless the treaty otherwise provides, instruments of ratication, accep-


tance, approval or accession establish the consent of a State to be bound
by a treaty upon:

(a) their exchange between the contracting States;


(b) their deposit with the depositary; or
(c) their notication to the contracting States or to the depositary, if so agreed.

Article 16 Echange ou dpt des instruments de ratication,


dacceptation, dapprobation ou dadhsion

A moins que le trait nen dispose autrement, les instruments de ratication,


dacceptation, dapprobation ou dadhsion tablissent le consentement dun Etat
tre li par un trait au moment:

a) de leur change entre les Etats contractants;


b) de leur dpt auprs du dpositaire; ou
c) de leur notication aux Etats contractants ou au dpositaire, sil en est ainsi
convenu.

Artikel 16 Austausch oder Hinterlegung von Ratikations-,


Annahme-, Genehmigungs- oder Beitrittsurkunden

Sofern der Vertrag nichts anderes vorsieht, begrnden Ratikations-, Annahme-,


Genehmigungs- oder Beitrittsurkunden die Zustimmung eines Staates, durch einen
Vertrag gebunden zu sein, im Zeitpunkt

a) ihres Austausches zwischen den Vertragsstaaten;


230 article

b) ihrer Hinterlegung bei dem Depositr oder


c) ihrer Notikation an die Vertragsstaaten oder den Depositr, wenn dies vereinbart
wurde.

ILC Draft 1966

Article 13Exchange or deposit of instruments of ratication,


acceptance, approval or accession

Unless the treaty otherwise provides, instruments of ratication, acceptance, approval


or accession establish the consent of a State to be bound by a treaty upon:

(a) Their exchange between the contracting States;


(b) Their deposit with the depositary; or
(c) Their notication to the contracting States or to the depositary, if so agreed.

Materials:

Waldock Report I: Articles 11, 12, 14, 15 and 16.


Minutes: YBILC 1962 I 111 , 136 f, 237 , 257, 272 f.
ILC Draft 1962: Articles 15, 16.
Waldock Report IV: Articles 15, 16.
Minutes: YBILC 1965 I 80 , 252, 260 f, 282.
ILC Draft 1965: Article 15.
Minutes: YBILC 1966 I/2 272 f, 326, 343.
ILC Draft 1966: Article 13.
Minutes: OR 1968 CoW 96 f, 360; OR 1969 Plenary 23, 27 f.

Vienna Conference Vote: 99:0:1

Selected Literature:

F. Horchani, Article 16, in: Corten/Klein (eds.) 539 .

ZACHARIAS
exchange or deposit of instruments 231

CONTENTS
Paras.

A. History ................................................................................................ 1
B. Interpretation of Article 16 ............................................................ 2
C. Context .............................................................................................. 8
1. Relationship to Other Provisions ...................................................... 8
2. Customary Basis of Article 16 .......................................................... 9
D. Appreciation ....................................................................................... 10

A. HISTORY

Article 16 goes back to altogether six articles in Waldock Report I, pertaining 1


also to Article 17 (q.v., N. 2) and Articles 7678 (q.v.).1 These were condensed
into two provisions in the ILC Report 19622 which in an isolated instance
were criticised for stating the obvious.3 In 1965 various descriptive elements
were deleted, others were transferred to Article 17.4 In Vienna, Article 13 of
the ILC Draft 1966 was adopted without any further change by 99 votes to
none, with one abstention.5
On the whole, the ILC and the Vienna Conference had little diculty with the content
of Article 16; the travaux prparatoires concern mainly the organisation of the various
provisions.

B. INTERPRETATION OF ARTICLE 16

Article 16 explains the procedures (or acts) whereby instruments of ratica- 2


tion, acceptance, approval or accession (Articles 1415, q.v.) establish the

1
Articles 1116 of Waldock Report I, YBILC 1962 I 5260.
2
Article 15 of the ILC Draft 1962, YBILC 1962 II 174 f.
3
Observation by the Japanese Government, Waldock Report IV, YBILC 1965 II 41.
4
See, e.g., the proposal made during the deliberations in 1965 at YBILC 1965 I 260,
para. 65.
5
The ILC Draft 1966 is reproduced at YBILC 1966 II 201, the provision having been
adopted by the ILC by 17 votes to none, YBILC 1966 I 273, para. 76. In Vienna, two
drafting amendments by Poland and Canada were referred to the Drafting Committee, but
not pursued, OR Documents 129, subparas. 151(a) and (b); see the comment by Yasseen
of the Drafting Committee in OR 1968 CoW 360, para. 95. The 1969 Conference briey
discussed the words if so agreed in para. (c) (N. 7), OR 1969 Plenary 27 f. The vote is
at ibid. 28, para. 20.
ZACHARIAS
232 article

consent of a State to be bound by a treaty.6 It lists three alternative acts by


which consent to be bound is established, namely the exchange (N. 5) or the
deposit (N. 6) of the instruments, or notication to the contracting States or
the depositary (N. 7).7 Often, one or more of these acts are mentioned in the
treaty. Without them, the treaty has no eect qua contractual obligation and
has no binding force. Article 16 contains formal procedures and conrms
the written nature of the treaties falling under the Convention (Article 2,
subpara. 1[a], N. 1517).8
Article 16 straddles Articles 14 and 15 (q.v.), on the one hand, and Article 24, para. 2
(q.v.; N. 810), on the other. From Articles 14 and 15 it transpires how the instruments
of ratication, acceptance, approval or accession may express consent to be bound by
a treaty. Article 16 explains the further requirements for such instruments to establish
consent, namely their exchange, deposit or notication. Article 24, para. 2 further
determines the moment of entry into force which may, or may not (depending on the
treatys stipulation), coincide with the moment in Article 16 when all instruments have
been exchanged, deposited or notied.
3 Article 16 is residuary: States may at any time provide otherwise and envis-
age a special (and in particular informal) procedure.9 Para. (c) envisages the
possibility of a further agreement (N. 7).
4 Earlier ILC Draftsfor instance of 196510suggested that the various
instruments become operative by means of one of the three acts (N. 57).
The present formulationto establish the consent of a State to be bound
by a treatywas chosen as the more general formulation, since the proposal
of 1965 would have required a precise description of the point in time when
the instrument took eect, or even the stipulation of a period of time after
which the eect took place.

6
See the statement by the Belgian delegation in Vienna, OR 1969 Plenary 28, para. 19
(dual purpose of setting out the procedures whereby instruments were communicated
and at the same time determining the moment at which consent was established); dier-
ently Rosenne in the ILC, YBILC 1965 I 82, para. 32 (the important element was not
the means or the procedure, but the time when the instrument became operative).
7
ILC Report 1966, YBILC 1966 II 201, para. 1. The alternative character of these acts
is conrmed by the or at the end of para. (b); see the statement in Vienna by the
Expert Consultant, Sir Humphrey Waldock, OR 1969 Plenary 27, para. 11, and 28,
para. 15.
8
Delbrck/Wolfrum III 555.
9
ILC Report 1966, YBILC 1966 II 201, para. 2; Article 11, para. 3 of Waldock Report
I, YBILC 1962 II 52.
10
E.g., Article 15 of the ILC Draft 1965, YBILC 1965 II 161 ([u]nless the treaty otherwise
provides, instruments of ratication, accession, acceptance or approval become opera-
tive); see Briggs in the ILC, YBILC 1966 I/2 325, para. 71; Waldock, ibid. para. 72;
also Rosenne, YBILC 1966 I/2 273, para. 73 (who wished a short interval before the
exchange or deposit of instruments or a notication . . . took eect).
ZACHARIAS
exchange or deposit of instruments 233

Para. (a) states that the instruments mentioned (N. 2) may establish a States 5
consent to be bound by a treaty upon their exchange between the con-
tracting States.11 This is the traditional procedure for bilateral treaties,12 but
applies to all treaties.
According to para. (b), a States consent to be bound by a treaty is further 6
established upon the deposit of these instruments with the depositary (para.
[b]) as provided for in Article 77 (q.v.).13 As the Court conrmed in the Land
and Maritime Boundary (Cameroon/Nigeria) Case,14 the depositarys subse-
quent information of other States is irrelevant for purposes of Article 16.15
Para. (c) provides for a less formal and more recent means for these instru- 7
ments to establish a States consent to be bound by the treaty, namely upon
their notication as in Article 78 (q.v.) to the contracting States or to the
depositary.16 However, this act can only be chosen if it was so agreed by the
contracting States. Para. (c) thus contains a second voluntary element (N. 2).
Agreement may be expressed formally or informally, i.e., also tacitly.
The words so agreed very likely concern para. (c) alone. Thus, unless the treaty
otherwise provides (N. 3), the acts in paras. (a) and (b) apply as residuary rules in all
circumstances, whereas the act in para. (c) requires an additional agreement in order to
become relevant within this residuary set of rules.17

11
ILC Report 1966, YBILC 1966 II 201, para. 3. See the statement in Vienna by the Belgian
delegation, OR 1969 Plenary 28, para. 18.
12
Article 11, para. 3 of Waldock Report I, YBILC 1962 II 52. See Aust, Modern Treaty
Law 105 (normal only for bilateral treaties), with further explanations as to the procedure
(ceremony, venue of exchange etc.).
13
ILC Report 1966, YBILC 1966 II 201, para. 3. See the statement in Vienna by the Belgian
delegation, OR 1969 Plenary 28, para. 18. This possibility was originally envisaged solely
for multilateral treaties; see Article 11, para. 3 of Waldock Report I, ibid. See Aust,
Modern Treaty Law 106 (normal practice for multilateral treaties).
14
ICJ Reports 1998 294, para. 31 (the deposit of instruments of ratication, acceptance,
approval or accession to a treaty establishes the consent of a State to be bound by a
treaty . . . [T]he rules established in this sphere by the Vienna Convention correspond to
the solution adopted by the Court in the case concerning Right of Passage over Indian Ter-
ritory (India/Portugal) Case (1960) [ICJ Reports 1957 146]).
15
See extensively on this point the ILC Report 1966, YBILC 1966 II 201, paras. 1 ; the
statement by Ruda in the ILC, YBILC 1965 I 82, para. 23.
16
ILC Report 1966, ibid. para. 4. See the statements in Vienna by the Belgian delegation,
OR 1969 Plenary 28, para. 18; and in the ILC by Waldock in the ILC, YBILC 1965 I
260, para. 67. But see Aust, Modern Treaty Law 106 (best avoided in the interests of
certainty and simplicity. It is hardly, if ever, now done).
17
Upon a question raised by the Belgian delegation in Vienna, OR 1969, Plenary 27, para.
10, the Expert Consultant, Sir Humphrey Waldock, did not consider these words abso-
lutely necessary . . . [I]f any ambiguity resulted from their inclusion, he thought they could
be dispensed with, ibid. 27 f, para. 11.
ZACHARIAS
234 article

C. CONTEXT

1. Relationship to Other Provisions


8 The relationship to Articles 14, 15 and 24 has been explained above (N. 2).
Paras. (b) and (c) are complemented by Articles 77 and 78 (q.v.).

2. Customary Basis of Article 16


9 In the ILC, paras. (a) and (b) of Article 16 were regarded as reecting tra-
ditional procedures.18 There is no reason to doubt the customary nature of
para. (c).

D. APPRECIATION

10 Article 16 concerns a small but not unimportant step in the procedures


leading to the conclusion and entry into force of treaties. It complements in
particular Articles 1115 (q.v.). The requirement of an additional agreement
in para. (c) complicates the application of Article 16 (N. 7).

18
Statement by Waldock in the ILC, YBILC 1965 I 260, para. 67. See also the Land and
Maritime Boundary (Cameroon/Nigeria) Case, ICJ Reports 1998 294, para. 31, albeit mainly
with regard to para. (b) (general rule . . . reected in [Article] 16); see Horchani, Article
16, N. 4, in respect of the entire article.
ZACHARIAS
Article 17
Consent to be bound by part of a treaty and
choice of differing provisions

1. Without prejudice to Articles 19 to 23, the consent of a State to be


bound by part of a treaty is eective only if the treaty so permits or
the other contracting States so agree.
2. The consent of a State to be bound by a treaty which permits a choice
between diering provisions is eective only if it is made clear to which
of the provisions the consent relates.

Article 17 Consentement tre li par une partie dun trait


et choix entre des dispositions direntes

1. Sans prjudice des articles 19 23, le consentement dun Etat tre li par une
partie dun trait ne produit eet que si le trait le permet ou si les autres Etats
contractants y consentent.
2. Le consentement dun Etat tre li par un trait qui permet de choisir entre
des dispositions direntes ne produit eet que si les dispositions sur lesquelles
il porte sont clairement indiques.

Artikel 17 Zustimmung, durch einen Teil eines Vertrags gebunden zu sein,


sowie Wahl zwischen unterschiedlichen Bestimmungen

1. Unbeschadet der Artikel 19 bis 23 ist die Zustimmung eines Staates, durch einen
Teil eines Vertrags gebunden zu sein, nur wirksam, wenn der Vertrag dies zulsst
oder die anderen Vertragsstaaten dem zustimmen.
2. Die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, der eine
Wahl zwischen unterschiedlichen Bestimmungen zulsst, ist nur wirksam, wenn
klargestellt wird, auf welche Bestimmungen sich die Zustimmung bezieht.

236 article

ILC Draft 1966

Article 14Consent relating to a part of a treaty and choice of diering


provisions

Unless the treaty otherwise provides, instruments of ratication, acceptance, approval


or accession establish the consent of a State to be bound by a treaty upon:

1. Without prejudice to the provisions of Articles 16 to 20, the consent of a State to


be bound by part of a treaty is eective only if the treaty so permits or the other
contracting States so agree.
2. The consent of a State to be bound by a treaty which permits a choice between
diering provisions is eective only if it is made plain to which of the provisions
the consent relates.

Materials:

Waldock Report I: Article 11.


Minutes: YBILC 1962 I 111 , 237 f, 257.
ILC Draft 1962: Article 15.
Waldock Report IV: Article 15.
Minutes: YBILC 1965 I 80 , 261 f, 282.
ILC Draft 1965: Article 16.
Minutes: YBILC 1966 I/2 326, 341.
ILC Draft 1966: Article 14.
Minutes: OR 1968 CoW 97, 360 f; OR 1969 Plenary 10.

Vienna Conference Vote: 99:0:0

Selected Literature:

C. Hillings, Article 17, in: Corten/Klein (eds.) 579 .

ZACHARIAS
consent to be bound by part of a treaty 237

CONTENTS
Paras.

A. Background ........................................................................................ 1
1. Introduction .................................................................................... 1
2. History ............................................................................................ 2
B. Interpretation of Article 17 ............................................................ 3
1. Scope ............................................................................................... 3
2. Consent to be Bound by Part of the Treaty (Para. 1) ......................... 4
3. Treaties Permitting Choice of Diering Provisions (Para. 2) .............. 6
C. Context .............................................................................................. 7
1. Relationship to Other Provisions ...................................................... 7
2. Matters Not Dealt With ................................................................... 8
3. Customary Basis of Article 17 .......................................................... 9
D. Appreciation ...................................................................................... 10

A. BACKGROUND

1. Introduction
Traditionally, international law envisaged ratication solely of the entire 1
treaty.1 However, in the last fty years international treaty law has become more
exible and provides for treaties permitting partial ratication (e.g., the Revised
General Act for the Pacic Settlement of International Disputes of 1949)2

1
See the Havana Convention on Treaties of 1928, AJIL 29 (1935) 1205 (ratication
must . . . embrace the entire treaty); Jennings/Watts N. 607.
2
UNTS 71 102. See, e.g., Article 38: [a]ccessions to the present General Act may extend:
A. Either to all the provisions of the Act [chapters I, II, III and IV]; B. Or to those provi-
sions only which relate to conciliation and judicial settlement [chapters I and II], together
with the general provisions dealing with these procedures [chapter IV]; C. Or to those
provisions only which relate to conciliation [chapter I] together with the general provisions
concerning the procedure [chapter IV]. Jennings/Watts, N. 607 at n. 7 (with further
examples) regard this as a case of choosing between diering provisions as in Article 17,
para. 2; however, paras. A-C clearly distinguish between all provisions on the one hand, and
parts of the treaty, on the other. In the ILC it was also pointed out that the United States
had ratied only certain parts of the treaty of Versailles [sc. insofar as it did not become a
member of the League of Nations]with serious political consequences, Bartos, Chair-
man, YBILC 1965 I 84, para. 57.
ZACHARIAS
238 article

and even oering a choice of diering provisions. Such treaties concern mainly
conventions dealing with technical or specialised matters.3

2. History
2 In 1962 the ILC dealt with Articles 16 (q.v., N. 1) and 17 together.4 In 1965
it was agreed to formulate a separate article which led to Article 14 of the ILC
Draft 1966.5 The latter underwent a small change in its title but otherwise
attracted no debate at the 1968/1969 Vienna Conference and was adopted
by 99 votes to none.6

B. INTERPRETATION OF ARTICLE 17

1. Scope
3 It follows from the structure of Article 17 that the principle remains untouched
according to which ratication shall comprise the entire treaty (N. 1). How-
ever, if all States concerned agree, a State may either consent to be bound
by part of a treaty, as in para. 1 (N. 45), or, if the treaty so permits, even
choose between diering provisions within the treaty, as in para. 2 (N. 6).

3
See, e.g., the Revised European Social Charter of 1996, CETS No. 163, stating in Part III,
Article A (Undertakings): to consider itself bound by at least six of the following nine
articles of Part II of this Charter: Articles 1, 5, 6, 7, 12, 13, 16, 19 and 20; to consider itself
bound by an additional number of articles or numbered paragraphs of Part II of the Charter
which it may select, provided that the total number of articles or numbered paragraphs by
which it is bound is not less than sixteen articles or sixty-three numbered paragraphs; the
Labour Inspection Convention of 1947, ILO Treaties No. 96, Article 25: 1. Any Member
of the International Labour Organisation which raties this Convention may, by a declara-
tion appended to its ratication, exclude Part II from its acceptance of the Convention.
See Lachs in the ILC, YBILC 1962 I 112, para. 23; and Waldock, YBILC 1965 I 86,
para. 92. See also the Convention on Conventional Weapons of 1980, UNTS 137 1342,
requiring participating States consent to be bound by at least two of three Protocols, Aust,
Modern Treaty Law 83.
4
First mentioned in Waldock Report I (Article 11) in the wider context of the procedure
of ratication, YBILC 1962 II 52 f. See the ILC Draft 1962, ibid. 174 f, where for the rst
time in subparas. 1(b) and (c) of Article 15 the paragraphs of todays Article 17 transpire.
See also Waldock Report IV, YBILC 1965 II 41 ; the ILC Report 1966, YBILC 1966 II
201, para. 1.
5
YBILC 1965 I 261, para. 78; see Waldock, ibid. 86, para. 92.
6
There were no amendments at the Conference, OR Documents 130, para. 157. Immedi-
ately approved at OR 1968 CoW 97, para. 39, and 360 f, para. 98; adopted at OR 1969
Plenary 29, para. 24.
ZACHARIAS
consent to be bound by part of a treaty 239

Both cases concern partial consent which can be expressed by means of partial
ratication, partial acceptance, partial approval or partial accession.7
Article 17 does not pronounce itself on the separability of treaty provisions as Article
44 (q.v.) does in respect of the invalidity, termination and suspension of the operation
of a treaty. By envisaging consent to only part of a particular treaty, States obviously
consider the particular provisions as being separable.8

2. Consent to be Bound by Part of the Treaty (Para. 1)


Para. 1 concerns the consent of a State to be bound by part of a treaty, i.e., 4
to certain provisions or parts only. Such partial consent is eective only if
the treaty so permits or the other contracting States so agree. Agreement
outside the treaty can be reached informally and at any stage of the treatys
life. If other States fail to agree or the treaty itself does not specify accordingly,
a States partial consent will not be eective, i.e., operative, and the State will
not be bound by the treaty at all, unless it has given some other indication as
to its consent, for instance, to be bound by the entire treaty.9
Para. 1 further provides that it is without prejudice to Articles 19 to 23 5
(q.v.) concerning reservations. Thus, Article 17 reserves the possibility of
reservations, but does not expressly envisage a distinction between reserva-
tions and partial consent. Indeed, the dierence is not clear-cut. It can be said
that para. 1 enables States collectively to agree to allow a particular State to
accede to certain parts of a treaty only, whereas Articles 1923 enable States
to disagree with, and object to, the reservation of a particular State.10 In other
words, a State which expresses its consent to be bound subject to reservations
is extending its consent to the entire treaty with the exception of certain

7
ILC Report 1966, YBILC 1966 II 201 f, para. 2. See Waldock Report I, YBILC 1962 II
53, para. 3 (it is not admissible to select parts only of the treaty for ratication. Occasion-
ally, however, treaties are found which expressly authorise States to ratify a part or parts
only of the treaty).
8
See the statement in the ILC by Ago, YBILC 1965 I 84, para. 56.
9
See the observation by the Swedish Government to the ILC in Waldock Report IV, YBILC
1965 II 42; the statements in the ILC by Ago, YBILC 1965 I 83, para. 41 ([i]t would
hardly be possible to coerce the will of the State by treating the ratication as applying
to the whole treaty. What could be said, however, was that ratication did not become
operative because it did not fulll a necessary condition. The State could then deposit a
new instrument if it wished the ratication to be valid); Ruda, ibid. 81, para. 21; and its
Chairman, Bartos, ibid. 83, para. 48.
10
Waldock in the ILC, YBILC 1962 I 116, para. 78; also in YBILC 1965 I 80, para. 6
([t]he eect in practice might be substantially the same); Ago, ibid. 84, para. 56 (it
would be a serious matter to provide for the possibility of partial ratication even where
the treaty did not contemplate it, for that would oer a means of circumventing the clauses
concerning reservations).
ZACHARIAS
240 article

articles; whereas partial consent a priori only envisages part of the treaty.11
Finally, the conditions and procedures in para. 1 appear less elaborate and
less strict than in Articles 1923 which, conversely, permit States a certain
degree of unilateral action.
The Revised General Act for the Pacic Settlement of International Disputes of 1949
(N. 1) expressly distinguishes between partial accession to the Revised General Act in
its Article 38, and reservations thereto in Article 39 (which sets out exhaustively the
content of all possible reservations in its subparas. 2[a]-[c]).

3. Treaty Permitting Choice of Diering Provisions (Para. 2)


6 As a special form of partial consent, para. 2 refers to a treaty which permits
a choice between diering provisions. Here, the State is confronted with
various provisions and the treaty impels it to choose those by which it intends
to be bound (as for instance in the European Revised Social Charter, N. 1).
Now, the consent of the State to be bound by this treaty is eective only if
it is made clear to which of the provisions the consent relates.12 An initial
expression of consent to be bound by the treaty which does not at the same time
specify the States choice is therefore defective and, indeed, without eect.13
The formulation made clear appears imprecise.14 It would indicate that informal,
express or implied, means of informing the other parties are possibleas long as all
other States eventually become aware which provisions will be binding on a particular
State. This allows for the possibility of a subsequent explanation where, for instance,
a State by an oversight failed to indicate which of the alternatives it preferred when
depositing its instrument of ratication.15

11
Statement in the ILC by Ago, YBILC 1965 I 84, para. 56; also Jennings/Watts
N. 607.
12
ILC Report 1966, YBILC 1966 II 202l, para. 3. In its observations to the ILC, the Gov-
ernment of Luxembourg suggested the term alternative texts instead of diering texts,
Waldock Report IV, YBILC 1965 II 41. The term diering in Article 17 appears more
pertinent since a State may choose to take over all provisions.
13
See the statement in the ILC by its Chairman Bartos, YBILC 1965 I 261, para. 87; and
Waldock, ibid. 262, para. 95.
14
See also the formulation in Article 18, N. 15 (made its intention clear not to become a
party to the treaty).
15
See the statements in the ILC by its Chairman Bartos, ibid. 83, para. 51; and Tunkin,
ibid. 261, para. 86.
ZACHARIAS
consent to be bound by part of a treaty 241

C. CONTEXT

1. Relationship to Other Provisions


The relationship between Article 17 and Articles 1923 (q.v.) on reservations 7
has been described above (N. 5).

2. Matters Not Dealt With


Article 17 is to be distinguished from treaty provisions giving a State an option 8
which it is free to invoke or to decline, e.g., means of settling disputes arising
under a treaty.16 Furthermore, partial ratication must be distinguished from
the situation where a State aims at modifying a treaty while ratifying it. This
is equivalent to refusal of ratication coupled with a fresh oer which may
or may not be accepted. There is no obligation for the other parties to enter
into fresh negotiations.17

3. Customary Basis of Article 17


While the indivisibility of a treaty remains the principle, the exceptions in 9
para. 1 andthough more modernin para. 2 appear to be generally accepted
and enjoy a customary basis.18

D. APPRECIATION

Common denominator of the dierent rules in Article 17 is that, exceptionally, 10


the State is not bound by the entire treatyeither because it has ratied only
certain parts (para. 1) or because the treaty oers a choice of provisions (para.
2). These rules make sense and certainly merit inclusion in the Convention.19
The question arises whether Article 17, relating to a form of consent to be
bound, should not have been placed before Article 16 which concerns one of
the nal stages in the treaty-making process.20

16
Aust, Modern Treaty Law 107.
17
Jennings/Watts N. 607.
18
Waldock in the ILC, YBILC 1962 I 53 para. 3 (in respect of para. 1).
19
Waldock, ibid. 74 ([para. 1 was] good law). Conversely, Tunkin considered that [para.
2] ought to be dropped, as instances of alternative texts were rare and the practice should
certainly not be encouraged. That being so, the best course was to keep silent, YBILC
1965 I 80.
20
See the structure employed by Jennings/Watts N. 607608.
ZACHARIAS
Article 18
Obligation not to defeat the object and
purpose of a treaty prior to its entry into force

A State is obliged to refrain from acts which would defeat the object and
purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting


the treaty subject to ratication, acceptance or approval, until it shall
have made its intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the
entry into force of the treaty and provided that such entry into force
is not unduly delayed.

Article 18 Obligation de ne pas priver un trait de son objet


et de son but avant son entre en vigueur

Un Etat doit sabstenir dactes qui priveraient un trait de son objet et de son but:

a) lorsquil a sign le trait ou a chang les instruments constituant le trait sous


rserve de ratication, dacceptation ou dapprobation, tant quil na pas manifest
son intention de ne pas devenir partie au trait; ou
b) lorsquil a exprim son consentement tre li par le trait, dans la priode qui
prcde lentre en vigueur du trait et condition que celle-ci ne soit pas ind-
ment retarde.

Artikel 18 Verpichtung des Nichtzuwiderhandelns


gegen Ziel und Zweck eines Vertrags vor seinem Inkrafttreten

Ein Staat ist verpichtet, sich aller Handlungen zu enthalten, die dem Ziel und
Zweck eines Vertrags zuwiderlaufen, wenn:

a) der den Vertrag unterzeichnet hat oder vertragsbegrndende Urkunden unter


Vorbehalt der Ratikation, Annahme oder Zustimmung ausgetauscht hat, bis
er seine Absicht kundgetan hat, nicht Vertragspartei zu werden; oder
obligation not to defeat the object and purpose of a treaty 243

b) er sein Einverstndnis, durch den Vertrag gebunden zu sein, ausgedrckt hat,


in der Zeit bis zum Inkrafttreten des Vertrages unter der Voraussetzung, dass
dieses Inkrafttreten nicht ber Gebhr verzgert wird.

ILC Draft 1966

Article 17Obligation of a State not to frustrate the object


of a treaty prior to its entry into force

A State is obliged to refrain from acts calculated to frustrate the object of a proposed
treaty when:

(a) It has agreed to enter into negotiations for the conclusion of the treaty, while
these negotiations are in progress;
(b) It has signed the treaty subject to ratication, acceptance or approval, until it
shall have made its intention clear not to become a party to the treaty;
(c) It has expressed its consent to be bound by the treaty, pending the entry into force
of the treaty and provided that such entry into force is not unduly delayed.

Materials:

WALDOCK Report I: Articles 5, 9, 10 and 12.


Minutes: YBILC 1962 I 117, 212, 258, 286.
ILC Draft 1962: Article 16.
WALDOCK Report IV: Article 17.
Minutes: YBILC 1965 I 87 , 262 f, 282 f.
ILC Draft 1965: Article 17.
Minutes: YBILC 1966 I/2 292, 326, 341.
ILC Draft 1966: Article 15.
Minutes: OR 1968 CoW 97 , 361; OR 1969 Plenary 29.

Vienna Conference Vote: 102:0:0

Selected Literature:

B-K
L. Boisson de Chazournes/A.-M. la Rosa/M.M. Mbengue, Article 18, in: Corten/Klein
(eds.) 589 ; P. Cahier, Lobligation de ne pas priver un trait de son objet et de son but avant
son entre en vigeur, in: Mlanges F. Dehousse (1979) I 31 ; J.S. Charme, The Interim
Obligation of Article 18 of the Vienna Convention on the Law of Treaties, George Washington
Journal of International Law and Economics, 25 (1991) 71 ; J.P. Cot, La bonne foi et la
conclusion des traits, Revue Belge 4 (1968) 140 ; D.J. Devine, Le caractre indivisible de
la Convention sur le Droit de la Mer et les implications de sa signature pour la Communaut
conomique Europenne et ses tats membres, RMC 1987 95 ; Ch.B. Fulda, Demokratie

ZACHARIAS
244 article

und Pacta sunt servanda (2003); H. Fujita, Provisional Observance of Unratied or Expired
Treaties on Disarmament, Kansai University Review of Law and Politics, 10 (1989) 1 ; M.J.
Glennon, The Senate Role in Treaty Ratication, AJIL 77 (1983) 257 ; J. Klabbers, How
to Defeat a Treatys Object and Purpose Pending Entry Into Force: Towards Manifest Intent,
Vanderbilt JTL 34 (2001) 283 .

M-V
P. McDade, The Interim Obligation Between Signature and Ratication: Issues Raised by
the Recent Actions of Signatories to the Law of the Sea Convention With Respect to the
Mining of the Deep Seabed, NILR 31 (1985) 5 ; W. Morvay, The Obligation of a State
Not to Frustrate the Object of a Treaty Prior to its Entry into Force. Comments on Art. 15
of the ILCs 1966 Draft Articles on the Law of Treaties, ZaRV 27 (1967) 451 ; J. Nisot,
Larticle 18 de la Convention de Vienne sur le droit des traits, Revue Belge 6 (1970) 499
; E. Orihuela Calatayud, Los tratados internacionales y su aplicacion en el tiempo:
Consideraciones sobre el efecto inicial de las disposiciones convencionales (2004); M.A.
Rogoff, The International Legal Obligations of Signatories to an Unratied Treaty, Maine
LR 32 (1980) 263 ; Id., The International Legal Obligations of Signatories to an Unratied
Treaty, in: The Law of Treaties (2004) 191 ; M.A. Rogoff/B.E. Gauditz, The Provisional
Application of International Agreements, Maine LR 39 (1987) 29 ; E.T. Swaine, Unsigning,
Stanford LR 55 (2003) 2061 ; R.F. Turner, Legal Implications of Deferring Ratication of
Salt II, Virginia JIL 21 (1981) 747 ; M.P. van Alstine, The Death of Good Faith in Treaty
Jurisprudence and a Call for Resurrection, Georgetown LJ 93 (2005) 1185 .

ZACHARIAS
obligation not to defeat the object and purpose of a treaty 245

CONTENTS
Paras.

A. Background ........................................................................................ 1
1. Introduction .................................................................................... 1
2. History ............................................................................................ 3
B. Interpretation of Article 18 ............................................................ 4
1. Nature and Scope of Obligation ....................................................... 4
2. Principle .......................................................................................... 9
a) Acts Defeating the Treatys Object and Purpose ............................ 10
b) Required Conduct ....................................................................... 13
3. Conditions (Paras. [a] and [b]) ......................................................... 15
a) Upon Signature of a Treaty (Para. [a]) .......................................... 15
b) After Having Expressed Consent (Para. [b]) ................................. 17
C. Context .............................................................................................. 18
1. Relationship to Other Provisions ...................................................... 18
2. Matters Not Dealt With ................................................................... 19
3. Customary Basis of Article 18 .......................................................... 20
D. Appreciation ....................................................................................... 21

A. BACKGROUND

1. Introduction
Early case-law on the conduct of States in the sense of Article 18 was stimu- 1
lated by the legal position of the Versailles Treaty after its signature in 1919,
but before its entry into force in 1920.1 In the Certain German Interests in
Polish Upper Silesia Case, Poland had contended that Germanys alienation
of property on territory which was to fall under Polish sovereignty, violated
obligations under the 1919 Treaty. The Court held that Germany undoubt-
edly retained until the actual transfer of sovereignty the right to dispose of
her property, and only a misuse of this right could endow an act of alienation

1
See the von Bismarck and Schwerdtfeger Cases, AD 2 (1923/24) 80 f, and 8183, respectively;
on the history see Kolb, Bonne foi 184 . For early literature, see B. Cheng, General
Principles of Law as Applied by International Courts and Tribunals (1953) 109 ; R. Ber-
nhardt, Vlkerrechtliche Bindungen in den Vorstadien des Vertragsschlusses, ZaRV 17
(1957/58) 651 ; J. Nisot, La force obligatoire des traits signs non encore ratis, JDI
1930 878 ; McNair, Law of Treaties 199 , 203.
ZACHARIAS
246 article

with the character of a breach of the Treaty.2 Occasionally, a treaty itself


expressly stipulated obligations before its entry into force.3
2 Article 18 nds its roots in Article 9 of the Harvard Draft on the Law of
Treaties of 1935 which stated:
under some circumstances . . . good faith may require that pending the coming into
force of the treaty the States shall, for a reasonable time after signature, refrain from
taking action which would render performance by any party of the obligations stipulated
impossible or more dicult.4

The respective commentary explained that the duty embodied in Article 9


was not of a legal kind and concerned exceptional cases and special circum-
stances.5

2. History
3 In the ILC, elements of Article 18 were discussed by Brierly who drew from
Article 9 of the Harvard Draft (N. 2) while concluding that the available
materials were of too fragmentary and inconclusive a nature to form the
basis of international law.6 Conversely, Lauterpacht and Fitzmaurice
both assumed that pre-treaty obligations were of a legal nature.7 Waldock
Report I took up the subject in 1962.8 The nal ILC Report 1966 contained
todays paras. (a) and (b) which appeared to be generally accepted; in an
additional paragraph, the Report stipulated the obligation for a State not to
frustrate the object of a treaty when . . . it has agreed to enter into negotiations
for the conclusion of the treaty, while these negotiations are in progress.9
This last clause attracted no support at the Vienna Conference in 1968
(N. 21),10 whereas paras. (a) and (b) found general approval and were only
occasionally criticised as being too vague or constituting extralegal obliga-
tions.11 A proposal by the UK delegation to delete the entire provision was

2
PCIJ (1926) Series A no. 7, 30.
3
Article 38 of the General Act of Berlin provided that, before its entry into force, the sig-
natories of this Act pledge themselves not to adopt any measure which would be contrary
to the stipulations of the said Act.
4
AJIL 29 (1935) Supplement 778.
5
Ibid. 780 f.
6
Brierly Report II, YBILC 1951 II 73; 1953 II 54, para. 21; on the history, see also Klab-
bers, Vanderbilt JTL 34 (2001) 305 .
7
Lauterpacht Report I, YBILC 1953 II 108; Fitzmaurice Report I, 1956 II 113, 122.
8
Waldock Report I, YBILC 1962 II 39, 175; Waldock Report IV, 1965 II 43 .
9
ILC Report 1966, YBILC 1966 II 202.
10
Deleted by 50 votes to 33, with eleven abstentions, OR 1968 CoW 106, para. 47.
11
OR 1968 CoW 97 .
ZACHARIAS
obligation not to defeat the object and purpose of a treaty 247

rejected.12 In 1969 only a small change was made to the provision which was
adopted by 102 votes to none.13

B. INTERPRETATION OF ARTICLE 18

1. Nature and Scope of Obligation


Article 18 refers in its title to a States obligation. The latter is, on the one hand, 4
of a contractual nature for States parties to the Convention. On the other,
Article 18 appears declaratory of customary law (N. 20), and the obligation
therefore also derives for all States from general international law.
While it may appear a petitio principii to refer in a legal norm to an obli- 5
gation, such reference can be explained with the controversy surrounding
the respective legal basis of various precursors of Article 18. The Harvard
Draft doubted the legal nature of such duties (N. 2), and various early ILC
drafts merely stipulated an obligation of good faith.14 Indubitably, Article
18 gives concrete and normative meaning to the principle of good faith
by protecting legitimate expectations which relations of this type generate
among States.15
The travaux prparatoires disclose the prevailing view of States and within the ILC,
namely that good faith was too imprecise a notion to serve in itself as a basis of legal
obligation.16 As the Court found in the Border and Transborder Armed Actions (Nica-
ragua/Honduras) Case, [good faith] is not in itself a source of obligation where none
would otherwise exist.17

12
By 74 votes to 14, with six abstentions, the vote being taken by roll-call, OR 1968 CoW
105; OR Documents 131, para. 164(i); see the statement of Sir Francis Vallat of the
UK delegation, ibid. 105, para. 44 (unacceptable in its existing form).
13
OR 1969 Plenary 29. The change was based on an amendment of the Polish delegation,
the words has exchanged instruments constituting the treaty were introduced in para.
(a), OR 1969 Plenary 29, para. 26.
14
E.g., the ILC Draft 1962, YBILC 1962 II 175; Waldock Report IV, YBILC 1965
II 45.
15
See statements by the delegations of India, Netherlands, Poland and Iraq, OR 1969 CoW
98 .; Cot, Revue Belge 4 (1968) 155; Rogoff, Maine LR 32 (1980) 291 ; Mller,
Vertrauensschutz 162 ; Zoller, Bonne foi 68 : Rosenne, Developments 149 at
n. 9. This conclusion by the present author, which was expressed in Villiger, Customary
International Law N. 469, is considered surprising by Klabbers, Vanderbilt JTL 34
(2001) 315.
16
E.g., the discussion in 1965, YBILC 1965 I 87 ; inter alia Bartos, ibid. 262 f (the obliga-
tion laid down in [Article 18] had its origin in the principle of good faith, but had since
become a legal obligation); Turner, Virginia JIL 21 (1981) 765 (legally binding).
17
ICJ Reports 1988 105, para. 94.
ZACHARIAS
248 article

6 The obligation under Article 18 arises in the situations mentioned in paras.


(a) and (b) (N. 15) prior to the treatys entry into force. It follows that it
is unnecessary, and somewhat imprecise, to speak of a retroactive eect of
pacta sunt servanda (Article 26, q.v.) of the particular treaty,18 since Article 18
deals with situations where the treaty has not entered into force. Similarly, it
cannot be postulated that Article 18 may only be invoked ex post facto after
the treatys ratication or entry into force; this interpretation would render
Article 18 meaningless, since it is uncertain upon signature whether or not
a treaty will eventually enter into force.19
7 Independently of Article 18 (and its declaratory nature, N. 20), States parties
to the treaty awaiting its entry into force are in any event obliged to apply all
those treaty rules which are declaratory of customary law (Issues of Custom-
ary International Law, N. 35). It follows that the functions of Article 18 are
limited to non-declaratory rules of a treaty awaiting its entry into force.
8 Finally, in the sense of a venire contra factum proprium it would appear that
Article 18 cannot be invoked by those signatories or parties to a treaty which
have themselves supported or acquiesced in the defeating acts.

2. Principle
9 In a much criticised formulation,20 the opening sentence in Article 18 obliges
a State to refrain from acts which would defeat the object and purpose
of a treaty.

a) Acts Defeating the Treatys Object and Purpose


10 The terms object and purpose correspond with those employed throughout
the Convention (e.g., Preamble, N. 2; Article 31, N. 1114). They refer to the
reasons for which States parties or signatories concluded a treaty, and the
continuing functions and raison dtre of the treaty.21 Since treaties often

18
E.g., I. Lukashuk, The Principle pacta sunt servanda and the Nature of Obligation under
International Law, AJIL 83 (1989) 513 ., 515 f. See the statement in Vienna by the
Belgian delegation, CoW 1968 101, para. 57.
19
See the statements in the ILC by Waldock, YBILC 1962 I 97, para. 13; Ago, ibid. 92,
para. 61; Bartos, ibid. 93, para. 78; contra Castrn, ibid. 89, para. 14. Also Kolb, Bonne
foi 208; Cahier, Mlanges Dehousse 33.
20
See OConnell, International Law I 224 (the provision . . . is more rigid [than good faith]
in that it omits the relevance of circumstances, more relaxed in that it relates the obligation
only to the object and purpose); Cahier, ibid. 35; Morvay, ZaRV 27 (1967) 156;
Mller, Vertrauensschutz 159.
21
See the denition in the Reservations to Genocide Advisory Opinion, ICJ Reports 1951 27;
Crnic-Grotic, Asian YBIL 7 (1997) 152 .
ZACHARIAS
obligation not to defeat the object and purpose of a treaty 249

have many purposes, Article 18 will also refer to the object and purpose of
individual treaty rules.22
A States act will defeat the treatys object and purpose if it renders meaning- 11
less subsequent performance of the treaty, and its rules.23 Other States would
not have concluded the treaty under the same conditions, had they known
that such acts would be undertaken. Of course, the mere failure to ratify a
treaty does not amount to such an act.24
Typical examples of acts which may defeat a treatys object and purpose 12
are:25
a disarmament treaty obliges parties to reduce their armies by one third; before its
entry into force, one signatory increases its army;26
a treaty stipulates that a party imports particular goods from another party; before its
entry into force, a signatory imports large quantities of goods from third States;27
a State promises to deliver products of a forest or mine; before entry into force of the
treaty, the State destroys the forest or mine.28

b) Required Conduct
Article 18 obliges a State to refrain from such conduct, thus envisaging 13
primarily a passive conduct of States. As the ILC pointed out in 2007 in the
context of reservations, [para. (a)] does not oblige a signatory State to respect
the treaty, but merely to refrain from rendering the treaty inoperative prior
to its expression of consent to be bound.29 However, comments in the ILC
and subsequent State practice conrm that the object and purpose of Article
18 could indeed exceptionally call for active conduct, e.g., to maintain the
pre-contractual status quo on which basis a treaty was concluded.30 Still, even

22
Contra Klabbers, Vanderbilt JTL 34 (2001) 293.
23
Though not impossible, see the statement in Vienna by the Expert Consultant, Sir
Humphrey Waldock, OR 1968 CoW 104, para. 26; versus Rogoff, Maine LR 32 (1980)
297 f; see the narrower interpretation by Aust, Modern Treaty Law 94 (which would
prevent it being able fully to comply with the treaty); Turner, Virginia JIL 21 (1981
(irreversible).
24
But see C.A. Bradley in ASIL Insight, May/June 2002 at 5, 9, with reference to the US
administrations refusal to ratify the Rome Statute of the International Criminal Court.
25
See also the examples in Aust, Modern Treaty Law 119; Kolb, Bonne foi 183 f.
26
See Lachs in the ILC, YBILC 1965 I 97, para. 39.
27
Ago, ibid. 96, para. 29; the example given by Waldock, OR 1968 CoW 104, para. 26.
28
Harvard Draft, AJIL 29 (1935) Supplement 782.
29
See the Commentary to the Guideline 3.1.5 on the Incompatibility of a Reservation with
the Object and Purpose of the Treaty, YBILC 2007 II/2 67, para. 2 (original italics); see
also Articles 1923Subsequent Developments, N. 3.
30
See the statement in the ILC by Lachs, YBILC 1965 I 97, para. 39; the written reply in
1980 by the Deputy Legal Advisor of the US Department of State, reproduced in AJIL 74
(1980) 933, according to which the obligation mentioned in Article 18 could, in theory,
ZACHARIAS
250 article

a wider notion of a States conduct required under Article 18 cannot per se


generate actual treaty obligations. Otherwise, the notion of a treatys entry
into force would lose its legal relevance.
In the example mentioned in N. 12, where a signatory promises to deliver products of
a forest or mine, a State would need to provide for the upkeep of the forest or mine so
as not to jeopardize the production of goods stipulated in the treaty.
14 Article 18 does not require that the acts defeating the object and purpose of a
treaty are committed intentionally in bad faith (e.g., culpa in contrahendo).31
This need not be stated, since this provision, and indeed the Convention as
a whole, is silent on the question of any responsibility of States for such acts
(Article 73, q.v.).32

3. Conditions (Paras. [a] and [b])

a) Upon Signature of a Treaty (Para. [a])


15 Para. (a) obliges a State to refrain from the acts (N. 1012) if it has signed
the treaty or has exchanged instruments constituting the treaty subject
to ratication, acceptance, or approval. These terms are further explained
in Articles 1117 (q.v.). Thus, the State in question has not expressed its
consent to be bound by a treaty (as in para. [b], N. 17) and is free at any
time to make its intention clear not to become a party to the treaty, i.e.,
either by means of an express statement or through implied conduct,33 in
which case Article 18 can no longer be invoked. This freedom of States does
not diminish the value of Article 18, since the obligation extends as long as
such intention has not become clear.34

necessitate preratication application of provisions, if any, where non-application from


the date of signature would defeat the object and purpose of the treaty; contra Rogoff,
Maine LR 32 (1980) 297.
31
Swaine, Stanford LR 55 (2003) 2071.
32
See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR
1968 CoW 104, para. 27; Rogoff, ibid. 298 f; dierently Mller, Vertrauensschutz
162 at n. 110. An intention of bad faith cannot be deduced from the text of Article 18
(acts which would defeat), as compared with Article 15 of the ILC Draft 1966 (acts
tending to frustrate). This change merely tightens up the language, Sinclair, Vienna
Convention 43; statement in Vienna by Yasseen, Chairman of the Drafting Committee,
OR 1968 CoW 361, para. 101; Cot, Revue Belge 4 (1968) 157.
33
The ILC Draft 1962 required a State to have signied that it does not intend to become
a party. The Malaysian amendment at the Conference, OR Documents 131 (suggesting
expressed its intention in the clearest terms), was not adopted in Vienna.
34
Per contra, the statement of the Iranian delegation in Vienna, OR 1968 CoW 101, para.
60; OConnell, International Law I 224, for whom it remains unclear if a breach of the
Article can be alleged after the intention not to ratify has been made known, when the
breach occurred before this date.
ZACHARIAS
obligation not to defeat the object and purpose of a treaty 251

It follows that the obligation in Article 18 is dependent on the subjective 16


intention of the individual State not to become a party to the treaty, and on
the awareness of other States of this intention. An earlier draft of the ILC had
envisaged a more objective test where the obligation was to be maintained
for a reasonable period of time.35
Article 18 has been criticised as appearing contradictory in that a State may disclose
its intention not to become a party to the treaty by committing defeating acts.36 This
interpretation overlooks the purpose of Article 18 which is precisely that States avoid
such acts and make their intentions clear by other means.

b) After Having Expressed Consent (Para. [b])


Para. (b) follows para. (a) in time and prohibits the relevant acts (N. 1012) 17
after a State has expressed its consent to be bound by the treaty. The State
is bound by Article 18 pending the entry into force of the treaty (Article
24, q.v.). Contrary to para. (a) (N. 15), para. (b) does not provide that a State
in this situation may withdraw from the obligations of Article 18 on its own
accord. It envisages a more objective assessment of the reasonable expecta-
tions of all the contracting States. Thus, the obligation in Article 18 applies
in para. (b) only for as long as, and to the extent that, the treatys entry into
force is not unduly delayed. The period of time is relative, depending on the
given circumstances.37 In other words, a State is no longer obliged to refrain
from the relevant acts once a reasonable period of time has elapsed without
the treaty having come into force. However, contrary to para. (a) (made its
intention clear), para. (b) does not provide for the procedure, if any, required
for the State to withdraw from its obligations under Article 18. One can
nevertheless assume that, as in para. (a), a State may make its intention clear
to withdraw from its obligations to refrain from defeating acts under Article
18 either by express statement or through implied conduct.38

35
Article 9, subpara. 2(c) of Waldock Report I, YBILC 1962 II 46. Unreasonable postpone-
ment of ratication may also oer an indication as to the signatorys intention, Mller,
Vertrauensschutz 163.
36
See the statement in Vienna by the French delegation, OR 1968 CoW 100, para. 45;
Rogoff, Maine LR 32 (1980) 296 f; Verdross in the ILC, YBILC 1965 I 262, para.
99; the example cited by Swaine, Stanford LR 55 (2003) 2082 (i.e., at UNCLOS III the
French delegate stated that the most obvious way for a State to make clear its intention
not to become a party to the treaty was for it to frustrate the object and purpose).
37
See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR
1969 Plenary 29, para. 28. When Waldock Report IV introduced the gure of ten years,
this was strongly criticised within the ILC, YBILC 1965 I 87 .
38
But see Rosenne, EPIL 4 (2000) 935, in the context of Article 18: once given, a States
consent to be bound by a treaty cannot be withdrawn unless a reasonable period elapses
without the treaty entering into force. With respect, it is doubtful whether Article 18
expresses itself on the withdrawal of consent.
ZACHARIAS
252 article

C. CONTEXT

1. Relationship to Other Provisions


18 Article 18 relates to a particular conduct of States prior to a treatys entry into
force (N. 12). The provision goes less far than Article 25 (q.v.) concerning
the provisional application of a treaty.39 It has also been argued above (N. 6)
that Article 18 does not amount to a retroactive application of the rule pacta
sunt servanda in Article 26.

2. Matters Not Dealt With


19 The ILC originally envisaged a States obligation not to frustrate the object
and purpose of a treaty also during negotiations of the treaty. The matter
was dropped in Vienna (N. 3) and lies outside Article 18.40 The proposal
attracted mainly negative reactions by States and most likely did not reect
customary law.41

3. Customary Basis of Article 18


20 In 1966 the ILC generally considered that the provision leading to todays
Article 18 had a basis in customary law.42 Up to 1969, a substantial major-
ity of States supported the provision which was adopted unanimously in
Vienna (N. 3).43 The few instances of court and State practice after 1969
are suciently consistent and constant.44 In view thereof, Article 18 may be
considered declaratory of customary law.45

39
See also the opinion of the US Department of State, AJIL 74 (1980) 933.
40
Waldock Report V 1965 II 44, para. 1; OR 1968 CoW 106, paras. 47 ; the North Sea
Cases, ICJ Reports 1969 47; generally, Kolb, Bonne foi 199 f.
41
But see Mller, Vertrauensschutz 161, versus Cahier, Mlanges Dehousse 32.
42
E.g., the ILC Draft 1966, YBILC 1966 II 202, cited above, N. 2.
43
See Governments observations in YBILC 1966 II 279 , and their statements at the Vienna
Conference in 1968, OR 1968 CoW 97 . For Bindschedler of the Swiss delegation
these provisions conformed to general rules of international law, ibid. 97, para. 5.
44
See Court of the First Instance of the European Communities in Opel Austria GmbH v.
Council of the European Union, ILR 113 (1999) 323; the US Department of State, referring
to Article 18 as being widely recognized in customary international law, International
Lawyer 6 (1972) 431; the summary of the US and former Soviet practice by Turner,
Virginia JIL 21 (1981) 766 ; the Canadian Government in CYBIL 18 (1978) 366; the
Swiss Government in SJIR 37 (1977) 150 f; the instances of practice mentioned by Kolb,
Bonne foi 186 ; T. Treves, Lentre en vigueur de la Convention des Nations Unies sur
le droit de la mer et les conditions de son unilateralisme, AFDI 39 (1993) 850 , 865 f,
and 869 f.
45
Similarly Boisson de Chazournes/A.-M. la Rosa/M.M. Mbengue N. 21 (larticle 18,
alina a] rete un principe de droit international).
ZACHARIAS
obligation not to defeat the object and purpose of a treaty 253

It is true that authors have been more critical of Article 18. However, both OConnell,
who has argued that Article 18 goes further than customary law would appear to go,46
and Sinclair have studied the provision only against the backdrop of pre-ILC develop-
ments. Similarly, Cahier has insuciently considered the measure of support of States
which Article 18 commanded at the 1968/1969 Vienna Conference.48

D. APPRECIATION

Article 18 plays an important role in view of the backlog of many treaties which 21
have not entered into force, and where States have remained mere signatories
for a prolonged period of time.49 The period after a treatys signature and
prior to its entry into force typically generates expectations among the States
concerned which require protection. Article 18 circumvents the pitfalls of
relying solely on good faith by elevating the required conduct of States to the
level of a legal obligation which it denes precisely and clearly. Any resulting
rigidity is compensated by the subjective assessment provided for in para. (a)
(N. 16) and the more objective assessment in para. (b) (N. 17), both of which
oer the necessary exibility at this early stage of a treatys life.50

46
International Law I 223; similarly Nisot, Revue Belge 6 (1970) 503.
47
Vienna Convention 43; this author participated in the UK delegation in Vienna, which
attempted to bring about deletion of the future Article 18 (N. 2).
48
Mlanges Dehousse 37 and passim.
49
Swaine, Stanford LR 55 (2003) 2085.
50
See Kohen, RGDIP 104 (2000) 597 (la solution nalement retenue nous parat la plus
judicieuse); Aust, Modern Treaty Law 117 ([t]he requirement in [a] is much easier to
apply).
ZACHARIAS
Section . Reservations
Article 19
Formulation of reservations

A State may, when signing, ratifying, accepting, approving or acceding


to a treaty, formulate a reservation unless:

(a) the reservation is prohibited by the treaty;


(b) the treaty provides that only specied reservations, which do not
include the reservation in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reserva-
tion is incompatible with the object and purpose of the treaty.

Article 19 Formulation des rserves

Un Etat, au moment de signer, de ratier, daccepter, dapprouver un trait ou


dy adhrer, peut formuler une rserve, moins:

a) que la rserve ne soit interdite par le trait;


b) que le trait ne dispose que seules des rserves dtermines, parmi lesquelles
ne gure pas la rserve en question, peuvent tre faites; ou
c) que, dans les cas autres que ceux viss aux alinas a) et b), la rserve ne soit
incompatible avec lobjet et le but du trait.

Artikel 19 Anbringen von Vorbehalten

Ein Staat kann bei der Unterzeichnung, Ratikation, Annahme oder Genehmigung
eines Vertrags oder beim Beitritt einen Vorbehalt anbringen, sofern nicht

a) der Vertrag den Vorbehalt verbietet;


b) der Vertrag vorsieht, dass nur bestimmte Vorbehalte gemacht werden drfen,
zu denen der betreende Vorbehalt nicht gehrt, oder
c) in den unter lit. a) oder b) nicht bezeichneten Fllen der Vorbehalt mit Ziel
und Zweck des Vertrags unvereinbar ist.

258 article

ILC Draft 1966

Article 16Formulation of reservations

A State may, when signing, ratifying, accepting, approving or acceding to a treaty,


formulate a reservation unless:

(a) the reservation is prohibited by the treaty;


(b) the treaty authorises specied reservations which do not include the reserva-
tion in question; or
(c) in cases where the treaty contains no provision regarding reservations, the
reservation is incompatible with the object and purpose of the treaty.

Materials:

WALDOCK Report I: Articles 17, 18 and 19.


Minutes: YBILC 1962 I 139 , 172 , 287 .
ILC Draft 1962: Article 18.
WALDOCK Report IV: Article 18.
Minutes: YBILC 1965 I 144 , 263 , 283.
ILC Draft 1965: Article 18.
Minutes: YBILC 1966 I/2 295, 326, 340.
ILC Draft 1966: Article 16.
Minutes: OR 1968 CoW 106 , 125 , 425 f; OR 1969 Plenary 28 .

Vienna Conference Vote: 92:4:7

Selected Literature:

A-C
S.S. kermark, Reservation Clauses in Treaties Concluded Within the Council of Europe,
ICLQ 48 (1999) 479 ; D.R. Anderson, Reservations to Multilateral Conventions: A
Re-Examination, ICLQ 13 (1964) 450 ; R. Baratta, Gli eetti delle riserve ai trattati
(1999); Id., Should Invalid Reservations to Human Rights Treaties be Disregarded?
EJIL 11 (2000) 413 ; R. Bindschedler, Treaties, Reservations, EPIL 4 (2000) 965 ;
J. Bonet Perez, Las reserves a los tratados internacionales (1996); W. Bowett, Reservations
to Non-Restricted Multilateral Treaties, BYBIL 48 (19761977) 67 ; C.A. Bradley/J.L.
Goldsmith, Treaties, Human Rights, and Conditional Consent, UPLR 149 (2000) 399
; I. Buffard/K. Zemanek, The Object and Purpose of a Treaty: An Enigma? Austrian
RIEL 3 (1998) 311 ; F. Cede, European Responses to Questionable Reservations, in:
W. Benedek et al. (eds.), Development and Developing International and European Law,
Essays in Honour of K. Ginther (1999) 21 ; M. Coccia, Reservations to Multilateral
Treaties on Human Rights, California WILJ 15 (1985) 1 ; G. Cohen-Jonathan, Les
rserves la Convention europenne des droits de lhomme: propos de larrt Belilos
du 29 avril 1988, RGDIP 93 (1989) 272 ; J. Combacau, Logique de la validit contre
logique de lopposabilit dans la Convention de Vienne sur le droit des traits, in: Le
droit international au service de la paix, de la justice et du dveloppement. Mlanges
formulation of reservations 259

M. Virally (1991) 195 ; F. Coule, A propos dune controverse autour dune codication
en cours: les ractions aux rserves incompatibles avec lobjet et le but des traits de protec-
tion des droits de lhomme, in: Liberts, justice, tolrance. Mlanges en hommage au doyen
G. Cohen-Jonathan (2004) I 375.

D-H
C. Daz Barrado, Reservas a la Convencin sobre tratados entre estados: declaraciones,
reservas y objeciones a las reservas, formuladas a la Convencin de Viena sobre el Derecho
de los tratados de 1969 (1991); R.W. Edwards, Reservations to Treaties, Michigan JIL
10 (1989) 362 ; G.M. Ferreira, The Impact of Treaty Reservations on the Establish-
ment of an International Human Rights Regime, CILJ Southern Africa 38 (2005) 147
; J.-F. Flauss, Note sur le retrait par la France des rserves aux traits internationaux,
AFDI 32 (1987) 857 ; J.A. Frowein, Reservations and the International ordre public, in:
J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century.
Essays in Honour of K. Skubiszewski (1996) 403 ; G. Gaja, Reservations to Treaties and
the Newly Independent States, ItalYBIL 1 (1975) 52 ; Id., Unruly Treaty Reservations, in:
Le droit international lheure de sa codication. Etudes en lhonneur de R. Ago (1987)
I 307 ; M.F. Gennarelli, Le riserve ai trattati internazionali (2001); Th. Giegerich,
Treaties, Reservations. Addendum 1998, EPIL 4 (2000) 968 ; E. Gttling, Vorbehalte
zu internationalen Vertrgen in der sowjetischen Vlkerrechtstheorie und Vertragspraxis
(1967); R. Goodman, Human Rights Treaties, Invalid Reservations and State Consent, AJIL
96 (2002) 559 ; M. Heymann, Einseitige Interpretationserklrungen zu multilateralen
Vertrgen (2005); P. Hilpold, Das Vorbehaltsregime der Wiener Vertragsrechtskonvention,
AVR 34 (1996) 376 ; F. Horn, Reservations and Interpretative Declarations to Multilateral
Treaties (1998); D.N. Hylton, Default Breakdown: The Vienna Convention on the Law
of Treaties: Inadequate Framework on Reservations, Vanderbilt JTL 27 (1994) 419 .

I-K
P.H. Imbert, La question des rserves dans la dcision arbitrale du 30 juin 1977 relative
la dlimitation du plateau continental entre la Rpublique franaise et le Royaume-Uni
de Grande Bretagne et dIrlande du Nord, AFDI 72 (1978) 29 ; Id., Les rserves aux
traits multilatraux (1979); J. King Gamble, Reservations to Multilateral Treaties: A
Macroscopic View of State Practice, AJIL 74 (1980) 372 ; J. Klabbers, Accepting the
Unacceptable? A New Nordic Approach to Reservations to Multilateral Treaties, Nordic JIL
69 (2000) 179 ; E. Klein, A Comment on the Issue of Reservations to the Provisions of
the Covenant Representing (Peremptory) Rules of General International Law, in: Ziemele,
Reservations 152 ; P.T.B. Kohona, Some Notable Developments in the Practice of the
UN Secretary-General as Depositary of Multilateral Treaties: Reservations and Declara-
tions, AJIL 99 (2005) 433 ; K. Korkelia, New Challenges to the Regime of Reservations
under the International Covenant on Civil and Political Rights, EJIL 13 (2002) 437 ;
R. Khner, Vorbehalte zu multilateralen vlkerrechtlichen Vertrgen (1986); J. Kyongun
Koh, Reservations to Multilateral Treaties: How International Doctrine Reects World
Vision, Harvard ILJ 23 (1982) 71 .

L-M
V. Lamm, The Multilateral Treaty Reservation Revisited, Acta Juridica Hungarica 47 (2006)
331 ; L. Lijnzaad, Reservations to UN-Human Rights Treaties: Ratify and Ruin? (1995);
U. Linderfalk, On the Meaning of the Object and Purpose Criterion, in the Context
of the Vienna Convention on the Law of Treaties, Article 19, Nordic JIL 72 (2003)
429 ; Id., Reservations to Treaties and Norms of jus cogensa Comment on Human
Rights Committee General Comment no. 24, in: Ziemele, Reservations 213 ; R.St.J.
Macdonald, Reservations under the European Convention on Human Rights, RBDI 21
260 article

(1988) 429 ; F. Majoros, Das aktuelle Problem der Gegenseitigkeit bei Vorbehalten:
von der II. Haager Friedenskonferenz ber die Wiener Vertragsrechtskonvention bis zur
Resolution von Dijon (1981), Friedenswarte 66 (1986) 216 , and 67 (1987) 82 .; Id.,
Le rgime de rciprocit de la Convention de Vienne et les rserves dans les Conventions
de La Haye, JDI 101 (1974) 73 ; S. Marks, Reservations Unhinged: The Belilos Case
Before the European Court of Human Rights, ICLQ 39 (1990) 300 ; E.K. Martens,
Unzulssige Vorbehalte zur Menschenrechtskonvention. Anmerkungen zur Diskussion, in:
J. Ipsen/E. Schmidt-Jortzig, RechtStaatGemeinden, Festschrift fr D. Rauschning
(2001) 351 ; T.L. McDorman, Reservations and the Law of the Sea Treaty, Journal
MLC 13 (1981) 481 ; D.M. McRae, The Legal Eect of Interpretative Declarations,
BYBIL 49 (1978) 155 .

N-R
M.K. Nawaz, The International Law Commissions Views on the Subject of Reservations
to Multilateral Conventions, IJIL 1 (1960) 100 ; L.D.M. Nelson, Declarations, State-
ments and Disguised Reservations with Respect to the Convention on the Law of the
Sea, ICLQ 50 (2001) 767 ; J. Nisot, Les rserves aux traits de la Convention de Vienne
du 23 mai 1969, RGDIP 77 (1973) 200 ; A. Pellet, Article 19, in: Corten/Klein
(eds.) 641 ; Id., La C.I.J. et les rserves aux traitsremarques cursives sur une rvolu-
tion inacheve, in: Liber Amicorum Judge Sh. Oda (2002) 481 ; Id., Les rserves aux
conventions sur le droit de la mer, in: La mer et son droit. Mlanges oerts L. Lucchini
et J.-P. Quneudec (2003) 505 ; Cl. Pilloud, Reservations to the Geneva Conventions
of 1949 (1977); C.L. Piper, Reservations to Multilateral Treaties: The Goal of Universal-
ity, Iowa LR 71 (1985) 295 ; J. Quel Lopz, Las reservas a los tratados internacionales:
un examen de la practica espaola (1991); C. Redgwell, Universality or Integrity? Some
Reections on Reservations to General Multilateral Treaties, BYBIL 64 (1993) 245 ;
R. Riquelme Cortado, Las reservas a los tratados: lagunas y ambigedades del Regimen
de Viena (2004); J. Ruda, Reservations to Treaties, RC 146 (1975 III) 95 .

S
A. Sassi, General Reservations to Multilateral Treaties, in: T. Treves (ed.), Six Studies
on Reservations, Communicazioni e Studi 22 (2002) 91 ; W. Schabas, Reservations
to Human Rights Treaties: Time for Innovation and Reform, CYBIL 32 (1994) 39 ;
B. H.B. Schpp-Schilling, Reservations to the Convention on the Elimination of all
Forms of Discrimination against Women: An Unresolved Issue or (No) New Developments?
In: Ziemele, Reservations 8 ; Th. Schweisfurth, Vorbehalte zu internationalen Vertrgen
unter besonderer Bercksichtigung der stlichen Vertragstheorie, Internationales Recht und
Diplomatie 1970 II 46 ; A. Seibert-Fohr, The Potentials of the Vienna Convention on
the Law of Treaties with Respect to Reservations to Human Rights Treaties, in: Ziemele,
Reservations 183 ; D. Shelton, State Practice on Reservations to Human Rights Treaties,
CHRYB 1983 205 ; B. Simma, Reservations to Human Rights Treaties: Some Recent
Developments, in: G. Hafner et al. (eds.), Liber amicorum I. Seidl-Hohenveldern
(1998) 659 ; B. Srinivas, Indias Reservations to Human Rights Treaties, IJIL 44 (2004)
749 ; L. Sucharipa-Behrmann, The Legal Eects of Reservations to Multilateral Trea-
ties, Austrian RIEL 1 (1996) 67 ; E.T. Swaine, Reserving, Yale JIL 31 (2006) 307 ;
R. Szafarz, Reservations to Multilateral Treaties, Polish YBIL 24 (1970) 293 .

T-Z
A. Tanzi, The Resumed Codification of the Law of Reservations to Treaties, in:
T. Treves (ed.), Six Studies on Reservations, Communicazioni e Studi 22 (2002) 7 ;
G. Teboul, Remarques sur les rserves aux conventions de codication, RGDIP 86 (1982)
679 ; Ch. Tomuschat, Admissibility and Legal Eects of Reservations to Multilateral
formulation of reservations 261

Treaties. Comments on Articles 16 and 17 of the ILCs 1966 Draft Articles on the Law
of Treaties, ZaRV 27 (1967) 463 ; H.D. Treviranus, Vorbehalte zu mehrseitigen
VertrgenWohltat oder Plage? GYBIL 25 (1982) 515 ; Y. Tyagi, The Conict of
Law and Policy on Reservations to Human Rights Treaties, BYBIL 71 (2000) 181 ;
J. Verhoeven, Droit des traits, rserves et ordre public (jus cogens), JT 1994 765 ; S.M.
Williams, Reections on the Law of Treaties: Customary Law, Dispute Settlement, jus
cogens, Reservations, in: P.B. Casella (ed.), Liber amicorum G. Do Nascimento e Silva
(2000) 537 ; H.-D. Wolkwitz, Vorbehalte zu Kollektivvertrgen (1968); K. Zemanek,
Some Unresolved Questions Concerning Reservations in the Vienna Convention on the
Law of Treaties, in: J. Makarczyk (ed.), Essays in International Law in Honour of Judge
M. Lachs (1984) 323 .
262 article

CONTENTS
Paras.

A. Background . ....................................................................................... 1
1. Introduction .................................................................................... 1
2. History ............................................................................................ 3
B. Interpretation of Article 19 ............................................................ 6
1. Scope ............................................................................................... 6
2. Freedom to Make Reservations ........................................................ 9
3. Reservations Prohibited by the Treaty (Para. [a]) .............................. 10
4. Specied Reservations Excluding Other Reservations (Para. [b]) ...... 11
5. Incompatibility With the Treatys Object and Purpose (Para. [c]) ..... 12
C. Context .............................................................................................. 15
1. Relationship to Other Provisions ..................................................... 15
2. Matters Not Dealt With
(see Articles 1923Subsequent Developments)
3. Declaratory Nature of Article 19
(see Articles 1923Subsequent Developments)
D. Reservations to the Convention ..................................................... 16
E. Proposals for Amendment
(see Articles 1923Subsequent Developments)
F. Appreciation
(see Articles 1923Subsequent Developments)

A. BACKGROUND

1. Introduction
1 Two divergent views existed on the question to what extent States parties to
a multilateral treaty were required to consent to a States reservation to the
treaty in order for it to be eective. The more traditional view required the
acceptance of all States for the reservation to take eect. If only one failed
to accept, this would exclude the reserving State from the whole treaty and
from any concomitant treaty relations with all other treaty parties. Thus,
for the 1935 Harvard Draft, a State could only make a reservation if all
other States . . . consent to its so doing; lacking such consent, the State desir-
ous of making the reservation must either abandon that desire . . . or else
formulation of reservations 263

remain outside the treaty.1 For the other, more recent South American
view, the refusal by one contracting State to accept a reservation created a
bilateral relationship: it excluded the operation of the treaty solely between
that party and the party making the reservation.2 However, the reserving
State remained a party to the treaty in respect of all other States accepting
the reservation.3
The subject of reservations to multilateral treaties lay at the heart of the 2
Courts 1951 Reservations to Genocide Advisory Opinion. The background
to the case concerned reservations made by certain States to the 1948
Convention on the Prevention and Punishment of the Crime of Genocide;
when other States objected, the UN Secretary-General, following traditional
practice (N. 1), informed the reserving States that they could not become
parties to the Convention. In 1950 the UN General Assembly decided to
request an advisory opinion from the Court. The latter did not accept the
traditional doctrine when it replied to the various questions as follows:
On Question I

(a) State which has made and maintained a reservation which has been objected
to by one or more of the parties to the Convention but not by others, can be
regarded as being a party to the Convention if the reservation is compatible
with the object and purpose of the Convention; otherwise, that State cannot be
regarded as being a party to the Convention;

On Question II

(a) . . . if a party to the Convention objects to a reservation which it considers to


be incompatible with the object and purpose of the Convention, it can in fact
consider that the reserving State is not a party to the Convention;

1
Commentary on Article 14, AJIL 29 (1935) Supplement 870. See on pre-ILC litera-
ture: H.W. Malkin, Reservations to Multilateral Conventions, BYBIL 7 (1926) 141
; M. Owen, Reservations to Multilateral Treaties, Yale LJ 38 (19281929) 1086 ;
R. Genet, Les reserves dans les traits, Revue DISDP 10 (1932) 95 , 232 , 308
; M.O. Hudson, Reservations to Multipartite International Instruments, AJIL 32
(1938) 330 ; C.G. Fenwick, Reservations to Multilateral Treaties, AJIL 45 (1951)
145 ; G. Fitzmaurice, Reservations to Multilateral Conventions, ICLQ 2 (1953) 1 ;
A. Belaunde Moreyra, Las reservas a las convenciones multilaterales, Revista peruana
de derecho internacional 14 (1954) 14 , 153 ; J. Bentz, La validit des rserves aux
traits internationaux multilatraux (1954); E. Vitta, Le riserve nei trattati (1957);
K. Holloway, Les rserves dans les traits internationaux (1958); D. Kappeler, Les
rserves dans les traits internationaux (sic) (1958); O. Schachter, The Question of
Treaty Reservations at the 1959 General Assembly, AJIL 54 (1960) 372 ; R.P. Anand,
Reservations to Multilateral Conventions, IJIL 1 (1960) 84 ; W.W. Bishop, Reservations
to Treaties, RC 103 (1961 II) 245 . On this Section, Pellet, Article 19, N. 2 .
2
See the summary in Ruda, RC 146 (1975 III) 115 .
3
Bindschedler, EPIL 4 (2000) 965 f; ILC Report 1966, YBILC 1966 II 203, para.
2; Yasseen in the ILC, YBILC 1962 I 161 para. 7. On the history, Sinclair, Vienna
Convention 54 .
264 article

(b) . . . if, on the other hand, a party accepts the reservation as being compatible
with the object and purpose of the Convention, it can in fact consider that the
reserving State is a party to the Convention;

On Question III

(a) . . . an objection to a reservation made by a signatory State which has not yet rati-
ed the Convention can have the legal eect indicated in the reply to Question
I only upon ratication. Until that moment it merely serves as a notice to the
other State of the eventual attitude of the signatory State;
(b) . . . an objection to a reservation made by a State which is entitled to sign or
accede but which has not yet done so, is without legal eect.

2. History
3 The rst three ILC Rapporteurs did not in their proposals on reservations
to treaties take over the principles elaborated by the Court (N. 2). Brierly
Report II of 1951 proposed the strict unanimity rule.4 Lauterpacht Report
II of 1954 also proceeded from the unanimity rule, though the Rappor-
teur softened its rigidity by proposing either the reservations acceptance
by a two thirds majority of treaty parties or submitting the issue of the
admissibility of reservations to a committee of negotiating States or to a
chamber of the Court.5 Fitzmaurice Report I of 1956 reverted to the
strict unanimity rule, subject to two minor qualications.6
4 In 1962 Waldock Report I placed its proposals on reservations within the
framework set out by the Court in 1951 (N. 2).7 In the debate in 1962 a
majority of the Commission accepted that, where the treaty was silent on
the matter of reservations, the compatibility of the reservation with the
treatys object and purpose provided a suitable criterion to determine the

4
Brierly Report I is reproduced at YBILC 1951 II 1 ; see the Memorandum prepared
by G. Amado, Reservations to Multilateral Conventions, YBILC 1951 II 17 . The ILC
Report 1951 on reservations is reproduced at ibid. 125 . See also Rosenne, Develop-
ments 424 . On the travaux prparatoires generally, see Pellet Report I, YBILC 1995
II/1, paras. 12 ; Ruda, RC 146 (1975 III) 148 ; Sinclair, Vienna Convention
58 .
5
Article 9 of the 1954 Report is at YBILC 1954 II 131 . See later on these proposals,
Waldock in the ILC, YBILC 1962 I 143, para. 61 ([a]dmirable as were Sir Hersch
Lauterpachts ideas, they were inapplicable: the Commission had to face the realities of
international life, one of which was that it was often not possible to include in treaties
a jurisdictional clause for the handling of disputes, including disputes as to reserva-
tions).
6
Articles 3740 of the Report are at YBILC 1956 II 115 f. The qualications were: if a
State did not object within three months, this amounted to implied consent; and once
a treaty had been in force for ve years, only actual parties to the treaty could eectively
object to a reservation and thus bar the State from participating in the treaty.
7
Articles 1719, YBILC 1962 II 60 .
formulation of reservations 265

legitimacy of the reservation. The ILC found it unnecessary to distinguish


any further between dierent kinds of multilateral treaties other than to
exempt from the general rule those concluded between a small number of
States (Article 20, para. 2, N. 56).8 In 1965 the proposal was put forward
and accepted in the ILC more or less as it stands today.9 The nal ILC
Report was adopted in 1966.10
In Vienna in 1968 States proposed numerous amendments which, on the 5
whole, concerned mainly the restructuring of the ILC draft articles.11 Most
States accepted the ILCs basic approach to reservations (N. 4),12 and no

8
See the ILC Report 1966, YBILC 1966 II 205, para. 10. The ILC Report 1962 is at
YBILC 1962 II 175 , the debate in 1962 at YBILC 1962 I 139 , 172 , and 287
. In the ILC, Tunkin criticised the provisions of Waldock Report I for being too
detailed for the purposes of a draft convention, YBILC 1962 I 140, para. 16. Among
those in the minority in favour of a unanimity rule were de Luna, ibid. 148, para. 18
(the compatibility of the reservation with the object and purpose of the treaty . . . was
unfortunately dependent on the subjective appreciation of States and therefore impos-
sible to apply with any certainty in practice); Castren, ibid. 149, para. 45 (in the
residual case where the treaty was silent on the subject of reservations, the consent of
the parties was necessary for the reservation to have any eect); and Gros, ibid. 173,
para. 15 ([t]o convert law-making treaties into a series of dierent bilateral relationships
was no contribution to the progressive development of international law). See the sum-
ming up by Waldock, ibid. 158, para. 50, and 159, para. 54 (his intention had been
simply to reect the existing practice and to put forward, in regard to the problem of
reservations, proposals which would prove acceptable to States . . . His proposals . . . were
an attempt to formulate a set of provisions which would have a chance of being accepted
by States).
9
See YBILC 1965 I 263 f, para. 1. Article 18 of Waldock Report IV is reproduced at
YBILC 1965 II 45 , and Article 18 of the ILC Draft 1965 at YBILC 1965 II 161 f.
The debate in 1965 is at YBILC 1965 I 144 , 263 , and 283. See critically Ago,
YBILC 1965 I 151, para. 38 ([a reservation] was a necessary evil, but still an evil, for
what an instrument gained in scope through the number of signatory states, it lost in
depth from the fact that, as a result of the reservations to it, it stated fewer rules).
10
Articles 1619 are at YBILC 1966 II 202 . The debate in 1966 is at YBILC 1966 I/2
295, 326, and 340.
11
For instance, the then USSR proposed combining Articles 19 and 20; see OR Documents
133, subpara. 175(a). Various States proposed deleting subpara. (b), e.g. Colombia and
USA, OR Documents 134, subpara. 177(iv)(a), and the Federal Republic of Germany,
ibid. (b).
12
The debate is reproduced at OR 1968 CoW 106 , 125 , and 425 f, and at OR 1969
Plenary 28 . See the statement by the Japanese delegation, OR CoW 1969 110, para.
27 (States had no inherent right to put forward whatever reservation they pleased);
the criticism of the ILC Draft 1966 by the then USSR delegation, ibid. 107, para. 2
(cumbersome and occasionally contradictory); the praise by the Swiss delegation, ibid.
111, para. 39 ([t]he [Commissions] system was realistic and in conformity with the
present trend of international law); and the summary by the Expert Consultant, Sir
Humphrey Waldock, as to Article 19, para. (c), ibid. 126, para. 7 (the debate seemed
to have shown that . . . that criterion now met with very general acceptance).
266 article

amendments were adopted.13 In 1969 the Plenary voted for Article 19 with
the large majority of 92 votes to four, with seven abstentions.14
Two changes made in Vienna to Article 16 of the ILC Draft 1966 leading to Article
19 of the Convention may be mentioned: In para. (b), instead of the treaty autho-
rises specied reservations, it is now written the treaty provides that only specied
reservations . . . may be made (N. 10); in para. (c), instead of in cases where the
treaty contains no provision regarding reservations, it is now stated in cases not
falling under sub-paras. (a) and (b) (N. 11).

B. INTERPRETATION OF ARTICLE 19

1. Scope
6 As provided for in Article 2, subpara. (d) (q.v., N. 3337), a reservation
purports to exclude or modify the legal eect of certain provisions of the
treaty in [its] application to that State. The provisions of the treaty may
constitute an entire article, or only a paragraph, or even only one or some
words.15 Articles 1923 apply to all treaties.16 However, reservations to a
bilateral treaty amount in eect to a new proposal for negotiations between
the two parties concerning the terms of the treaty.17
The ILCs 2007 Guideline 1.5.1 on Reservations to Bilateral Treaties provides that
[a] unilateral statement . . . by which [a] State . . . purports to obtain from the other
party a modication of the provisions of the treaty . . . does not constitute a reserva-
tion within the meaning of the present Guide to Practice.18
7 In respect of multilateral treaties, reservations raise the diculty that one
State may wish to accept the reservation whereas another objects to it.19
Article 19, in particular its para. (c), reects the approach which the ILC
and the Vienna Conference generally chose for Articles 1923, namely,

13
OR CoW 1968 135 f.
14
The vote is reproduced at OR 1969 Plenary 30, para. 35.
15
Bowett, BYBIL 48 (197677) 85; see here also Article 44 on the Separability of Treaty
Provisions (q.v.).
16
But see the plurilateral treaties referred to in Article 20, para. 2 (q.v., N. 56).
17
ILC Report 1966, YBILC 1966 II 203, para. 1. See Pellet Report I, YBILC 1995
II/1, para. 127, for whom there is here a gap in Articles 1923 (more irritating in
theory than important in practice); also the discussion in connexion with Article 22
(q.v.) in Vienna, OR 1969 CoW 37, in particular the question put by the President
of the Conference, Ago, whether . . . the procedures set out in the articles in Section 2
[on reservations] related only to multilateral treaties, ibid. para. 22; and the reply by
Yasseen, Chairman of the Drafting Committee, ibid. para. 37, that he was not in a
position to conrm.
18
YBILC 2007 II/2 51.
19
ILC Report 1966, YBILC 1966 II 203, para. 1.
formulation of reservations 267

a certain exibility in both making and objecting to reservations.20 In


principle, reservations are permitted (N. 9). More specically, it cannot be
inferred from the absence in a treaty of any article providing for reserva-
tions that they are prohibited; rather, their admissibility depends on the
treatys object and purpose (N. 1214) as well as on their acceptance by
the other parties (Article 20, N. 13).21
Reservations to multilateral treaties have dierent aims: (i ) they may wish to exclude
certain provisions of the treaty, e.g., on the compulsory settlement of disputes;
(ii ) they may aim to exclude the entire treaty, though only in respect of certain situ-
ations or territories; or (iii) they may intend to limit the eects of certain provisions,
e.g., to the extent provided for by domestic legislation.22
The system of reservations in Articles 1923 aims to encourage the largest possible
number of States to participate in a treaty and for the treaty to enter into force.23
This advantage has been criticised as it can lead to a fragmentation of the relations
under the treaty.24 However, if States fear the danger of a bilateralisation of relations
when negotiating a treaty, they are always free to insert an express prohibition against
reservationseither generally or in respect of specic provisions which they regard
as essential. The same consideration applies to the two further criticisms, i.e., (i) that
the non-reserving State may not have consented to the treaty if it had known that the
other State would only do so subject to a reservation; and (ii) that implementation
of the treaty is allegedly more onerous for the non-reserving States.25

Articles 1923 oer important safeguards in that they are based on the 8
consensual character of treaties.26 No State can be bound without its con-
sent, because no reservation can be eective towards another State without
its agreement.27 It is this consensual character which enables two States
to enter into a particular legal relationship as established by a reservation
within the framework of a multilateral treaty.28

20
Ruda, RC 146 (1975 III) 180 (Article 19 is a very important, or even essential, ele-
ment of the system adopted at Vienna).
21
ILC Report 1966, YBILC 1966 II 203 f, para. 4, and 207, para. 17; Waldock Report
I, YBILC 1962 II 65, para. 9; Yasseen in the ILC, YBILC 1965 I 149 f, para. 20
(essential point . . . that, in the case where the treaty was silent . . ., the reservation regarded
as inadmissible had to be incompatible with the object and purpose of the treaty).
22
Extensively Khner, Vorbehalte 193 .
23
Lachs in the ILC, YBILC 1962 II 141, para. 32.
24
See Castren in the ILC, ibid. para. 45 (fty signatures which established a collec-
tive regime of general scope were preferable to 105 signatures when fty-ve of them
were subject to a variety of reservations which impaired the unity of the legal regime
established by the treaty); Briggs, ibid. 51, para. 69 (universality would become
ctitious).
25
Liu in the ILC, ibid. 167, para. 61; ILC Report 1966, YBILC 1966 II 206, para. 13.
26
See the observation by the Expert Consultant, Sir Humphrey Waldock, in Vienna,
OR 1968 CoW 126, para. 1.
27
ILC Report 1966, YBILC 1966 II 203 f, para. 4.
28
Tunkin in the ILC, YBILC 1962 I 158, para. 44.
268 article

2. Freedom to Make Reservations


9 In its opening sentence Article 19 states the general principle that a State
may formulate a reservation. By virtue of their sovereignty, there is a
presumption that States are free to make reservations (although they are
not obliged to do so),29 unless one of the three situations mentioned in
paras. (a), (b) and (c) prevails (N. 1014).30 The occasions upon which
such a reservation may be madei.e., when signing, ratifying, accept-
ing, approving or acceding to a treatygive a State the opportunity to
express its consent to be bound by a treaty as set out in Articles 1115
(q.v.).31 It follows that, after consent has been expressed by one of these
means, it is no longer possible to make a reservation. The formulation
of a reservation is governed by Article 23, para. 1 and must be in writ-
ing (q.v., N. 3). The right to formulate a reservation does not imply the
right to participate in the treaty on the basis of the reservation.32 Also, by
formulating the reservation, the latter has not yet been made, as other
States may still object thereto.33
What are the consequences if the conditions in Article 19, paras. (a)(c) (N. 1014)
are not complied with?34 In the case of paras. (a) and (b), it is understood that States
a priori intended to reject acceptance of any reservation falling within these two cat-
egories. In the case of para. (c), failing a judicial settlement of the dispute, it is up
to the other States parties to the treaties whether or not to regard the reservation as
invalid, in particular, when considering whether to accept or object to these reserva-
tions (see Article 20, N. 1012).

29
Waldock Report I, YBILC 1962 II 65, para. 9; de Luna in the ILC, YBILC 1962 I
148, para. 24. See the ILC Report 2006, YBILC 2006 II/2 330, para. 5 ([i]t is prob-
ably excessive to speak of a right to reservations).
30
ILC Report 1966, YBILC 1966 II 207, para. 17. See Waldock in the ILC, YBILC
1962 I 159, para. 57 ([t]he freedom to make reservations applied only outside the
terms of [paras. a and b]).
31
These means are also mentioned in Article 2, subpara. 1(d) (q.v., N. 33); for this reason, the
reiteration is no doubt superuous . . . [but] not a suciently serious drawback to merit
rewriting the Vienna Convention, ILC Report 2006, YBILC 2006 II/2 332, para. 9.
The signature mentioned refers to a States denitive consent to be bound (Article 12,
N. 910 and 25). The treaty may mention further occasions when a reservation may
be formulated, Aust, Modern Treaty Law 154. See the ILC Report 1966, YBILC 1966
II 208, para. 3, according to which a statement during the negotiations expressing
a reservation is not, as such, recognised in Article [19] as a method of formulating a
reservation and equally receives no mention in the present article.
32
Redgwell, BYBIL 64 (1993) 261 f; Khner, Vorbehalte 122 f.
33
ILC Report 2006, YBILC 2006 II/2 330 f, para. 6.
34
See Tsuruoka in the ILC, YBILC 1962 I 151, para. 63; de Luna, ibid. 148, para. 26
(no sanction was laid down).
formulation of reservations 269

3. Reservations Prohibited by the Treaty (Para. [a])


Paras. (a)(c) provide for exceptions to the general rule, they state the 10
conditions within which a reservation is not permitted. Para. (a) sets out
the rst case, namely when, the reservation is prohibited by the treaty
itself. The parties negotiating the treaty expressly exclude reservations to
certain provisions, or even to any reservation to the treaty, thereby insist-
ing on its integrity.35 Therefore, any change in the text of the treaty would
require an amendment according to Articles 3941 (q.v.).36 In practice,
such clauses remain exceptional. Whether the text of a treaty does in fact
prohibit reservations, will depend on the interpretation of the treaty.37
Given the freedom of States to make reservations (N. 9), para. (a) does
not allow implicit prohibitions (but see N. 11).
Human rights treaties often prohibit reservations,38 as do the Rome Statute of the
International Criminal Court of 199839 and the UN Convention on the Law of the
Sea of 1982.40 Interestingly, from the outset international labour conventions have
not authorised reservations, although this is not expressly mentioned in the ILO
Constitution.41

4. Specied Reservations Excluding Other Reservations (Para. [b])


Para. (b) provides a further exception to the freedom to make reservations. 11
In particular, a reservation is prohibited if the treaty provides that only
specied reservations, which do not include the reservation in question,
may be made. This amounts to a form of implicit prohibition: The treaty
states that only certain reservations may be made to particular articles and

35
See the observation by Sir Humphrey Waldock, Expert Consultant, in Vienna, OR
1968 CoW 126, para. 5; the ILC Report 1966, YBILC 1966 II 207, para. 17. Para.
(a) does not cover implicit or tacit prohibitions, ILC Report 2006, YBILC 2006 II/2
337, para. 6 (only reservations expressly prohibited by the treaty); Khner, Vorbehalte
124 f. See Pellet, Article 19, N. 153 .
36
See Article 17, subpara. 2(a) of Waldock Report I, YBILC 1962 II 60 (unless the
prior consent of all the interested States has been rst obtained).
37
Aust, Modern Treaty Law 136.
38
See, e.g., Article 21 of the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment of 1987 ([n]o reservation may be
made in respect of the provisions of this Convention).
39
Article 120 ([n]o reservations may be made to this Statute).
40
Article 309 ([n]o reservations or exceptions may be made to this Convention unless
expressly permitted by other articles of this Convention); see McDorman, Journal
MLC 13 (1982) 481 .
41
Personal email to the author from the International Labour Standards Department of
the International Labour Oce in Geneva, dated 13 June 2007. This prohibition could
also be seen as falling under para. (c) (N. 1214).
270 article

species them, for instance, reservations to certain of its provisions or to


the treaty as a whole with respect to certain specic aspects42and the
reservation at issue is not directed towards this article for which reason it is
prohibited.43 Whether such an implicit prohibition exists will again depend
on the interpretation of the treaty.44 On the whole, this condition does
not appear entirely satisfactory since the prohibition to make reservations
relies on the silence in respect of certain articles as opposed to the express
authorisation to make reservations in respect of other articles.45 Indeed,
conclusions drawn from this silence may not necessarily reect the inten-
tions of the negotiating States.46
In this situation, the issue arises whether a reservation which is a priori prohibited
under para. (b) is still permitted if it meets the requirements of para. (c) (N. 1214).
However, this would appear to go against the text of Article 19 itselfand this in
two respects: (i) or as the last word of para. (b) makes it clear that paras. (b) and
(c) are alternatives; and (ii) the opening words of para. (c) clarify that the latter only
applies in cases not falling under paras. (a) and (b) (italics added; see N. 12). Of
course, the situation is again dierent if the treaty permits reservations to certain
articles, and states in respect of other articles that reservations are possible as long as
they meet the object-and-purpose-test of para. (c).47
Reservations admitted under para. (b) correspond to Article 20, para. 1 (q.v.,
N. 4) and do not require any subsequent acceptance by the other contracting States.
Reservations also need not pass the additional test under para. (c) as to their compat-
ibility with the treatys object and purpose (N. 1214).48

42
See Guideline 3.1.2 on the Denition of Specied Reservations of the ILC Report
2007, YBILC 2007 II/2 64 (the expression specied reservations means reservations
that are expressly envisaged in the treaty to certain provisions of the treaty or to the
treaty as a whole with respect to certain specic aspects).
43
See ILC Report 1966, YBILC 1966 II 207, para. 17; Article 17, subpara. 1(a)(ii) of
Waldock Report I, YBILC 1962 II 60. See the examples mentioned in ILC Report
2006, YBILC 2006 II/2 337 , paras. 7 . See generally Pellet, Article 19, N. 159 .
44
Aust, Modern Treaty Law 136; see the examples in Khner, Vorbehalte 128.
45
See Yasseen in the ILC, YBILC 1965 I 264, para. 11 (the fact that a treaty author-
ized reservations to some of its clauses did not mean that reservations to other clauses
were inadmissible); per contra Waldock, ibid. para. 27 (where a treaty authorized
reservations to certain specic provisions, the natural implication was that those were
the only provisions to which reservations were allowed).
46
See the observation by Sir Humphrey Waldock, Expert Consultant, in Vienna, OR
1968 CoW 126, para. 6 (the presumption proposed by the Commission, that a treaty
which allowed certain reservations implied that it prohibited others, did not necessarily
represent the intentions of the parties in all cases).
47
E.g., Article 29, para. 1 of the Council of Europe Convention on Nationality of 1997,
also mentioned ibid.
48
Khner, Vorbehalte 128.
formulation of reservations 271

5. Incompatibility With the Treatys Object and Purpose (Para. [c])


Para. (c) is intended to cover reservations where the treaty is silent on the 12
matter,49 or where the treaty states, without further specication, that reser-
vations may be made.50 Para. (c) applies in cases not falling under paras.
(a) and (b), i.e., in respect of all those reservations which are not already
expressly prohibited by the treaty itself (N. 10) and are not implicitly pro-
hibited in view of reservations which are permitted to other articles in the
same treaty (N. 11).51 Thus, it is irrelevant whether reservations prohibited
under paras. (a) and (b) would in fact comply with para. (c).52
According to para. (c), a reservation will not be admitted if it is incompat- 13
ible with the object and purpose of the treaty. This test is an essential
part of the approach to reservations chosen by the Court in the Reservations
to Genocide Advisory Opinion (N. 2).53 The possibility that States accept
reservations even though those reservations are incompatible with para.
(c) does not imply its redundancy (Article 20, N. 12). As the ILC has
since conrmed, para (c) embodies the most important of the criteria for
determining the admissibility of reservations.54 What is meant by a treatys
object and purpose? As in Article 31 (q.v., N. 11), the terms are used
as a combined whole and include a treatys aims, its nature and its end.55
A treaty may have many objects and purposes.56 One of them will certainly

49
See ILC Report 1966, YBILC 1966 II 207, para. 17; the observation by Yasseen of
the Drafting Committee in Vienna, OR 1968 CoW 415, para. 17 (in order to ensure
that no gap was left). The ILC Draft 1966, YBILC 1966 II 202, had previously stated
in this respect: in cases where the treaty contains no provision regarding reservations,
but this was changed in Vienna (N. 5). See generally Pellet, Article 19, N. 172 .
50
Bowett, BYBIL 48 (19761977) 71.
51
Ago, YBILC 1965 I 264, para. 16 ([w]here the parties had been careful to specify
in the treaty the clauses to which it was permitted to make reservations, or those to
which no reservations could be made, the compatibility test was unnecessary); see also
Hilpold, AVR 43 (1996) 401; Bowett, BYBIL 48 (19761977) 70 f.
52
ILC Report 2006, YBILC 2006 II/2 352, para. 6.
53
Yasseen of the Drafting Committee in Vienna, OR 1968 CoW 416 f, para. 18.
54
ILC Report 1997, YBILC 1997 II/2 57, para. 1.
55
See Guideline 3.1.5 on the Incompatibility of a Reservation with the Object and
Purpose of the Treaty in the ILC Report 2007, YBILC 2007 II/2 66 (if [the reserva-
tion] aects an essential element of the treaty that is necessary to its general thrust,
in such a way that the reservation impairs the raison dtre of the treaty); Article 17,
subpara. 1(a)(i) of Waldock Report I, YBILC 1962 II 60 (excluded by the nature of
the treaty). See on the subject also Buffard/Zemanek, Austrian RIEL 3 (1998) 311 ,
322 ; Linderfalk, Nordic JIL 72 (2003) 442 (a reservation of a treaty is to be assessed
against the rights and obligations, to which the treaty gives expression. Second, it is to
be assessed against the telos [or teloi] of the treaty; original italics); Tomuschat, ZaRV
27 (1967) 474 (agrant contrast to the treaty).
56
See Tusuruoka in the ILC, YBILC 1966 I 326, para. 91 (both singular and plural
had the same meaning).
272 article

be to maintain the balance of rights and obligations created by the treaty.57


The objects and purposes may be determined by referring to the means
of interpretation in Articles 31 and 32 (q.v.),58 among them the treatys
title, its preamble, the text of the articles, any annexes, parallel or separate
agreements, the travaux prparatoires, etc.59 Vague or general reservations
appear incompatible with Article 19, para. (c) if they do not permit assess-
ing their compatibility with the treatys object and purpose.60
Guideline 3.1.6 on the Determination of the Object and Purpose of the Treaty of the
ILC Report 2007 reects elements of Article 31 when it states in respect of Article
19, para. (c): [t]he object and purpose of the treaty is to be determined in good
faith, taking account of the terms of the treaty in their context. Recourse may also
be had in particular to the title of the treaty, the preparatory work of the treaty and
the circumstances of its conclusion and, where appropriate, the subsequent practice
agreed upon by the parties.61 In Vienna in 1969 the US delegation understood the
expression object and purpose of the treaty in its broad sense as comprehending
the origins and character of the treaty and the institutional structure within which
the purpose of the treaty was to be achieved.62
Thus, a reservation shall not run counter to a treatys fundamental principles.63
Typically, a reservation going against a treatys object and purpose would be one
whereby a State ratifying the UN Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment of 1984 seeks to exclude torture
from it.64 Equally, reservations aimed at preserving the integrity of internal law may
go against a treatys object and purpose in view of their often undetermined and
sweeping nature.65 In addition, reservations appear incompatible with a treaty reect-
ing jus cogens (Article 53, N. 23).66

57
Treviranus, GYBIL 25 (1982) 520.
58
Waldock in the ILC, YBILC 1962 I 159 para. 57 (intentions of the negotiating
States).
59
See also the ILC Commentary 2007 on Guideline 3.1.6 on the Determination of the
Object and Purpose of the Treaty, YBILC 2007 II/2 78, para. 3.
60
Guideline 3.1.7. on Vague or General Reservations, ILC Report 2007, ibid. 82 .
61
Ibid. 77. See Pellet, Article 19, N. 187.
62
OR 1969 Plenary 35, para. 3.
63
See the observation of the Iraqi delegation in Vienna, OR 1968 CoW 117, para. 22.
64
Aust, Modern Modern Treaty Law 137, with further examples; also Waldock in the
ILC, YBILC 1962 I 143, para. 60 ([the] Charter of the United Nations which, by
its nature, was not open to reservations). On the reservations of the former German
Democratic Republic to the Convention, see Edwards, Michigan JIL 10 (1989) 391
; G. Gornig/M. Ney, Die Erklrungen der DDR zur UN-Antifolterkonvention aus
vlkerrechtlicher Sicht, Juristen Zeitung 43 (1988) 1048 . See the UN Human Rights
Committee in Kennedy v. Trinidad and Tobago, HRLJ 21 (2000) 21 (exclude the com-
petence of the Committee . . . with regard to . . . the entire Covenant for . . . prisoners under
sentence of death. This does not . . . make it compatible with the object and purpose of
the Optional Protocol).
65
See ILC Guideline 3.1.11, YBILC 2007 II/2 65 ([a] reservation by which a State . . . pur-
ports to exclude or to modify the legal eect of certain provisions of a treaty or of the
treaty as a whole in order to preserve the integrity of specic norms of that State . . . may
be formulated only insofar as it is compatible with the object and purpose of the treaty).
66
Verdross/Simma N. 731, n. 68.
formulation of reservations 273

The treatys object and purpose as in para. (c) was one of the issues relating to the
Courts jurisdiction and the admissibility of application in the Armed Activities on
the Territory of the Congo (Democratic Republic of the Congo/Rwanda) Case. In respect
of Rwandas reservation to Article IX of the 1951 Genocide Convention (N. 2), the
Court found: Rwandas reservation . . . bears on the jurisdiction of the Court and does
not aect substantive obligations relating to acts of genocide themselves under that
Convention. In the circumstances of the present case, the Court cannot conclude
that the reservation of Rwanda in question, which is meant to exclude a particular
method of settling a dispute relating to the interpretation, application or fulllment
of the Convention, is to be regarded as being incompatible with the object and
purpose of the Convention.67

Assessing the admissibility of a reservation under para. (c), while appear- 14


ing a priori to be dened objectively, depends in the last resort on the
appreciation by each treaty party itself and is as such a dicult exercise.68
This appreciation resurfaces in Article 20, para. 4 (q.v., N. 916), with
which para. (c) is closely linked. In practice, a State wishing to object to
a reservation will often claim its incompatibility with the treatys object
and purpose.69 Of course, the subjectivity inherent in this approach equally
provides for considerable exibility.70
Article 20, para. 2 of the International Convention on the Elimination of All Forms
of Racial Discrimination of 1979 oers an interesting solution when it states that
[a] reservation incompatible with the object and purpose of this Convention shall
not be permitted . . . A reservation shall be considered incompatible or inhibitive if at
least two thirds of the States Parties to this Convention object to it.71

67
ICJ Reports 2006, para. 67, with reference, ibid. para. 68 to previous cases. This was
criticised by Judges Higgins, Kooijmans, Elaraby, Owada and Simma in a joint
separate opinion, ibid.; see also the diss.op. of Judge Koroma, ibid.
68
Aust, Modern Treaty Law 136. See Sir Humphrey Waldock, Expert Consultant in
Vienna, OR 1968 CoW 126, para. 10 (although the [ILC] had intended to state
an objective criterion, the method of application proposed . . . was subjective, in that
it depended on the judgment of States. But that situation was characteristic of many
spheres of international law in the absence of a judicial decision); de Luna in the ILC,
YBILC 1962 I 148, para. 18 (unfortunately dependent on the subjective appreciation
of States and therefore impossible to apply with any certainty in practice); Amado,
ibid. 160, para. 64 ([t]he compatibility test . . . was . . . impracticable).
69
ILC Report 1966, YBILC 1966 II 207, para. 17; Waldock in the ILC, YBILC 1962
I 159, para. 60.
70
Piper, Iowa LR 71 (1985) 319.
71
In the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo/
Rwanda) Case, ICJ Reports 2006, para. 77, the Court noted that such an objection by
two-thirds of the States Parties had not been the case as regards Rwandas reservation
in respect of the Courts jurisdiction.
274 article

C. CONTEXT

1. Relationship to Other Provisions


15 Articles 1923 have to be read together as a combined whole. Article 20
(q.v.) is of particular relevance for Article 19. Thus, the formulation of a
reservation is only one side of the coin; its legal eect will depend on the
reactions by the other treaty parties, in particular whether they accept or
reject the reservation.72 It can be said that Article 19 concerns those cases
where reservations are prohibited, and Article 20 those cases where reserva-
tions are permitted (Article 20, N. 2).73
Article 17, concerning Consent to be Bound by Part of a Treaty and Choice of
Diering Provisions, expressly states that it is [w]ithout prejudice to Articles 1923,
though the distinction between reservations and partial consent is not clear-cut (q.v.,
N. 5).

2. Matters Not Dealt With


(see Articles 1923Subsequent Developments)

3. Customary Basis of Article 19


(see Articles 1923Subsequent Developments)

D. RESERVATIONS TO THE CONVENTION

16 The Convention itself does not contain any clauses regulating whether and
to what extent reservations can be made. Thus, reservations are in principle
admissible, and there appears to be no logical diculty of applying the
Convention to itself (Issues of Customary International Law, N. 2427).74
It follows that reservations to the Convention have themselves to meet
the conditions of Articles 1923 and, in particular, the compatibility test

72
ILC Report 1966, YBILC 1966 II 203, para. 1; see already ILC Report 1962, YBILC
1962 II 176, para. 1.
73
Statement in Vienna by the Swedish delegation (Blix), OR 1968 CoW 117, para. 28.
74
Sinclair, Vienna Convention 63 ([t]he Vienna Conference decided, in full knowledge
of the consequences); per contra Sztucki, GYBIL 20 (1977) 284 (the Convention
regime of reservations cannot be regarded as also governing, on the strength of its legal
force, the reservations to the Convention itself ). On the subject, Verhoeven, Essays
Suy 196 . See also Aust, Modern Treaty Law 155, according to whom Article 20,
para. 5 (q.v., N. 17) cannot apply to the Convention itself.
formulation of reservations 275

of para. (c) (N. 1214). Since 1969 many such reservations have been
made (see Reservations and Declarations to the Convention and Objections
Thereto).75
In 1969 in Vienna the Spanish delegation proposed introducing an amendment accord-
ing to which [n]o amendment is permitted to Part V of the present Convention,
considering in particular that reservations to Part V of the Convention would be
incompatible with the object and purpose of the Convention.76 After a short discus-
sion the amendment was rejected by 62 votes to nine, with 33 abstentions.77

E. PROPOSALS FOR AMENDMENT

(see Articles 1923Subsequent Developments)

F. APPRECIATION

(see Articles 1923Subsequent Developments)

75
For a discussion on various reservations to the Convention and, in particular, the reac-
tion of the United Kingdom hereto, see Sinclair, ibid. 63 .
76
OR 1969 Plenary 195 f, paras. 93 f. The proposal was supported in particular by Blix
of the Swedish delegation, ibid. 95 ([h]e would have liked to see a clause prohibiting
any reservation whatsoever to the Convention, but he realized that that would not
have been acceptable to the majority); conversely Rosenne of the Israeli delegation,
ibid. para. 97, ([the] substantive articles [Articles 1923] in the Convention were
perfectly adequate): the then USSR delegation, ibid. para. 98 (it was apparent from
the Convention that reservations were generally permissible). See also Sinclair, ibid.
79, n. 44.
77
Ibid. para. 102. On the consequences of reservations to Article 66 and its Annex (q.v.)
in respect of Part V of the Convention in general, see Khner, Vorbehalte 196 .
Article 20
Acceptance of and objections to reservations

1. A reservation expressly authorised by a treaty does not require any


subsequent acceptance by the other contracting States unless the
treaty so provides.
2. When it appears from the limited number of the negotiating States
and the object and purpose of a treaty that the application of the
treaty in its entirety between all the parties is an essential condition
of the consent of each one to be bound by the treaty, a reservation
requires acceptance by all the parties.
3. When a treaty is a constituent instrument of an international organi-
sation and unless it otherwise provides, a reservation requires the
acceptance of the competent organ of that organisation.
4. In cases not falling under the preceding paragraphs and unless the
treaty otherwise provides:

(a) acceptance by another contracting State of a reservation consti-


tutes the reserving State a party to the treaty in relation to that
other State if or when the treaty is in force for those States;
(b) an objection by another contracting State to a reservation does
not preclude the entry into force of the treaty as between the
objecting and reserving States unless a contrary intention is
denitely expressed by the objecting State;
(c) an act expressing a States consent to be bound by the treaty
and containing a reservation is eective as soon as at least one
other contracting State has accepted the reservation.

5. For the purposes of paragraphs 2 and 4 and unless the treaty oth-
erwise provides, a reservation is considered to have been accepted
by a State if it shall have raised no objection to the reservation by
the end of a period of twelve months after it was notied of the
reservation or by the date on which it expressed its consent to be
bound by the treaty, whichever is later.

acceptance of and objections to reservations 277

Article 20 Acceptation des rserves et objections aux rserves

1. Une rserve expressment autorise par un trait na pas tre ultrieurement


accepte par les autres Etats contractants, moins que le trait ne le prvoie.
2. Lorsquil ressort du nombre restreint des Etats ayant particip la ngociation,
ainsi que de lobjet et du but dun trait, que lapplication du trait dans son
intgralit entre toutes les parties est une condition essentielle du consente-
ment de chacune delles tre lie par le trait, une rserve doit tre accepte
par toutes les parties.
3. Lorsquun trait est un acte constitutif dune organisation internationale et
moins quil nen dispose autrement, une rserve exige lacceptation de lorgane
comptent de cette organisation.
4. Dans les cas autres que ceux viss aux paragraphes prcdents et moins que
le trait nen dispose autrement:

a) lacceptation dune rserve par un autre Etat contractant fait de lEtat auteur
de la rserve une partie au trait par rapport cet autre Etat si le trait est
en vigueur ou lorsquil entre en vigueur pour ces Etats;
b) lobjection faite une rserve par un autre Etat contractant nempche pas
le trait dentrer en vigueur entre lEtat qui a formul lobjection et lEtat
auteur de la rserve, moins que lintention contraire nait t nettement
exprime par lEtat qui a formul lobjection;
c) un acte exprimant le consentement dun Etat tre li par le trait et con-
tenant une rserve prend eet ds quau moins un autre Etat contractant
a accept la rserve.

5. Aux ns des paragraphes 2 et 4 et moins que le trait nen dispose autre-


ment, une rserve est rpute avoir t accepte par un Etat si ce dernier na
pas formul dobjection la rserve soit lexpiration des douze mois qui
suivent la date laquelle il en a reu notication, soit la date laquelle il a
exprim son consentement tre li par le trait, si celle-ci est postrieure.

Artikel 20 Annahme von Vorbehalten und Einsprche gegen Vorbehalte

1. Ein durch einen Vertrag ausdrcklich zugelassener Vorbehalt bedarf der nach-
trglichen Annahme durch die anderen Vertragsstaaten nur, wenn der Vertrag
dies vorsieht.
2. Geht aus der begrenzten Zahl der Verhandlungsstaaten sowie aus Ziel und
Zweck eines Vertrags hervor, dass die Anwendung des Vertrags in seiner Gesam-
theit zwischen allen Vertragsparteien eine wesentliche Voraussetzung fr die
278 article

Zustimmung jeder Vertragspartei ist, durch den Vertrag gebunden zu sein, so


bedarf ein Vorbehalt der Annahme durch alle Vertragsparteien.
3. Bildet ein Vertrag die Grndungsurkunde einer internationalen Organisation
und sieht er nichts anderes vor, so bedarf ein Vorbehalt der Annahme durch
das zustndige Organ der Organisation.
4. In den nicht in den Abstzen 1 bis 3 bezeichneten Fllen und sofern der
Vertrag nichts anderes vorsieht,

a) macht die Annahme eines Vorbehalts durch einen anderen Vertragsstaat


den den Vorbehalt anbringenden Staat zur Vertragspartei im Verhltnis zu
jenem anderen Staat, sofern der Vertrag fr diese Staaten in Kraft getreten
ist oder sobald er fr sie in Kraft tritt;
b) schliesst der Einspruch eines anderen Vertragsstaats gegen einen Vorbehalt
das Inkrafttreten des Vertrags zwischen dem den Einspruch erhebenden
und dem den Vorbehalt anbringenden Staat nicht aus, sofern nicht der
den Einspruch erhebende Staat seine gegenteilige Absicht eindeutig zum
Ausdruck bringt;
c) wird eine Handlung, mit der die Zustimmung eines Staates, durch den
Vertrag gebunden zu sein, ausgedrckt wird und die einen Vorbehalt in
sich schliesst, wirksam, sobald mindestens ein anderer Vertragsstaat den
Vorbehalt angenommen hat.

5. Im Sinne der Abstze 2 und 4 und sofern der Vertrag nichts anderes vorsieht,
gilt ein Vorbehalt als von einem Staat angenommen, wenn dieser bis zum
Ablauf von zwlf Monaten, nachdem ihm der Vorbehalt notiziert worden
ist, oder bis zu dem Zeitpunkt, wenn dies der sptere ist, in dem er seine
Zustimmung ausgedrckt hat, durch den Vertrag gebunden zu sein, keinen
Einspruch gegen den Vorbehalt erhebt.

ILC Draft 1966

Article 17Acceptance of and objection to reservations

1. A reservation expressly or implicitly authorised by the treaty does not require


any subsequent acceptance by the other contracting States unless the treaty so
provides.
2. When it appears from the limited number of the negotiating States and the
object and purpose of a treaty that the application of the treaty in its entirety
between all the parties is an essential condition of the consent of each one to
be bound by the treaty, a reservation requires acceptance by all the parties.
acceptance of and objections to reservations 279

3. When a treaty is a constituent instrument of an international organisation, the


reservation requires the acceptance the competent organ of that organisation,
unless the treaty otherwise provides.
4. In cases not falling under the preceding paragraphs of this Article:

(a) acceptance by another contracting State of a reservation constitutes the


reserving State a party to the treaty in relation to that other State if or
when the treaty is in force;
(b) an objection by another contracting State to a reservation precludes the
entry into force of the treaty as between the objecting and reserving States
unless a contrary intention is expressed by the objecting State;
(c) an act expressing a States consent to be bound by the treaty and contain-
ing a reservation is eective as soon as at least one other contracting State
has accepted the reservation.

5. For the purposes of paragraphs 2 and 4 a reservation is considered to have


been accepted by a State if it shall have raised no objection to the reservation
by the end of a period of twelve months after it was notied of the reservation
or by the date on which it expressed its consent to be bound by the treaty,
whichever is later.

Materials:

WALDOCK Report I: Articles 18 and 19.


Minutes: YBILC 1962 I 139 , 172 , 221 , 252 , 287 .
ILC Draft 1962: Article 20.
WALDOCK Report IV: Article 20.
Minutes: YBILC 1965 I 145 , 166 , 265 (later Article 19).
ILC Draft 1965: Article 19.
Minutes: YBILC 1966 I/2 292 f, 326 f.
ILC Draft 1966: Article 17.
Minutes: OR 1968 106 , 125 , 416 f, 425 f; OR 1969 CoW 220 f; OR 1969 Plenary
30 .

Vienna Conference Vote: 83:0:17

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

A.M. Calamia, La disciplina delle obiezioni alle riserve e la Convenzione di Vienna sul
diritto dei trattati, in: Studi in onore di G. Sperduti (1984) 3 ; L. Migliorino, Le
obiezioni alle riserve nei trattati internazionali (1997); D. Mller, Article 20, in: Corten/
Klein (eds.) 797 .
280 article

CONTENTS
Paras.

A. Background ...................................................................................... 1
1. Introduction (see Article 19, N. 12)
2. History ........................................................................................... 1
B. Interpretation of Article 20 ......................................................... 2
1. Scope .............................................................................................. 2
2. Reservations Authorised by the Treaty (Para. 1) ............................. 4
3. Reservations to Treaties with Limited Number of States (Para. 2) .... 5
4. Reservations to Constituent Instruments
of International Organisations (Para. 3) ......................................... 7
5. General Rule on Acceptance and Objections (Para. 4) .................. 9
a) Position of Prohibited Reservations ........................................... 10
b) Acceptance of Reservations (Subpara. 4[a]) ............................... 13
c) Objections to Reservations (Subpara. 4[b]) ............................... 14
d) Eectiveness of Acceptance (Subpara. 4[c]) .............................. 16
6. Tacit Acceptance and its Consequences (Para. 5) ........................... 17
C. Context
(see Articles 1923Subsequent Developments)
D. Proposals for Amendment
(see Articles 1923Subsequent Developments)
E. Appreciation
(see Articles 1923Subsequent Developments)

A. BACKGROUND

1. Introduction
(see Article 19, N. 1)

2. History
1 Article 20 goes back to Articles 18 and 19 of the Waldock Report I of
1962 (Article 19, N. 4).1 An important topic of the ensuing discussion in
the ILC was the relationship between the incompatibility test in Article 19,
para. (c) (q.v., N. 1214) and the acceptance of a reservation in Article 20,

1
YBILC 1962 II 61 .
acceptance of and objections to reservations 281

subparas. 4(a) and (c) (N. 13, 16).2 A proposal was put forward which
separated the application of the two notions.3 The text eventually proposed
by the ILC in 1962 assumed that, if a State objected to a reservation, this
precluded the entry into force of the entire treaty between itself and the
reserving State.4 These topics resurfaced in 1965 in the ILC.5 Members
who disapproved of the system of reservations chosen by the ILC speci-
cally also disagreed with the substance of todays Article 20, para. 4.6 The
ILC Draft 1966 attracted various amendments in Vienna in 1968:7 the
most important one to be adopted, proposed by the then USSR, altered
the assumption in Article 20, subpara. 4(b) (N. 14) in that an objection
to a reservation henceforth did not in itself preclude the entry into force
of the treaty between the States concerned.8 (Subpara. 4[b] is therefore also
called the Russian clause.) Conversely, proposals to have the possibility of
a reservation being disallowed on the basis of collegiate disapproval (e.g.,
a majority of the treaty parties) were not successful.9 In 1969 the Plenary
adopted Article 20 with the surprisingly convincing result of 83 votes to
none, with 17 abstentions.10
Among the further changes made in Vienna to Article 17 of the ILC Draft 1966
leading to todays Article 20 were:

2
See, e.g., the observations by Tunkin, de Luna and Ago, YBILC 1962 I 225 . The
minutes are reproduced at YBILC 1962 I 139 , 172 , 221 , 252 , 287 .
3
Article 18bis, ibid. 252, para. 55; see Waldock, ibid. para. 56 ([t]he main diculty in
drafting the article had been to bring its provisions into line with the principle . . . that
a reservation could be formulated if compatible with the object and purpose of the
treaty).
4
Article 20 of the ILC Draft 1962 is at YBILC 1962 II 176 . See subsequently Article
20 of Waldock Report V, YBILC 1965 II 45 .
5
See, e.g., the observations by Tunkin, YBILC 1965 I 167, para. 37; and Tsuruoka
ibid. 169, para. 68.
6
E.g., Briggs ibid. 268, para. 60. The minutes of the debate in 1965 can be found at
YBILC 1965 I 145 , 166 , and 265 (here: Article 19).
7
The ILC Draft 1966 is at YBILC 1966 II 202 . The minutes of the debate in 1966
are at YBILC 1966 I/2 292 f, and 326 f.
8
OR Documents 133, subpara. 175(a). Interestingly, this amendment was rst rejected
in 1968, OR CoW 1968 135, para. 36, but later adopted in 1969, OR 1969 Plenary
35, para. 79.
9
See, e.g., the statement of the Irish delegation, OR 1968 CoW 123, para. 19. The US
amendment, proposing that para. 3 include the words but such acceptance shall not
preclude any contracting State from objecting to the reservation, OR Documents
135, subpara. 179(iv)(d), was rst adopted, OR 1968 CoW 135, para. 32, and later
withdrawn, ibid. 426, para. 14. Two amendments proposed by Switzerland (N. 11)
and the US (N. 12), concerning the links between Articles 19 and 20, were referred to
the Drafting Committee, though eventually not included. The debate in 1968 can be
found at OR 1968 CoW 106 , 125 , 416 f, and 425 f.
10
OR 1969 Plenary 35, para. 82. The debate in 1969 is reproduced at OR 1969 CoW
220 f, and OR 1969 Plenary 30 .
282 article

in para. 1 the word impliedly was deleted from the phrase expressly or impliedly
authorised;11
in paras. 4 (opening sentence) and 5 the words unless the treaty otherwise pro-
vides were introduced; and in para. 3 these words were taken from the end to
the middle of the sentence; and
in para. 4 the words if or when the treaty is in force for those States were added.

B. INTERPRETATION OF ARTICLE 20

1. Scope
2 Article 20 deals with the acceptance of and objections to reservations.
To accept a reservation is to agree with its content, to object thereto is
to disapprove of it.12 Implicitly, Article 20 relates to permitted reserva-
tions, whereas Article 19 concerns those which are prohibited (q.v., N.
1014).13 Interestingly, Article 20 mentions neither one nor the other
category expressly.14 The fundamental principle remains here as throughout
Articles 1923 that, in order for a reservation to be eective, other States
must in one or the other way have given their consent thereto for them
to be bound. Paras. 13 deal with three specic situations (N. 47)