Sixth Report on the law of treaties by Sir Humphrey Waldock, …legal.un.org/ilc/documentation/english/a_cn4_186.pdf · Law of Treaties 51 DOCUMENT A/CN.4/186 and Add.1-7 Sixth Report

Document:- A/CN.4/186 and Add.1, 2/Rev.1, 3-7

Sixth Report on the law of treaties by Sir Humphrey Waldock, Special Rapporteur

Topic: Law of Treaties

Extract from the Yearbook of the International Law Commission:- 1966 , vol. II

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

Copyright © United Nations

Law of Treaties 51

DOCUMENT A/CN.4/186 and Add.1-7

Sixth Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur

[Original text: English][11 March, 25 March, 12 April,

11 May, 17 May, 24 May,1 June and 14 June 1966]

CONTENTS

Page

INTRODUCTION 52

The basis of the present report 53

COMPLETION OF THE REVISION OF PART II OF THE DRAFT ARTICLES IN THE LIGHT OF THE COMMENTS OF GOVERN-MENTS (SECTION VI—ARTICLES 52-54) 53

The title to section VI 53Proposal of the Special Rapporteur 53

Article 52: Legal consequences of the nullity of a treaty 53Comments of Governments 53Observations and proposals of the Special Rapporteur 54

Article 53: Legal consequences of the termination of a treaty 55Comments of Governments 55Observations and proposals of the Special Rapporteur 56

Article 54: Legal consequences of the suspension of the operation of a treaty 57Comments of Governments 57Observations and proposals of the Special Rapporteur 58

REVISION OF PART III OF THE DRAFT ARTICLES IN THE LIGHT OF THE COMMENTS OF GOVERNMENTS 59

Title and arrangement of the articles 59

Article 55: Pacta sunt servanda 59Comments of Governments 59Observations and proposals of the Special Rapporteur 60

Article 56: Application of a treaty in point of time 62Comments of Governments 62Observations and proposals of the Special Rapporteur 62

Article 57: The territorial scope of a treaty 64Comments of Governments 64Observations and proposals of the Special Rapporteur 65

Article 58: General rule limiting the effects of treaties to the parties 66Comments of Governments 66Observations and proposals of the Special Rapporteur 67

Article 59: Treaties providing for obligations for third States 68Comments of Governments 68Observations and proposals of the Special Rapporteur 68

Article 60: Treaties providing for rights for third States 69Comments of Governments 69Observations and proposals of the Special Rapporteur 70

Article 61: Revocation or amendment of provisions regarding obligations or rights of third States 71Comments of Governments 71Observations and proposals of the Special Rapporteur 72

Article 62: Rules in a treaty becoming generally binding through international custom 73Comments of Governments 73Observations and proposals of the Special Rapporteur 74

Article 63: Application of treaties having incompatible provisions 74Comments of Governments 74Observations and proposals of the Special Rapporteur 75

52 Yearbook of the International Law Commission, 1966, Vol. II

CONTENTS (continued)

PageArticle 64: The effect of severance of diplomatic relations on the application of treaties 77

Comments of Governments 77Observations and proposals of the Special Rapporteur 78

Article 65: Procedure for amending treaties 79Comments of Governments 79Observations and proposals of the Special Rapporteur 80

Article 66: Amendment of multilateral treaties 81Comments of Governments 81Observations and proposals of the Special Rapporteur 83

Article 67: Agreements to modify multilateral treaties between certain of the parties only 86Comments of Governments 86Observations and proposals of the Special Rapporteur 87

Article 68: Modification of a treaty by a subsequent treaty, by subsequent practice or by customarylaw 87Comments of Governments 87

Observations and proposals of the Special Rapporteur 88

Article 69: General rule of interpretation, and

Article 70: Further means of interpretation, and

Article 71: Terms having a special meaning 91Comments of Governments 91

Observations and proposals of the Special Rapporteur 94

Article 72: Treaties drawn up in two or more languages, and

Article 73: Interpretation of treaties having two or more texts 101Comments of Governments 101Observations and proposals of the Special Rapporteur 101

Introduction

1. In the two parts of its seventeenth session x the Com-mission re-examined in the light of the comments ofGovernments:

(a) the articles on the conclusion, entry into force andregistration of treaties prepared at its fourteenth session 2

and included in part I of its draft articles on the law oftreaties;

(b) the articles on invalidity and termination of treatiesprepared at its fifteenth session 3 and included in part IIof its draft articles on the law of treaties.

The Commission provisionally adopted revised textsof forty-four articles. It deleted five articles, namelyarticles 5, 10, 14, 27 and 38 (in some cases incorporatingtheir substance in another article). It transferred article 48to part I, renumbering it article 3(bis). It formed threenew articles by separating provisions from existing articles,namely, article 0 (from article 2), article 4(bis) (fromarticle 32, paragraph 1), and article 30(bis) (from article 53,paragraph 4); and, in deleting article 38, it retained oneof its provisions as article 39(bis). It added one newarticle, article 29(bis).

1 Official Records of the General Assembly, Twentieth Session,Supplement No. 9 (A/6009) and Ibid., Twenty-first Session, Supple-ment No. 9 (A/6309/Rev.l).

2 Yearbook of the International Law Commission, 1962, vol. II,pp. 161-186.

3 Ibid., 1963, vol. II, pp. 189-217.

2. In re-examining the articles contained in part I, theCommission postponed its decision:

(a) on certain points in article 1 concerning the use ofterms in the draft articles and on the inclusion in thatarticle of a provision regarding the characterization orclassification of international agreements under internallaw;

(b) on articles 8 and 9 (participation in a treaty)and 13 (accession).3. In re-examining the articles contained in part II, theCommission postponed its decision:

(a) on article 40 (termination or suspension of theoperation of a treaty by agreement); and

(b) on articles 49 (authority to denounce, terminate,etc.) and 50 (procedure under a right provided for inthe treaty), instructing the Drafting Committee to presentrevised texts at the next session.

At the same time it instructed the Drafting Committeeto consider what, if any, elements of article 38, para-graphs 2 and 3(a)4 should be retained and transferredto article 50.4. The above questions still remaining undecided inparts I and II will necessarily have to be taken up againby the Commission at its forthcoming session when the

4 This article has been deleted, paragraph 3(c) being transferredto a new article, article 39(bis).

Law of Treaties 53

draft articles on the law of treaties are to be completedand submitted to the General Assembly. Accordingly,the Special Rapporteur will in due course present to theCommission or to the Drafting Committee, as may beappropriate, fresh proposals or revised texts in regardto each of these questions.

5. The time available to the Commission at the secondpart of its seventeenth session did not permit it to takeup the re-examination of all the articles of part II of thedraft articles, the articles not yet reconsidered by it beingarticles 51 to 54 inclusive. The Special Rapporteur, there-fore, assumes that at the eighteenth session the Commis-sion will begin with these articles. His observations andproposals regarding article 51 were presented to theCommission as part of his fifth report, and are to befound at the end of addendum 4 to that report5 (A/CN.4/183). Articles 52, 53 and 54, concerning the legal conse-quences of the invalidity, termination or suspension ofthe operation of a treaty, could not be covered in thefifth report, owing to lack of time, and the Special Rap-porteur's observations and proposals regarding thesearticles are therefore presented to the Commission asthe first instalment of this report. The articles on theapplication, effects, modification and interpretation oftreaties contained in part III will then be dealt with insuccessive addenda to this first instalment.

The basis of the present report

6. The basis of the present report is the same as thatof the Special Rapporteur's fourth and fifth reports,namely, the written replies of Governments, the com-ments of delegations in the Sixth Committee of theGeneral Assembly6 and the observations and proposalsof the Special Rapporteur resulting therefrom. The com-ments of Governments and delegations on draft articles 52,53 and 54 are contained in the Secretariat documentA/CN.4/175 and in addenda 1-4 of that document, whiletheir comments on part III of the draft articles are con-tained in document A/CN.4/182.

7. The Commission, for reasons of convenience, isre-examining the draft articles in the same general orderas that in which they were provisionally adopted at thefourteenth, fifteenth and sixteenth sessions. In paragraphs5 to 7 of his fifth report, and at the second part of theseventeenth session,7 the Special Rapporteur indicatedto the Commission the reasons why a considerablerearrangement of the order of the articles appears tohim to be necessary. The question of the order of thearticles has now been referred to the Drafting Committee,8

which will make its recommendations to the Commissionregarding it in the course of the forthcoming session.

6 See p. 49 above.6 Official Records of the General Assembly, Twentieth Session,

Annexes, agenda item 87, Report of the Sixth Committee (A/6090).7 Yearbook of the International Law Commission, 1966, vol. I,

part I, 822nd meeting, para. 19.8 Ibid., 823rd meeting, para. 79. '

Completion of the revision of part II of the draft articlesin the light of the comments of Governments (section VI —

articles 52-54)9

The title to section VI

Proposal of the Special RapporteurThe title to the section at present reads: "The legal

consequences of nullity, etc.". The substantive articlesconcerning grounds of nullity, however, invariably speakof "invalidity", and it therefore seems essential in theinterests of consistency of terminology to substitute theword "invalidity" for "nullity" in the title to section VI.

Article 52.—Legal consequences of the nullity of a treaty

Comments of Governments

Israel. The Government of Israel observes that thearticle attempts to deal with two distinct matters, namely:treaties which are a nullity ab initio and treaties the consentto which may be invalidated subsequently at the initiativeof one of the parties. It feels that this distinction shouldbe brought more sharply into focus. It feels that theresulting difficulties, and certain difficulties of a termino-logical character, would be reduced if the text were tobe oriented not to the general concept of nullity but tothe legal consequences of the application of the differentarticles of part II to which it relates. Subject to theseobservations the Government of Israel suggests thatparagraph l(a) should refer to the "legal consequencesof acts performed in good faith by a party in reliance onthe void treaty". In its view, even making due allowancefor the maxim omnia rite acta praesumuntur, the invalida-tion of the consent to be bound by a treaty ought notin itself to impair claims based upon the alleged illegalityof acts performed in reliance on the treaty. In this con-nexion, it points to a passage of the Judgment of theInternational Court in the Northern Cameroons case10 asalluding to this principle in the context of the terminationof a treaty. Paragraph l(b) it thinks should be introducedby the word "Nevertheless". In paragraph 3 it considersthat the phrase "nullity of a State's consent to a multi-lateral treaty" should be replaced by "invalidation of aState's participation in a multilateral treaty" in order tomake the language correspond more closely with that ofarticles 8 and 9.

Netherlands. The Netherlands Government merelystates that it has no comment on the article.

Portugal. The Portuguese Government analyses andappears to endorse the several provisions contained inthe article.

Sweden. The Swedish Government observes that thearticle deals in very general and abstract terms withproblems of great complexity. It suggests that a fullerdiscussion than that given in the commentary is desirableto illustrate and analyse the various cases that may arise.It adds that in paragraph l(b) the expression "may berequired" seems inadequate.

9 Ibid., 1963, vol. II, pp. 216 and 217.101.C.J. Reports 1963, p. 34.


United Kingdom. The United Kingdom Governmentconsiders that the operation of paragraph l(b) may bedifficult in practice, especially if a treaty has been executedto a large extent or if formal legislative, or other internal,steps have been taken to give effect to it. Nor is it clearto the United Kingdom Government in what mannerand by whom the parties may be required to restore thestatus quo ante.

United States. In the view of the United States Govern-ment, the provisions of the article are a useful clarificationof the consequences resulting from the nullity of a treaty.

Salvadorian delegation. The Salvadorian delegation,while endorsing the article in general, states that it doesnot provide for the case where the fact that one party,having invoked its own error, is no longer bound toexecute the terms of the treaty may prevent the otherparty from executing it as well. In its view, provisionshould be made to enable the other party to continue toexecute the treaty. It also feels that, if the treaty producesbenefits for the parties, the question arises whether aparty is not entitled to call upon the "erring" party tocontinue to implement those terms of the treaty whichproduce the benefits, notwithstanding that the nullity ofthe treaty has been invoked. It considers that the presentarticle should be placed in part III since, in its view, thearticle deals with the effects of a treaty.u

Observations and proposals of the Special Rapporteur

1. The Government of Israel suggests that the articleshould distinguish more sharply between cases of nullityab initio and cases in which consent to a treaty may beinvalidated subsequently at the initiative of one of theparties. The original text of the article in the SpecialRapporteur's second report12 did distinguish betweencases of nullity ab initio and cases of subsequent invali-dation of the consent of a party at its initiative for thepurposes of their legal effects. The Commission, however,decided to treat all causes of invalidity as operating tonullify the treaty ab initio, except the emergence of a newrule of jus cogens which it dealt with as a special caseakin to termination of a valid treaty. The Commissionfelt that any differentiation in the effects of the invaliditythat would result from the application of articles 31-37should be based rather on the different nature of the vari-ous grounds of invalidity.

2. The Government of Israel also suggests that the articleshould be formulated with reference to the particular arti-cles creating invalidity rather than to the general conceptof invalidity. If this is done, it feels that difficulties of aterminological character will be reduced. The SpecialRapporteur in principle agrees with this suggestion, butfrom a drafting point of view it seems convenient to retainparagraph 1 in its present general form, and then inparagraph 2 to differentiate certain articles as specialcases. This is already done partially in the present text,but the statement of the articles to which paragraph 1

11 Official Records of the General Assembly, Eighteenth Session,Sixth Committee, 782nd meeting, para. 8.

w Yearbook of the International Law Commission, 1963, vol. II,article 27, p. 93.

does not apply should, it is thought, be made both morecomplete and more specific.3. The distinction at present made in the article isbetween cases where the invalidity does not result frommisconduct committed by one party in order to obtainthe other's consent (paragraph 1) and cases where itdoes result from one party's having defrauded or coercedthe other (paragraph 2). In the first category of cases,acts done in good faith are not rendered illegal by reasononly of the invalidation of the treaty and each party isentitled to require the other to establish as far as possiblethe position that would have existed if the acts had notbeen performed. In the second category of cases, thewrongdoing party is not entitled to invoke either of theseprovisions. This category comprises cases falling underarticles 33, 35 and 36, and it is thought that specificreference should be made to these articles.

4. The article as at present drafted does not in termsdistinguish as a special case invalidity resulting fromconflict ab initio with a rule of jus cogens, that is, casesin which both parties in concluding the treaty havetransgressed a peremptory rule of international law. TheCommission, it is thought, assumed that in these casesit would not be open to any party to speak of "acts per-formed in good faith in reliance on the void instrument",so that these cases would automatically be excluded fromthe benefit of the relieving provisions contained in para-graph 1. However, in order to avoid any possible mis-understanding, it seems advisable specifically to exceptcases of jus cogens from the operation of paragraph 1 byadding a particular reference to article 37 in paragraph 2.

5. The further problem stems from the use of the phrase"becomes void" in article 45 to express the effect of theemergence of a new rule of jus cogens with which a treatyconflicts. Although the case is dealt with—and rightlydealt with—in that article as one of termination, the factthat the use of the word "void" introduces the terminologyof invalidity gives rise to a certain awkwardness in thedrafting of the present article. It is true that paragraph 2of article 53 by implication indicates that cases of invali-dity under article 45 are not intended to be embracedby the provisions of the present article. But there remainsa logical inconsistency in the drafting. The easiest wayof removing this inconsistency would be to express therule in article 45 in. terms of the treaty's law rather thanin terms of "nullity". However, in 1963 the Commissionshowed a preference for emphasizing in article 45 thatthe treaty becomes "void" as a result of the emergenceof the new rule of jus cogens. That being so, it may bedesirable, purely for reasons of drafting, expressly toreserve cases of invalidity arising under article 45 fromthe application of the present article and to underlinethat it falls under article 53. This can easily be achievedby adding an appropriate clause in paragraph 2.

6. Another suggestion of the Government of Israel isthat paragraph l(a) should read: "The invalidity of atreaty shall not as such affect the legal consequences ofacts performed in good faith etc.". It maintains that theinvalidation of the consent to be bound by a treaty oughtnot in itself to impair claims based upon the allegedillegality of acts performed in reliance on the treaty. The

Law of Treaties 55

view taken by the Commission was that acts done ingood faith in reliance on the treaty at a time when bothparties conceived the treaty to be valid, and were con-ducting themselves on the basis of that assumption, oughtnot, as a general rule, to be converted into wrongfulacts by reason only of the subsequent invalidation of thetreaty. By inserting the words "as such", it underlinedthat the article deals only with the consequences of theinvalidity, and does not exclude the possibility thatillegality may attach to the acts for other reasons. Inconnexion with this point, the Special Rapporteur feelsthat the words "by itself" may perhaps be preferable to"as such", as well as corresponding more exactly with thewords in the French text.

The Special Rapporteur is not clear whether the Govern-ment of Israel thinks the Commission's view to beunsound, or whether it is simply the expression "thelegality of acts performed in good faith" to which ittakes exception. At any rate, the observations of the Inter-national Court in the Northern Cameroons case13 do notappear to touch in any way the questions which ariseunder the present article, since those observations relateto the quite different situation of acts done at a time whenthe treaty was not only conceived by the parties to bevalid, but was in fact valid and effective to create definitivelegal rights and obligations. They concern the case oftermination of a treaty, and may require considerationin connexion with article 53, but do not seem to theSpecial Rapporteur to introduce any new element intothe examination of the present article. As to the expres-sion "the legality of acts performed in good faith etc.",the other expression "the legal consequences etc.", pre-ferred by the Government of Israel was in fact consideredand rejected by the Drafting Committee in 1963. This isbecause it seems impossible to say that the invalidationof a treaty will not affect the legal consequences of anact performed in reliance on the treaty. Paragraph 1(6)is based on the very supposition that the legal conse-quences of the act are affected by the nullity of the treaty.If the Commission in 1963 did not find it altogether easyto find the right phrase, it came to the conclusion thatthe phrase "does not affect the legality of the acts"—"n'affecte pas le caractere legitime" in the French text—was the most appropriate to express the rule in para-graph \{a).

7. In paragraph \{b), two Governments query theadequacy of the expression "The parties to that instru-ment may be required". To meet their criticism, and havingregard to the classes of cases of invalidity with whichparagraph 1 deals, it may be preferable to revise para-graph \{b) so as to make it read: "The parties to the voidinstrument may require each other, etc.".

8. In paragraph 2, as invalidity may result from twodifferent kinds of coercion under two separate articles(articles 35 and 36), it seems desirable to specify theactual articles to which the paragraph has reference, andin that event to specify also the article dealing with fraud.It is also felt that the paragraph may read more smoothlyif the second half of the sentence is placed first.

181.C.J. Reports 1963, pp. 34 and 35.

9. Since the texts of the substantive articles adopted bythe Commission all speak of invalidity rather than nullity,the Special Rapporteur thinks it desirable that the sameterm should be used in the present article.

10. In the light of the above observations the SpecialRapporteur proposes that the article should be revisedon the following lines:

1. (a) The invalidity of a treaty shall not by itself affect thelegality of acts performed in good faith by a party in relianceon the void instrument before the invalidity of the instru-ment was invoked.(b) However, a party to the void instrument may requireany other party to establish as far as possible the positionthat would have existed between them if the acts had notbeen performed.

2. A party may not invoke the provisions of paragraph 1 ifthe invalidity results:

(a) under articles 33, 35 or 36, from fraud or coercionimputable to that party;

(jti) under article 37, from the conflict of the treaty with aperemptory norm of general international law;

(c) under article 45, from the emergence of a new peremptorynorm of general international law, in which case article 53applies.3. The same principles apply with regard to the legal con-

sequences of the invalidity of an individual State's consent to bebound by a multilateral treaty.

Article 53.—Legal consequences of the termination of atreaty


Israel. The Government of Israel suggests that para-graph l(b) should be revised to read: "Shall not affectthe legal consequences of any act done in conformitywith the provisions of the treaty while that treaty wasin force or...". Secondly, it suggests that, for reasonssimilar to those given in its comments on article 52,paragraph 1 might be clearer if it were to specify thearticles of part II to which the present article relates.Thirdly, it reserves its position concerning paragraph 2pending the Commission's decision regarding the prob-lems of the inter-temporal law which arise in connexionwith article 45. In addition, it suggests that the commen-tary should make it clear that, once a treaty is terminated,it can only be revived by some formal treaty (in the senseused in the draft articles). It explains that in Israel, whenan enactment repealing a former law is itself repealed,the repeal of the latter enactment does not revive the lawpreviously repealed unless the later enactment expresslyso provides; and that it assumes the position regardingtreaties in international law to be the same.

Netherlands. The Netherlands Government suggeststhat paragraph 3(c) should be modified so as to read:

"The legality of any act done in conformity with theprovisions of the treaty prior to the date upon whichthe denunciation or withdrawal has taken effect andthe validity etc.".

In support of its suggestion, it points out that sometreaties remain in force for a certain period after noticeof termination has been given.


Portugal. The Portuguese Government expresses doubtsregarding paragraph 2 which provides that, where a ruleof jus cogens is the cause of the nullity of the treaty,a situation resulting from the operation of the treaty isto retain its validity only to the extent that it is not inconflict with the rule of jus cogens. In its view, it wouldbe more equitable in these cases to apply the rule inparagraph 1 and to respect in toto situations legitimatelycreated prior to the date when the nullity of the treatysupervened because of the development of a new rule ofjus cogens. At the same time, it concedes that the solutionproposed in paragraph 2 may accord better with theimperative nature of the supervening norm.

Sweden. The Swedish Government considers that thedivision between paragraph 2 of the present article andarticle 52 is not obvious and requires clarification. Asarticle 52 deals with the nullity of treaties, it presumesthat that article covers all treaties termed "void"—a termwhich is found in article 52, paragraph l(a); yet article 53,paragraph 2, also refers to treaties which are void. Itfurther suggests that, in paragraph l(a) of the presentarticle, it may be preferable to speak of releasing parties"from any further obligation to apply a treaty" ratherthan "from any further application of the treaty"; andit draws attention to the fact that the former phrase isthe one used in article 54. In addition, it feels that, inparagraph 2 the expression "a situation... shall retainits validity" may be in need of improvement.

United Kingdom. The United Kingdom Governmentcomments that the article does not make provision withregard to the accrued obligations of a State under a treatyat the time of its denunciation by that State. In the SixthCommittee, the United Kingdom delegation also com-mented that paragraph 2 throws no light on the kindsof situation envisaged by it and that the application ofthe paragraph is likely to give rise to difficulties. In partic-ular, it felt that where the treaty's provisions have alreadybeen executed, it may be extremely difficult to restorethe status quo.

United States. In the view of the United States Govern-ment the provisions of this article constitute a usefulclarification of the consequences of the termination ofa treaty.


1. In paragraph \{a), the observation of the SwedishGovernment that it may be preferable to speak of releas-ing parties from "any further obligation to apply thetreaty" is thought to be justified, as this phrase is perhapsmore precise.

2. In paragraph \{b), in line with its suggestion regard-ing the previous article, the Government of Israel suggeststhat the text should specify the articles of part II to whichthis sub-paragraph relates. In the present article, however,this does not seem necessary, since an exception is madeonly of one article—article 45 (emergence of a new rule ofjus cogens)—and article 45 is already mentioned specifi-cally in paragraph 2.As in the previous article, the Government of Israel alsosuggests that the operative words should read: "shall not

affect the legal consequences of any act etc.". TheSpecial Rapporteur does not think that this change wouldbe an improvement. The article is concerned with thelegal consequences of the termination of a treaty, andnot—at any rate directly—with the legal consequencesof acts done under the treaty. On the other hand, thequestion does arise whether it is completely sufficient toprovide that the termination of a treaty "shall not affectthe legality of any act done in conformity with the provi-sions of the treaty or that of any situation resulting fromthe application of the treaty". It is here that the NorthernCameroons case,14 already referred to by the Governmentof Israel in connexion with article 52, appears to call forconsideration, as also the observation of the UnitedKingdom Government that paragraph 1 does not makeprovision with regard to "the accrued obligations of aState under a treaty at the time of its denunciation by thatState". The Commission certainly assumed that obliga-tions already accrued and rights already vested under thetreaty before its termination could not be affected by thelatter event, unless the treaty otherwise provided or theparties otherwise agreed; and this was intended to beimplied from the provision, in paragraph \{a), that theparties are released from any further application of thetreaty. However, the implication from that provision maynot be so unambiguous as to exclude any possibility ofmisunderstanding. Moreover, the very fact that there isan express provision in sub-paragraph (b) safeguardingthe legality of acts done in conformity with the treatymay increase the need to include a provision regardingaccrued rights and obligations so as to avoid any riskof doubt on the point. It is therefore proposed that a newsub-paragraph should be added to paragraph 1 preservingaccrued rights and obligations.

3. In paragraph 2, the Swedish Government requeststhat the relation between the cases of invalidity under thisparagraph and those under article 52 should be clarified.This request will, however, be met if the Commissionendorses the Special Rapporteur's proposal in para-graph 5 of his observations on the previous article; thatis, if a clause is added to article 52, paragraph 2, under-lining that cases of invalidity due to the emergence ofa new rule of jus cogens fall under the present article.The United Kingdom Government's comment that theparagraph does not throw light on the kinds of situationenvisaged by it appears to be a criticism of the uncertaincontent of jus cogens articles in line with its criticisms ofarticles 37 and 45, which the Commission has alreadyhad under consideration when revising those articles.Its further point that, where the treaty's provisions havealready been executed, it may be extremely difficult torestore the status quo, may be true as a statement of factbut it does not seem to touch the principle laid down inparagraph 2. Unlike paragraph l(b) of article 52, para-graph 2 of the present article does not call for the restora-tion of the status quo as such. Its object is a quite differentone. When a treaty terminates owing to its conflict witha rule of jus cogens subsequently established, it will bebecause any further performance of the treaty will havebecome contrary to a peremptory norm of general inter-

14 Ibid.

Law of Treaties 57

national law from which no derogation whatever ispermitted. Nevertheless, it would be inadmissible toregard the emergence of the new rule of jus cogens asretroactively rendering void acts done at a previous timewhen they were not contrary to international law; andparagraph \{b) of the present article accordingly preservesthe legality of such acts. The purpose of paragraph 2 isonly to underline that, by so doing, paragraph \{b) isnot to be understood as authorizing the further enforce-ment of a situation resulting from the application of thetreaty, if such further enforcement would otherwise beillegal by reason of the new rule of jus cogens. In otherwords, paragraph l(b) is not to be understood as recogniz-ing vested rights to commit breaches of peremptory rulesof general international law. This being so, the PortugueseGovernment's doubts about the rule laid down in para-graph 2 and its preference for the application of para-graph l(b) in toto do not appear to be well-founded.On the other hand, the principle stated in paragraph 2is not altogether easy to formulate, and the doubtsexpressed by Governments may partly concern the phrase"a situation resulting from the application of the treatyshall retain its validity only to the extent that it is notin conflict etc.". The Swedish Government, at any rate,expresses the view that the phrase "a situation...shallretain its validity" needs improving. The Special Rap-porteur feels that this criticism may be justified since thisphrase perhaps leaves it doubtful whether it refers merelyto the situation's validity on the temporal plane of thelaw in force prior to the emergence of the new rule ofjus cogens, or to its validity as a still living situationlegally recognized under the regime of the new rule ofjus cogens. Accordingly, it seems desirable to look foranother phrase, and the Special Rapporteur suggestsfor consideration the following:

a situation resulting from the application of the treaty maybe maintained in force only to the extent that its maintenancein force does not conflict etc.

4. Paragraph 3 applies the general principles laid downin paragraph 1 to the special case of a single State'sdenunciation of or withdrawal from a multilateral treaty.The Netherlands Government suggests, with reference tosub-paragraph (c), that account should be taken of thepossible time-lag between the giving of a notice ofdenunciation or withdrawal and its taking effect; inother words, it suggests that the operative date for theapplication of sub-paragraph (c) is the date of "takingeffect" and not necessarily that of "denunciation" or"withdrawal". This suggestion is clearly well-founded,but the Special Rapporteur thinks it equally clear thatthe point affects the whole paragraph and not merelysub-paragraph (c). At the same time, the Special Rap-porteur feels that, as paragraph 3 simply restates in threesub-paragraphs the two general rules contained in para-graph 1, it should be possible to shorten the text byreferring to paragraph 1 and adapting its rules to thecontext of a single State's denunciation or withdrawal.Accordingly, he suggests that the paragraph should bereconstructed so as to shorten it and to incorporate thepoint made by the Netherlands Government.

5. The Special Rapporteur also feels that it may bepreferable to reverse the order of paragraphs 2 and 3.Paragraphs 1 and 3 of the existing text state generalrules for every-day situations. Paragraph 2, on the otherhand, states an exceptional rule for a highly exceptionalcase. No doubt, the present order is justifiable on thelogical ground that, like paragraph 1, paragraph 2 con-cerns the termination of the treaty between all the parties,whereas paragraph 3 concerns only a single party'sdenunciation or withdrawal. But on general grounds itmay be better to state the normal rules first.

6. The Special Rapporteur has given consideration to thequestion whether it is necessary to make special provisionfor cases of termination in response to a breach of thetreaty, that is, for cases under article 42. The chief pointin these cases would seem to be to ensure that, by terminat-ing the treaty, the injured party shall not prejudice theright to reparation accruing to it in consequence of thebreach. The Special Rapporteur suggests that, if hisproposal in paragraph 2 above for the addition of athird clause in paragraph 1 safeguarding accrued rightsand obligations is accepted, the case of termination inresponse to a breach can conveniently be covered byspecifying in that clause that accrued rights and obliga-tions include those arising from a breach of the treaty.

7. Paragraph 4, as explained in the introduction to thissection, is no longer necessary because its substance hasbeen transferred to section I of this part as a generalrule (article 30(bis)).

8. In the light of the above observations the SpecialRapporteur proposes that the article should be revisedto read as follows:

1. Subject to paragraph 3, and unless the treaty otherwiseprovides, the lawful termination of a treaty shall:

(a) release the parties from any obligation further to applythe treaty;

(b) not affect the legality of any act done in conformity withthe treaty or that of a situation resulting from the applicationof the treaty;

(c) not affect any rights accrued or any obligations incurredprior to such termination, including any rights or obligationsarising from a breach of the treaty.2. In the case of a particular State's denunciation of or

withdrawal from a multilateral treaty, paragraph 1 applies in therelations between that State and each of the other parties to thetreaty from the date when such denunciation or withdrawaltakes effect.

3. If a treaty terminates on account of its having become voidunder article 45, a situation resulting from the application of thetreaty may be maintained in force only to the extent that itsmaintenance in force does not conflict with the norm of generalinternational law the establishment of which has rendered thetreaty void.

Article 54.—Legal consequences of the suspension of theoperation of a treaty


Israel. The Government of Israel begins by statingits assumption that this article does not refer to theconsequences on the operation of a treaty of the suspen-sion of diplomatic relations between the parties or, in


the case of a multilateral treaty, between some of theparties. It then makes the suggestion that the articleshould specify the substantive articles to which it refers.In this connexion, it points out that the suspension ofthe operation of a treaty is mentioned in articles 30, 40,41, 42, 43, 46, 49 and 50; and that articles 42 and 43 alsoraise the possibility of the suspension of the operationof a part of a treaty. In addition, it makes the furthersuggestion that, having regard to the peremptory effectof the termination of a treaty, an option to suspend theoperation of a treaty should be extended to cases fallingunder articles 39 and 44. This would, it thinks, have theadvantage of rendering possible a later resumption ofthe operation of the treaty.

Netherlands. The Netherlands Government merelystates that it has no comments on this article.

Portugal. The Portuguese Government analyses theprovisions of the article and appears in general to endorsethem.

Sweden. The Swedish Government observes, thatalthough the provisions of this article are less complexthan those of the previous articles, further illustrationof the effect of the abstract rules might provide usefulclarification.

United States. The United States Government observesthat, if one party to a multilateral treaty suspends theoperation of the treaty with respect to one other party,only the latter party should be relieved of the obligationto apply the treaty, unless the nature of the treaty is suchthat the suspension affects the immediate interests of allparties. It accordingly recommends that paragraph \{a)should read:

"Shall relieve the parties affected from the obligationto apply the treaty".


1. The Government of Israel's assumption that thisarticle was not designed to cover the consequences ofthe suspension of diplomatic relations on the operationof a treaty was, of course, correct. The Commission,when it drafted the article, had not yet considered theeffect of the suspension of diplomatic relations on thetreaty relations of the States concerned. This questionwas taken up at the sixteenth session, and the Commissionadopted article 64 which, after laying down that theseverance of diplomatic relations does not in generalaffect the legal relations established by the treaty,provided:

"However, such severance of diplomatic relationsmay be invoked as a ground for suspending the opera-tion of a treaty if it results in the disappearance of themeans necessary for the application of the treaty."15

In short, article 64 now provides for a further case ofsuspension of the operation of a treaty very similar tothat in the second sentence of article 43 (temporaryimpossibility of performance). Furthermore, article 64

16 Yearbook of the International Law Commission, 1964, vol. II,p. 192.

also makes express provision for the application of theprinciple of "separability" to this case. Accordingly, itseems both logical and necessary that the provisions ofthe present article regarding the legal consequences ofthe suspension of a treaty's operation should be madeapplicable to article 64. Exactly in what way this shouldbe done is a matter of drafting which is to some extentdependent on the place ultimately allotted to article 64in the order of the draft articles. There are no compellingreasons why the article should be retained in its presentposition at the end of the section dealing with "the applica-tion and effects of treaties". Indeed, the Special Rapporteurwould prefer to see it moved either to a position closeafter "pacta sunt servanda" or else to the section dealingwith the termination and suspension of the operation oftreaties. Whatever place is given to article 64 in the finalscheme of the draft articles, a form of words can easilybe found to bring it within the scope of the presentarticle.As to the Government of Israel's suggestion that thepresent article should specify all the substantive articlesto which it has reference, this again is a matter of draftingwhich can perhaps best be decided when the final arrange-ment of the draft articles is more nearly settled. Thepresent general form of the article would appear to bemore elegant and even safer than one containing a long listof the articles which may give rise to cases of suspension.But the preferable course is thought to be to return tothe point when the draft articles as a whole are nearerto completion.

2. The Swedish Government's suggestion that "furtherillustration of the effect of the abstract rules might provideuseful clarification" seems to concern the commentaryrather than the article itself. Since the draft articles arebeing prepared as a draft convention rather than as acode, illustrations could hardly find a place in the presentarticle.

3. The United States justly draws attention to the factthat the text, as at present drafted, does not take accountof cases of a suspension of the operation of a treaty asbetween only two parties to a multilateral treaty. Thepoint is, indeed, a little broader than that since suspensionmay take place between a group of States, while arti-cle 42 (cases of breach) contemplates that all the otherparties may, in certain circumstances, decide to suspendthe operation of a treaty vis-a-vis a defaulting State,though not as between themselves. It therefore seemsnecessary to cover the point, as in articles 52 and 53,by the addition of a paragraph dealing specially withmultilateral treaties. The Special Rapporteur accord-ingly proposes that a new paragraph should be insertedbetween paragraphs 1 and 2 in the following form:

In the case of the suspension of the operation of a multilateraltreaty:

(a) with respect to one party, paragraph 1 applies only inthe relations between that party and each of the other parties;

(b) between certain of the parties, paragraph 1 applies onlyin the mutual relations of those parties.

Law of Treaties 59

Revision of part III of the draft articles in the light of thecomments of Governments

Title and arrangement of the articles

The Special Rapporteur, as mentioned in paragraph 7of the introduction to this report, has elsewhere givenhis reasons for thinking that a considerable rearrangementof the order of the draft articles is necessary.16 Thisrearrangement relates particularly to the articles in part IIIand the Special Rapporteur does not, therefore, think ituseful to discuss in detail here the title of the part, thearrangement of the articles or their place in the finalscheme of the draft articles. These matters must nowawait the general consideration of the final structure ofthe draft articles by the Drafting Committee and by theCommission when it has concluded its first revision ofall the articles. Consequently, the Special Rapporteurwill not at this stage comment on the titles to part IIIand its various sections or on the general arrangementof the articles.

Article 55.—Pacta sunt servanda


Cyprus. The Government of Cyprus endorses the inclu-sion of the words "in force" in the Commission's formu-lation of the pacta sunt servanda rule: "A treaty in forceis binding, etc.", saying that the rule would be erroneousand misleading if stated without that qualification. Itcomments that article 55 must consequently be readsubject to the considerable number of articles which maymilitate against a given treaty being in force, and especiallythose dealing with invalidity and termination. It alsorefers to the provision in Article 2, paragraph 2, of theCharter that Members "shall fulfil in good faith theobligations assumed by them in accordance with thepresent Charter", concluding that the difference in for-mulation between that provision and article 55 is notmaterial. Then it discusses the particular cases of treatieswhich may be invalid on the grounds specified in articles 36(coercion of the State) and 37 (conflict with jus cogens),or terminated under article 42 (response to a materialbreach), without, however, noting the role of article 51in the application of these articles.

Czechoslovakia. The Czechoslovak Government com-ments that the pacta sunt servanda rule is of considerablesignificance for the strengthening of peaceful coexistenceand co-operation in economic, technical, social and culturalfields. It suggests that either in the text or in the commen-tary it should be indicated that "treaty in force" meansa treaty concluded freely and on the basis of equality inaccordance with international law. In this connexion itrecalls its Draft Declaration of the Principles of PeacefulCoexistence (A/C.6/L.505)17 and suggests that the finaltext of the article should incorporate the results of thediscussion in the General Assembly concerning the codi-fication of the principle that States shall fulfil in good

faith the obligations assumed by them in accordancewith the Charter.

Finland. The Finnish Government suggests that theremight be advantage if the article were also to state thata party must abstain from acts calculated to frustrate theobjects and purposes of the treaty. In its view, this wouldcomplete the article by putting it in accord with provi-sions in other articles stating this point.

Israel. The Government of Israel believes the title tothe article to be narrower than the scope of the articleitself. It assumes that the article will ultimately be com-bined with article 30 (presumption as to the validity,continuance in force and operation of a treaty). It alsoconsiders that, having regard to its fundamental character,the pacta sunt servanda principle should be placed at thebeginning of the draft articles; and it notes that in theCharter the principle appears in the preamble. At thesame time, it considers that the principle of good faithhas a broader scope than the "application and effects" oftreaties and is particularly appropriate with regard to theapplication of the draft articles themselves. In its view,therefore, it is necessary to avoid formulating the presentarticle in a way to give the impression that the principleof good faith is limited to the application of treaties.

The Government of Israel further suggests that somemention should be made—at least in the commentary—ofthe interrelation between the present article and article 24concerning "provisional entry into force". In these casesit assumes that the pacta sunt servanda principle wouldapply to the underlying agreement upon which the pro-visional entry into force is postulated.

The Government of Israel notes with approval thestatement in paragraph 4 of the commentary that theCommission considers the duty of a party to abstain fromacts calculated to frustrate the objects and purposes ofthe treaty to be implicit in the obligation to perform thetreaty in good faith. It adds the somewhat cryptic obser-vation that "it is not clear whether the discordancebetween the three versions is a reflection of transientdifficulties". This is presumably a reference to the differ-ence in the formulation of the English text "A treaty inforce etc." as against the French and Spanish texts"Tout traite en vigueur" and "Todo tratado en vigor".

Turkey. The Turkish Government considers the Com-mission's restatement of the pacta sunt servanda rule to beuseful and necessary "in view of the opinions which havebeen advanced during the last few years"; and that itseffectiveness is enhanced if it is reinforced by the principleof good faith. It feels that the text is not fully satisfactoryon the latter point and suggests the addition of a provisionstipulating that the parties to a treaty must refrain fromacts calculated to prevent the application of the treaty,on the lines of paragraph 2 of the Special Rapporteur'soriginal draft.18 It also suggests the desirability of includ-ing a provision, such as appeared in paragraph 4 of theSpecial Rapporteur's original draft, regarding the respon-sibility under international law which attaches to a Statein the event of its not respecting its treaty obligations.

16 Ibid., 1966, vol. I, part I, 822nd meeting, para. 19.17 Official Records of the General Assembly, Seventeenth Session,

Annexes, agenda item 75.18 Yearbook of the International Law Commission, 1964, vol. II,

p. 7.


In this connexion, it points out that article 63, paragraph 5,contains a specific provision regarding State responsibilityand suggests that this makes it the more necessary toinclude the point in the present article.

United States. The United States Government considersthat the pacta sunt servanda rule is clearly and forcefullydenned in the article, at the same time observing that itis "the keystone that supports the towering arch ofconfidence among States".

Argentine,19 Byelorussian,20 Kenyan21 and United ArabRepublic 22 delegations. These delegations express in gene-ral terms their approval of the article.

Ecuadorian delegation. The Ecuadorian delegation,recalling Article 2, paragraph 2, of the Charter, stressesthe element of good faith in the observance of obligationsand points out that Article 2, paragraph 2, speaks of"obligations assumed...in accordance with the presentCharter." It then lists a number of principles containedin the Charter which in its opinion have become rulesof jits cogens, cites Article 103 of the Charter and statesthat the rule pacta sunt servanda cannot redeem an inter-national agreement which violates provisions of the Char-ter. It then makes certain observations concerning theapplication of the provisions of the Charter to treatiesconcluded by Members of the United Nations before andafter its entry into force. Emphasizing that it has no inten-tion of disavowing the principle of pacta sunt servanda,it maintains that recognition of the various causes ofnullity will strengthen rather than weaken it. **

Nigerian delegation. Commenting on the fact that thearticle limits the application of the pacta sunt servandarule to treaties in force, the Nigerian delegation expressesthe view that the rule should be stated in more categoricalterms. It considers that the restrictive words should bedropped, more especially in view of the Commission'sadoption of article 30 (Validity and continuance in forceof treaties).2i

Pakistan delegation. Underlining the importance whichit attaches to the principle of pacta sunt servanda, thePakistan delegation insists that care should be taken toensure that it is not impaired or undermined in therules formulated in the draft articles. In this connexion,it refers to the doctrine of the clausula rebus sic stantibuswhich, it says, should be understood as "a rule of construc-tion which secures that a reasonable effect shall be givento a treaty, rather than the unreasonable one which wouldresult from a literal adherence to its expressed termsonly". And it observes that, even as a rule of construction,it should be applied only by agreement of the parties orby an impartial agency, judicial or arbitral.26

19 Official Records of the General Assembly, Twentieth Session,Sixth Committee, 846th meeting, para. 9.

20 Ibid., 842nd meeting, para . 34.21 Ibid., 850th meeting, para . 37.22 Ibid., 847th meeting, para . 28.23 Ibid., 849th meeting, para. 37.21 Ibid., 847th meeting, para. 16.26 Ibid., 851st meeting, paras. 4 and 6.

Observations and proposals of the Special Rapporteur1. The Government of Israel considers that the pactasunt servanda principle should be placed at the beginningof the draft articles. It urges that the principle appearsin the preamble to the Charter, and also that care mustbe taken in the formulation of the present article to avoidgiving the impression that the principle of good faithis limited to the application of treaties. It observes thatthe principle of good faith has a broader scope than theapplication and effects of treaties and is particularlyappropriate with regard to the application of the draftarticles themselves. The Special Rapporteur has morethan once indicated to the Commission his own viewthat the present article should be placed in an earlierposition in the final scheme of the draft articles, and hebelieves that this view is widely held in the Commission.The supreme importance of the pacta sunt servandaprinciple in the law of treaties is common ground. Onthe other hand, it may be doubted whether the articleformulating the principle would really gain much inlegal content by being introduced prematurely out ofits logical place in an orderly exposition of the law oftreaties. Part I, as at present arranged, begins with generalprovisions, the effect of which is to explain and narrowthe scope of the draft articles; and to precede these pro-visions with a staccato statement of the pacta sunt ser-vanda rule might not seem very satisfactory from a scien-tific point of view. The Special Rapporteur feels that theappropriate place for the present article is immediatelyfollowing part I, and that the preoccupation of theGovernment of Israel should be met rather by a strongparagraph in a preamble to the draft articles. It has notbeen the practice of the Commission to prepare texts ofpreambles for its draft articles. But there would not seemto be any objection to the Commission's suggesting that,either in the language of the preamble to the Charteror in some similar form, the pacta sunt servanda principleshould be given strong emphasis in a preamble to thedraft articles.

As to the point about good faith, the Special Rapporteurdoubts whether the draft articles as a whole could besaid to give the impression of limiting the principle ofgood faith to the application and effects of treaties.Article 69 contains a strong affirmation of the principleof good faith in stating the general rule for the inter-pretation of treaties. In short, the draft articles provide ex-pressly for "good faith" in both the interpretation and theapplication of treaties. In addition, article 17 (Obligationof a State not to frustrate the object of a treaty prior toits entry into force), although it does not now in its revisedform actually mention good faith, specifically requiresthe maintenance of a certain standard of good faithbetween negotiating States, even before the conclusionand entry into force of the treaty. Good faith is, indeed,an element which is inherent in the legal relations ofStates; and it is not thought that by specifying it ingeneral terms in the present article and in article 69(general rule of interpretation), the draft articles canlegitimately be interpreted as throwing doubt on^thegenerality of the principle in the law of treaties. Indeed,there is not very much that cannot be brought within theconcepts of "interpretation" and "application of treaties".

Law of Treaties 61

But again, it would be possible to give supplementaryemphasis to the principle of good faith by appropriatelanguage in the preamble.2. One Government (Cyprus) specifically endorses theinclusion of the qualifying words "in force" in the expres-sion "A treaty in force is binding, etc.". On the otherhand, one delegation (Nigerian) feels that the words arerestrictive and should be dropped, more especially in viewof the adoption of article 30. In point of fact, article 30has undergone some modification in the course of itsrevision at the second part of the seventeenth session andno longer takes the form of a presumption as to the vali-dity, continuance in force and operation of a treaty.Apart from that, however, the question of including thewords "in force" was discussed in 1964 when the argu-ments against doing so were before the Commission. Onbalance, as explained in paragraph (3) of its commentary,the Commission considered that, having regard to otherprovisions in the draft articles, it is necessary on logicalgrounds to include those words. Those provisions dealwith entry into force, provisional entry into force,obligations resting on negotiating States prior to entryinto force, and grounds of invalidity and termination.26

The Commission accordingly felt that, from a draftingpoint of view, it is really necessary to specify that it isto treaties in force that the pacta sunt servanda rule applies.A further consideration is that the term treaty is definedin article 1 as "an international agreement concludedbetween States in written form, etc.", without any mentionof the element of being "in force"; and the draft articlesthen go on to distinguish clearly between the two phasesof treaty-making, "conclusion" and "entry into force".Certain Governments and delegations link the words "inforce" specially with grounds of nullity or termination,with the question of "equal" treaties, or with the provisionin Article 2, paragraph 2, of the Charter that Membersshall "fulfil in good faith the obligations assumed bythem in accordance with the present Charter". The latterprovision seems primarily to concern the obligations ofMembers under the Charter itself and only indirectly,through articles 36 and 37 of the draft articles, to affectthe validity of treaties. In any event, the questions touchedon by these Governments and delegations have beenconsidered by the Commission in connexion with thevarious articles on the grounds of invalidity, and thepresent article naturally assumes the concurrent applica-tion of other provisions of the draft articles. In 1964,the Commission attached considerable importance toformulating the pacta sunt servanda rule in the simplestpossible terms.

3. The Government of Israel suggests that mentionshould be made—at least in the commentary—of theinterrelation between the present article and article 24,concerning "provisional entry into force". And it indicatesthat, in its view, the pacta sunt servanda rule would applyto the "underlying agreement upon which the provisionalentry into force is postulated". Article 24 has in factundergone some revision at the first part of the seven-teenth session; but the Commission did not, either in

26 Yearbook of the International Law Commission, 1964, vol. II,p. 177. 27 Ibid., p. 7.

1962 or in 1965, seek to specify what precisely is the sourceof the parties' obligations in cases of provisional entryinto force. Article 24, as it now reads, states the lawunambiguously in terms of the treaty's entering intoforce provisionally; in other words, under article 24 thetreaty is stated as being brought "into force". Conse-quently, there does not appear to be any need in thepresent article to make special reference to "treaties pro-visionally in force". Under the present article, the pactasunt servanda rule is expressed to apply to every "treatyin force", and that would seem to be sufficient. At most,a brief reminder in the commentary that treaties may bein force under article 24 as well as under article 23 (Entryinto force of treaties) would seem to be indicated.

4. Two Governments (Finland and Turkey) suggest thata provision should be added to the article specificallyrequiring the parties to refrain from acts calculated tofrustrate the objects and purposes of the treaty. Theoriginal proposals of the Special Rapporteur in his thirdreport did contain such a provision in the form: "goodfaith, inter alia, requires that a party to a treaty shallrefrain from any acts calculated to prevent the due exe-cution of the treaty or otherwise to frustrate its objects". 27

The Commission, however, considered that this obligationis implicit in the obligation to perform the treaty in goodfaith. Preferring to state the pacta sunt servanda rule inas positive and simple a form as possible, it decided notto spell out in the article this secondary aspect of the rule.The main argument for including a specific provision onthe point is that indicated by the Finnish Government,namely, the fact that such an obligation is expressly laidupon States by article 17 in certain circumstances priorto the entry into force of a treaty. The argument is thata fortiori that obligation must be laid upon the partiesto a treaty in force. But the very reason for dealing withthe point in article 17 is the fact that in the circumstancesthere stated the treaty is not as such binding on the parties;and the case is quite different when the treaty itself isbinding on the parties. In short, the Special Rapporteurshares the view of the Commission that this obligationis implicit in the pacta sunt servanda rule as formulatedin the present article.

5. The Turkish Government also suggests that thearticle should include a provision, on the lines of para-graph 4 of the Special Rapporteur's original proposals,regarding the international responsibility which attachesto a State in the event of its failure to comply with itstreaty obligations. Although the point is not referred toin the commentary, it was fully considered by the Com-mission, which decided that it should be left to be coveredin the draft articles on State responsibility. As the formu-lation of the point in paragraph 4 of the Special Rappor-teur's third report indicates, it is not possible to statesuch a rule without taking account of the detailed rulesapplicable to State responsibility. The Commission pre-ferred not to trespass upon the law of State responsibilityin any way in the present articles, which essentially con-cern the creation, interpretation, application, terminationand modification of treaty obligations rather than thereparation to be made in the event of their breach. The


point made by the Turkish Government that article 63,paragraph 5, already contains a provision regardingState responsibility does not seem to the Special Rappor-teur to be persuasive. This provision is concerned onlywith preserving any obligation to make reparation whichmay attach to a party under the law of State responsibilityby reason of a breach of a treaty. It does not purportto provide for that obligation which it treats as belongingto the law of State responsibility.

6. Finally, there is the Government of Israel's pointthat the English version "A treaty" does not exactlycorrespond with the other versions "Tout traite"—"Todotratado". Although the majority of articles refer to "a"treaty, the use of the word "every" seems appropriatein the present instance, in order to give maximum empha-sis to the pacta sunt servanda rule. Accordingly, it isproposed that the English version should be broughtinto line with the others by changing the opening wordsto "Every treaty in force".

Article 56.—Application of a treaty in point of time


Israel, The Government of Israel feels that the concord-ance of the three language versions requires further closeexamination. It also raises the question of the interrelationof this article with article 24 (provisional entry into force).

Netherlands. The Netherlands Government, having readparagraphs 5 and 7 of the commentary, is neverthelessnot convinced of the desirability of employing a differentformula at the end of paragraph 2 from that used at theend of paragraph 1. In its view, the possibility that "thevery nature of the treaty" may indicate that it is intendedto have certain legal consequences even after its termina-tion ought not to be expressly excluded. Accordingly, itproposes that the same formula—unless the contraryappears—should be used in both paragraphs. The Nether-lands Government further compares the expression "anysituation which exists", found in paragraph 2, with theexpression "any situation which ceased to exist", foundin paragraph 1. It interprets the expression in paragraph 2as meaning "any situation which comes into existence",and proposes that this should be substituted for "anysituation which exists". In sum, therefore, it suggeststhat paragraph 2 of the article should be revised to read:

"Subject to article 53, the provisions of a treaty donot apply to a party in relation to any fact or act whichtakes place or any situation which comes into existenceafter the treaty has ceased to be in force with respectto that party, unless the contrary appears from thetreaty."

Turkey. The Turkish Government, while recognizingthe general principle stated in the article, considers thatthe exception should be restricted to more specific anddefinite cases. It suggests that, at the end of paragraph 1,the words "unless the contrary appears from the treaty"should be replaced by "unless the treaty stipulatesotherwise".

United States. The United States Government observesthat paragraph 1 will not only be helpful to Governments

in the correct consideration of treaty rights and obliga-tions in point of time but will remind draftsmen that aretroactive effect can be accomplished by a provisionspecifically designed or clearly intended for that purpose.With regard to paragraph 2, it draws attention to theremarks in paragraph (7) of the Commission's commen-tary concerning acquired rights resulting from the illegalityof acts done while the treaty was in force.28 It thensuggests that account should also be taken of acquiredrights resulting from the operation of the treaty. To thisend, it proposes that at the end of paragraph 2 the words"unless the treaty otherwise provides" should be replacedby "unless the contrary appears from the treaty".

Chilean delegation. In commenting upon article 36(coercion of the State) the Chilean delegation expressesthe view that it should be stated whether the article isto take effect from 1945, the date of the adoption of theCharter, or from the date of the entry into force of theconvention on the law of treaties. It observes that thefirst alternative, which might call in question most ofthe peace-treaties closing the Second World War, seemsto be excluded by article 56. It prefers, however, that thedraft articles should state explicitly that neither article 36nor any of the other articles establishing grounds forinvalidating a treaty would have retroactive effect. 29

Greek delegation. The Greek delegation thinks that theusefulness of the article lies chiefly in its emphasis on theexception to the principle of non-retroactivity; i.e., onthe possibility that the parties may give a treaty retroactiveeffects if they so desire. As to paragraph 2, it finds it hardto see any exception to the rule that acts, facts or situationspost-dating the expiry of a treaty do not fall within thescope of the treaty. In its view, if a treaty is applicableto such acts, facts or situations, it is in force. It interpretsprovisions like article XIX of the Convention on theLiability of Operators of Nuclear Ships30 as in realityextending the force of the treaty beyond the date set forits duration. On this basis, it considers that the words"unless the treaty otherwise provides" should be deleted.In addition, it observes that the article does not settlethe question whether the provisions of a treaty apply tofacts, acts or situations falling partly within the periodwhen it is in force, although paragraph (4) of the commen-tary answers the question in the affirmative. It considersthat this is insufficient and that an explicit provisionshould be included to cover the point.S1


1. The Government of Israel raises two general pointswith respect to the article. The first is the concordanceof the versions of the article in the different languages.The Special Rapporteur concurs that special care isnecessary on this point in the present article, becausethe rules which it sets out incorporate principles which,

28 Ibid., p . 179.29 Official Records of the General Assembly, Twentieth Session,

Sixth Committee, 749th meeting, para. 9.30 Le Droit maritime francais, t o m e X I V , 1962, p . 596.31 Official Records of the General Assembly, Twentieth Session,

Sixth Committee, 845th meeting, paras. 34 and 35.

Law of Treaties 63

as the Commission found in 1964, are particularly dif-ficult to express in any language. But he feels that it willsuffice to draw the point to the attention of the DraftingCommittee.

2. The second point raised by the Government of Israelis the interrelation of the present article with article 24,which concerns the entry into force of treaties provision-ally. Admittedly, provisional entry into force is a specialcase and there may be doctrinal differences as to whatprecisely is the source of the obligations of the partiesin such a case. But the provisions of the treaty by oneprocess or another come into force for the parties; andsubsequently either they cease to be in force withoutthe treaty's ever having come into force definitively, orthe treaty enters into force definitively and its provisionscontinue in force until the treaty itself terminates. Thepresent article speaks in general terms of "the date ofentry into force of the treaty" and of the period "afterthe treaty has ceased to be in force"; and these expressionsappear to be apt to cover both entry into force generallyunder article 23 and entry into force provisionally underarticle 24. The only question would seem to be the datewhich should be considered as the date of entry intoforce in those cases where a treaty first enters into forceprovisionally and later comes into force definitively.Having regard to the nature of the rule stated in para-graph 1 of the present article, it seems evident that therelevant date should be the date of provisional entryinto force. In many cases, treaties which enter into forceprovisionally are never brought into force definitivelyat all, but the possibility of double dates of entry intoforce certainly exists. Accordingly, the Commission maythink it desirable, for the sake of completeness, to coverthe point in the article, and that might convenientlybe done by adding a provision in a new paragraph 3 onthe following lines:

3. In the case of a treaty which has first entered into forceprovisionally under article 24 and afterwards definitively underarticle 23, the date of the entry into force of the treaty for thepurpose of paragraph 1 shall be the date when the treatyentered into force provisionally.

3. The Greek delegation proposes that an explicitprovision should be included in the article to cover thequestion whether the provisions of a treaty apply tofacts, acts or situations which fall partly within the periodwhen it is in force. It interprets paragraph (4) of thecommentary as indicating that the Commission considersthat they do apply to such facts, acts or situations andit asks that this should be made clear in the article itself.To speak of a treaty's applying to facts, acts or situationswhich fall partly within the period when it is in forceseems to the Special Rapporteur to over-simplify thematter and to read rather more into paragraph (4) ofthe commentary than the Commission intended. Themain point made by the Commission in paragraph (4)was that "the non-retroactivity principle cannot beinfringed by applying a treaty to matters that occur orexist when the treaty is in force, even if they first beganat an earlier date". In these cases the treaty does not,strictly speaking, apply to a fact, act or situation falling

partly within and partly outside the period during whichit is in force; it applies only to the fact, act or situationwhich occurs or exists after the treaty is in force. Thismay have the result that prior facts, acts or situations arebrought under consideration for the purpose of the appli-cation of the treaty; but this is only because of theircausal connexion with the subsequent facts, acts orsituations to which alone in law the treaty applies.Accordingly, the article is believed by the Special Rap-porteur to be complete as a statement of the law withoutthe addition of the special provision proposed by theGreek delegation. Moreover, it might not be easy todraft such a provision without giving rise to difficultiessuch as the International Court has experienced in inter-preting clauses limiting its jurisdiction ratione temporis.32

4. In paragraph 1, the Turkish Government suggeststhat the final words "unless the contrary appears from thetreaty" should be replaced by "unless the treaty stipulatesotherwise". Its argument is that exceptions to the non-retroactivity rule should be limited to specific and definitecases. The Commission weighed this point carefully in1964 but felt that the formula proposed by the TurkishGovernment would be too narrow; for quite often thevery nature of a treaty indicates that it is intended to havecertain retroactive effects without specifically so providing(see paragraph (5) of the commentary). This is certainlythe case, and the Special Rapporteur feels that for thisreason the existing text is preferable.

5. In paragraph 2, the Netherlands Governmentquestions the accuracy of the words "any situation whichexists after the treaty has ceased to be in force", proposingthat "which comes into existence" should be substitutedfor "which exists". This proposal does not seem to theSpecial Rapporteur to be acceptable, for the reason thatthe paragraph must cover not only cases where a situationcomes into existence after the treaty terminates but alsocases where a situation which arose during the currencyof the treaty continues to exist after the treaty ceasesto be in force. The words "which exists" were intendedby the Commission to bring both those types of casewithin the rule stated in the paragraph.

6. The final phrase of paragraph 2 "unless the treatyotherwise provides" has attracted suggestions from threeGovernments. The most radical is that of the Greekdelegation, which advocates the deletion of the phrasealtogether. It does not think that there can be anyexception whatever to the rule that acts, facts or situationspost-dating the expiry of a treaty do not fall within thescope of the treaty; for, in its view, if a treaty is applicableto any such act, fact or situation, it must be consideredto be "in force". The possibility of taking this view of theeffect of stipulations which expressly provide for particu-lar obligations to continue after the "termination" ofthe treaty was not overlooked by the Commission.However, that view was rejected because it scarcelyseems admissible to disregard the expressed will of theparties in a case like article XIX of the Convention on

32 e.g. Phosphates in Morocco case, P.C.I.J. (1938) Series A/BNo. 74, p. 24; Electricity Company of Sofia and Bulgaria case,P.C.I J. (1939) Series A/B No. 77, pp. 81-82; and Right of Passagecase, I.C.J. Reports 1960, pp. 33-36.


the Liability of the Operators of Nuclear Ships S3 that thetreaty, as such, shall terminate although a particularprovision is to continue to be applicable. These casesmay be rare, but the Commission felt that it should makeallowance for them in paragraph 2 by inserting at theend "unless the treaty otherwise provides".

7. The Netherlands and United States Governmentsboth propose, though for somewhat different reasons,that the final phrase should be changed from "unlessthe treaty otherwise provides" to "unless the contraryappears from the treaty", in which event the final phraseof paragraph 2 would correspond to that of paragraph 1.The Netherlands Government considers that, just as"the very nature of a treaty" may indicate that the treatyis intended to have certain retroactive effects, so it mayalso indicate that the treaty is intended to have certainlegal consequences even after its termination. The SpecialRapporteur doubts whether the reason advanced formaking the change is a sufficient one. Paragraph 2 is notconcerned with legal consequences which may continueafter a treaty terminates but with the further application ofprovisions even after the treaty itself ceases to be inforce. The question of the legal consequences of thetermination of a treaty is dealt with in article 53, and itseems advisable to keep that question quite separatefrom the question which is the subject of paragraph 2of the present article. As to the present question, it doesnot seem easy to conceive of a case where the very natureof a treaty would indicate an intention that certain ofits provisions should continue to apply after it had ceasedto be in force.The United States Government also appears to have inmind more the legal consequences of a treaty after itstermination than the continued application of certainof its provisions after the treaty itself has ceased to be inforce; for it suggests that account should be taken of"acquired rights" resulting from the operation of a treatywhen it was in force. The preoccupation of the UnitedStates Government on this point may, perhaps, be dueto the fact that article 53, which deals with the legalconsequences of the termination of a treaty, does notin the form in which it was adopted in 1964 specificallymention acquired rights. In re-examining article 53 in thepresent report, however, the Special Rapporteur hasproposed that a new clause should be added to para-graph 1 which would state that the termination of atreaty "shall not affect any rights accrued or any obliga-tions incurred prior to such termination". This provision,it is thought, should be adequate to cover the questionof acquired rights. And paragraph 2 of the presentarticle does not appear, on close examination, to touchthe question of the survival of acquired rights, but torelate only to the further application of the treaty'sprovisions after its termination. Vested rights of a kindwhich will survive the termination of the treaty, althoughthey may have their origin in provisions of the treaty,acquire an independent legal existence of their own.When the treaty terminates, it is the rights which areafterwards enforceable rather than the provisions of thetreaty which gave them birth.

33 See footnote 31.

8. Accordingly, neither the reason given by the Nether-lands Government nor the point raised by the UnitedStates Government appear to call for the words "unlessthe treaty otherwise provides" at the end of paragraph 2to be changed to the form "unless the contrary appearsfrom the treaty", which is used in paragraph 1. On theother hand, as the Special Rapporteur has more than onceemphasized, both these phrases and other similar phraseswill ultimately have to be re-examined carefully by theCommission in the light of its final conclusions regardingthe general rules for the interpretation of treaties set outin articles 69 and 70.

9. In the light of the foregoing observations, the onlychange in the article which seems to require considerationis the possible addition of a new provision on the linesindicated in paragraph 2 above.

Article 57.-—The territorial scope of a treaty


Czechoslovakia. The Czechoslovak Government en-dorses the formulation of the rule set out in this article,considering it more correct and precise than the wordingoften used in the past "all the territory or territories forwhich the parties are internationally responsible". Itholds that the latter formulation was contrary to therequirements for the speedy liquidation of colonialism.In its view, there is no place in modern internationaltreaties for the so-called colonial clause or for any otherform of discrimination aiming at a limitation of thevalidity of a treaty only to certain parts of the territoryof a State. It considers that the phrase "unless the contraryappears from the treaty" found in the article can beapplied only to bilateral or multilateral treaties governingspecific interests of the contracting parties in limitedareas, and never to a regime of a general contractualnature.

Israel. The Government of Israel states that it has noobservations to make on this article.

Netherlands. The Netherlands Government finds therule stated in the article acceptable as a general principle,saying that it assumes that a subject of international lawconstitutes a unity. On the other hand, it underlines thattreaties intended to apply mainly to the territories of theparties need not for that purpose be limited in theiroperation; e.g. with respect to ships and aircraft. It alsomentions treaties which lend themselves to applicationby diplomatic or consular representatives in the territoryof a State which is not a party, or to application on thecontinental shelf, which is not under the Geneva Con-vention "territory" of the coastal State. It suggests thatin the latter case disputes may, for example, arise as towhether customs treaties relating to minerals won on thecontinental shelf, or to operational material placed onthe shelf, are applicable. In its view, therefore, the articleshould take account of the operation of treaties outsidethe territory of the parties and it proposes the followingrevised text:

"The scope of a treaty extends to the entire territoryof each party, and beyond it as far as the jurisdictionof the State extends under international law, unless

Law of Treaties 65

the contrary appears from the treaty or, in accord-ance with paragraph 2 of this article, from the actby which the State expresses its consent to be boundby the treaty."

The paragraph 2 referred to in this proposal would be anew paragraph designed to take account of special factorssuch as the federal structure of a State or the position ofdependent territories. The Netherlands Governmentobserves that protectorates, trust territories and coloniesmight be said not to form part of the "entire territory" ofa State but that this cannot so readily be said of autono-mous parts of a State, such as the Isle of Man, and alsoZanzibar in certain respects, or of the component partsof a Federal State such as Cameroon, Nigeria andSwitzerland. It adds that the autonomous or componentparts of States with different constitutional structures arefrequently seen to be competent to decide for themselveswhether or not they shall be bound by treaties, and citesthe Ukraine, Byelorussia and the three parts of the King-dom of the Netherlands. It considers that, where a treatydoes not itself determine its territorial validity, a Statemay in the first instance wish to become a party for oneof its territories, leaving it to the Government of eachother part to decide whether or not the treaty should beaccepted for that part too. In its view, if the treaty pres-scribes no other procedure, expression can be given tothis territorial differentiation when the treaty is signedand/or ratified; and it would not be appropriate in thelaw of treaties to lay down a rule preventing States fromavailing themselves of the opportunity of differentiatingbetween their territories which existing internationalpractice offers them. To do so would, it contends, curtailthe autonomy of single parts of the State within the wholeand obstruct the conclusion of treaties. It observes that,in practice, it is only federal structures and constitutionsgranting autonomy to the component parts with respectto treaty commitments that need this opportunity; andthat federal governments should be required to makeit clear whether they are becoming parties for the completeunit or for some only of the component States. Althoughthe point might conceivably be covered under the articleson reservations, it feels that a territorial reservation isnot normally a reservation in a material sense, i.e., areservation to a provision in the treaty; and it does notthink that the point should be covered in that way. Forthe above reasons, it proposes that a new paragraphshould be added to the article on the following lines:

"A State consisting of parts which under constitu-tional provisions decide autonomously and individuallywhether they shall accept a treaty shall, provided thatthe contrary does not appear from the treaty, declarein the act by which it expresses its consent to be boundby the treaty to which of its constituent Darts the treatyshall apply. This declaration shall not be regarded asa reservation within the meaning of article 18. In theabsence of such a declaration the State shall be deemedto be bound by the treaty with respect to all the con-stituent parts of the State".

United States. The United States Government con-siders the definition of the scope of application of a treatyin the present article to be serf-evident. On the otherhand, it thinks that an important question is the effect

of the provision on treaties recognizing rights andimposing obligations with respect to such areas as thehigh seas. Although it may be clear from the commentarythat the application of a treaty is not necessarily confinedto the territory of a party, the United States Governmentfeels that the present article standing alone may implythat such is the intention. It proposes that the articleshould be reworded to read as follows:

"1. A treaty applies throughout the entire territoryof each party unless the contrary appears from thetreaty.

"2. A treaty also applies beyond the territory ofeach party whenever such wider application is clearlyintended."Algerian delegation. The Algerian delegation would

prefer the article expressly to limit the application of atreaty to the metropolitan territory of the parties, unlessthe still subject peoples through a valid expression ofopinion decide to accept the treaty and its effects. Other-wise the legitimate representatives of those peoples mayhave no alternative but to denounce treaties in whichthey have taken no part and which are, in its view, oftendetrimental to their interests.34

Finnish delegation. The Finnish delegation observesthat the article does not take into account that the provi-sions of a treaty may be intended to be applicable outsidethe territories of the parties. It proposes that the articleshould be revised so as to cover treaties with extendedterritorial application or, alternatively, that it should bedeleted.35

Greek delegation. The Greek delegation states that thearticle creates a refutable legal presumption and querieswhether the inclusion of such a provision is useful in aformal text. Since every treaty has an object and purposerelated to various elements (territory, population, situa-tion, etc.) it does not see why reference should be madeonly to the territorial element.36

Kenyan delegation. The Kenyan delegation notes withapproval what it refers to as the comprehensive and lucidwording of article 57 and its commentary.37

United Arab Republic delegation. The delegation of theUnited Arab Republic also approves of the article.38


1. The Greek delegation queries the need for the article,saying that it merely creates a refutable legal presumption.It also observes that every treaty has an object and purposerelated jto various elements (territory/'population, situa-tion, etc.) and asks why reference should be made only tothe territorial element. This point of view was consideredby the Commission which, however, concluded thata State's territory plays such an essential role in thescope of the application of treaties that it is desirable to


86 Ibid., 850th meeting, para. 2.38 Ibid., 845th meeting, para. 36.37 Ibid., 850th meeting, para . 38.38 Ibid., 847th meeting, para. 28.


formulate a general rule on the matter. The rule may beliable to be set aside by the will of the parties; but it isnone the less desirable to state what the legal position willbe in the absence of specific provisions in the treaty.

2. The most substantial alteration proposed for thisarticle is the suggestion of the Netherlands Governmentthat a second paragraph should be inserted spelling outa right for a State composed of distinct autonomous partsto declare to which of the constituent parts of the Statethe treaty is to apply. This paragraph would at the sametime provide that a declaration limiting a State's consentto be bound to certain parts only of the State is not tobe regarded as a "reservation" within the meaning ofarticle 18. In formulating this proposal, it should be said,the Netherlands Government makes it clear that it con-siders every subject of international law—and thereforeevery State—to constitute a unity.The matter raised by the Netherlands Government has,in one aspect or another, been much discussed by theCommission in the context of "capacity" to concludetreaties (article 3), and in the context of the territorialapplication of treaties (the present article). It suffices torefer to the proceedings of the Commission at its four-teenth,39 sixteenth40 and seventeenth41 (first part)sessions. While in sympathy with much that is said in thecomments of the Netherlands Government, the SpecialRapporteur does not feel that those comments introduceany new elements into the discussion such as might callfor a reconsideration of the whole question by the Com-mission, Moreover, the rule adopted by the Commissionin 1964 is a flexible one which would not appear to giverise to difficulties in practice of the kind envisaged by theNetherlands Government. Accordingly, the Special Rap-porteur does not think that the case is made out foradding the proposed new paragraph.

3. Three Governments (Netherlands, United States andFinland) suggest that the article should also indicate thatsome treaties may be intended to apply beyond the terri-tories of the parties. The Netherlands instances, interalia, treaties applicable with respect to ships and aircraftor to the continental shelf, while the United States men-tions treaties applicable with respect to the high seas.Outer space and Antarctica are other cases which mightbe mentioned. The Commission was, of course, aware ofthe existence of treaties of this kind applicable with respectto areas outside the territories of the parties. But itregarded the present article as concerned essentially withthe application of treaties to the territories of the parties.The rule it contains is therefore limited to that aspect ofthe territorial scope of a treaty and, as formulated in1964, it hardly seems open to the construction that byimplication it excludes the application of a treaty beyondthe territories of the parties. On the other hand, the titlemay give the impression that the article covers the wholetopic of the territorial scope of a treaty; and, having

39 Yearbook of the International Law Commission, 1962, vol . I ,639th , 640th, 658th a n d 666th meet ings , p p . 57-71 , 193-195 a n d240-243.

40 Ibid., 1964, vo l . I , 731st -733rd, 749th a n d 759th mee t ings ,p p . 46-63, 167-169 a n d 232-235.

41 Ibid., 1965, vol. I, 779th, 780th, 811th and 816th meetings.

regard to the suggestion of the three Governments, theCommission may wish to consider whether to add aclause providing for treaties designed to be applicablewith respect to areas beyond the territories of the parties.

4. The Netherlands Government suggests that the pointshould be covered by a revision which would make thearticle read, excluding that part of the suggested revisionwhich relates to the Netherlands proposal regardingautonomous territories of a State:

"The scope of a treaty extends to the entire territoryof each party, and beyond it as far as the jurisdictionof the State extends under international law, unlessthe contrary appears from the treaty."

The United States Government, on the other hand,suggests that the point should be covered in a new para-graph reading:

"2. A treaty also applies beyond the territory ofeach party whenever such wider application is clearlyintended."

The Special Rapporteur feels that, in order to maintainthe simplicity and clarity of the principal rule regardingthe territories of a State, it would be preferable to usea separate paragraph, if this point is to be added to thearticle. At the same time, it may be desirable to retainfrom the Netherlands draft the limiting element ofcompetence, if misunderstanding is to be avoided. Andthe competence which is relevant would seem to becompetence with respect to the matters dealt with in thetreaty rather than with respect to the "areas" beyond theterritory of the parties. Even on the high seas, a Statemay not generally contract except with respect to ships,aircraft or persons over which it has jurisdiction. In thecase of Antarctica, the position is complicated by thefact that some of the parties have territorial claims whileothers do not, but the Antarctic treaty 42 seems to assumea competence similar to that possessed by States on thehigh seas.

5. If the suggestion of the three Governments thatcases of extraterritorial application should be coveredcommends itself to the Commission, the Special Rappor-teur proposes that a new paragraph should be added onthe following lines:

A treaty may apply also in areas outside the territories ofany of the parties in relation to matters which are within theircompetence with respect to those areas if it appears from thetreaty that such application is intended.

Article 58.—General rule limiting the effects of treatiesto the parties


Cyprus. The Government of Cyprus, commenting onarticles 58 and 59 in conjunction, expresses its agreementwith the Commission's formulation of the two articles onthe basis of the explanations given by the Commission inparagraph (1) of its commentary to article 59. It addsthat the notion of duress and undue influence, and the

42 United Nations Treaty Series, vol. 402, p. 74.

Law of Treaties 67

doctrine of unequal, inequitable and unjust treaties alsoapplies to the case where a State finds itself having nofree choice and is forced to undertake an obligation asa result of an agreement to which it is not a party. In itsview, this is even more true when the third party has notyet reached the stage of statehood but is still undercolonial domination.

Czechoslovakia. The Czechoslovak Government en-dorses the Commission's formulation of the article asrespecting the sovereign equality of States which it con-siders the key principle of contemporary internationallaw. In its view, any transfer of obligations or of rightsto a third State necessarily requires its consent; and itis impossible either to oblige or to authorize a non-party,without its consent, by a treaty inter alios acta.

Netherlands. The Netherlands Government observesthat this rule does not apply to all treaties and instancestreaties defining a frontier or transferring a piece ofterritory. In these cases the effect of the treaty is to alterthe area over which the consuls of third States mayexercise jurisdiction; and to make agreements formerlyapplicable in one area cease to apply there and to renderother agreements applicable in that area. Another examplewhich it gives is a demarcation of the continental shelfunder article 6 of the Geneva Convention on the Conti-nental Shelf,4S which may have similar effects with respectto customs agreements affecting mineral resources. Ingeneral, treaties governing the territorial demarcation ofsovereignty, in the view of the Netherlands Government,undoubtedly involve rights and obligations for thirdStates and constitute a separate category. It suggests theaddition of a clause to the present article making anexception in the case of this special category.

United States. The United States Government notesthat the general principle stated in this article is thefundamental rule governing the effect of a treaty uponStates not parties. It also comments that the differenceof opinion in the Commission regarding the questionwhether a treaty may of its own force confer rights uponthird parties shows the need for a precise provision onthe matter.

Algerian delegation. The Algerian delegation wouldlike the article to contain a provision declaring absolutelynull and void any obligation imposed by a treaty upon athird State without the latter's assent.u

Greek delegation. The Greek delegation considers thatthe article states a very simple rule too forcefully.45

Mexican delegation. The Mexican delegation appearsin general to endorse the provisions in articles 58 et seq.regarding the effects of treaties on third States.46

United Arab Republic delegation. The delegation of theUnited Arab Republic approves of the manner in which

48 United Nations Conference on the Law of the Sea, OfficialRecords, vol. II, p. 142


46 Ibid., 845th meeting, para. 37.46 Ibid., 841st meeting, para. 7.

the problem of the effect of treaties in relation to theparties and third States has been solved in articles 58-62.47


1. This and the next four articles form a group coveringthe topic of the effect of treaties in creating obligationsor rights for third States. Accordingly, in consideringeach of these articles, it is necessary to keep in mind thecontents of the five articles as a whole.

2. The Special Rapporteur suggests that, having regardto the comments of the Netherlands Government on thearticle, the title is perhaps a little misleading and mayrequire modification. That Government comments thatthe general rule formulated in the article does not holdgood for all treaties, since treaties defining a frontier ortransferring a piece of territory or delimiting a continentalshelf may have effects for non-parties by changing theareas in which their treaty obligations and rights operate.This comment, if true enough as a statement of fact,is believed to be misconceived in relation to the rule laiddown in the article. The rule does not concern the generalquestion of the effects of treaties on third States; itconcerns only the effect of a treaty in creating obligationsand rights for third States under the treaty. The casesreferred to by the Netherlands Government are not casesin which an obligation or right is created for a thirdState by the treaty, or by a provision in the treaty after-wards assented to by the third State; the third State'sobligations and rights exist and were created whollydehors the treaty and it is only their application whichconsequentially and as a matter of fact is affected by thetreaty. The title to the article, on the other hand, in itspresent form does speak in general terms of a rule limitingthe effects of treaties to the parties; and this may tendto invite misconceptions such as appears to have occurredin the comment of the Netherlands Government. Accord-ingly, the Special Rapporteur suggests that the title shouldbe modified to read as follows: "General rule limitingto the parties the obligations and rights arising under atreaty."'

3. Two Governments (Cyprus and Algeria) emphasizethe relevance in the context of the present article and ofarticle 59 of the principle in article 36 which invalidatesany treaty the conclusion of which was procured by thethreat or use of force in violation of the principles of theCharter. Their contention that a third State's agreementto be bound by a provision of a treaty to which it is nota party would be void if procured by the threat or use offorce is clearly correct in principle. It again raises thequestion regarding the adequacy of the formulation ofarticle 36 which was discussed when this article wasre-examined at the second part of the seventeenth session.The Government of Israel, the Commission will recall,suggested that article 36 should be reworded so as tomake it cover explicitly the procurement by the threator use of force of a State's consent to be bound by analready existing treaty—in other words, of a subsequentact of consent to a treaty already in force. The SpecialRapporteur proposed that the article should be slightly

47 Ibid., 847th meeting, para. 28.


expanded so as to make it read "any treaty and any actexpressing the consent of a State to be bound by a treatywhich is procured, etc.".48 The Commission, however,preferred to formulate article 36 in the tersest and simplestterms; and it felt that the words "any treaty the conclusionof which has been procured" were sufficiently broad tocover subsequent acts of consent—such as accession—toan already existing treaty. In the present context thequestion as to the adequacy of the drafting of article 36is perhaps even more pointed, because what is involvedis not the acceptance of a "treaty" but an agreement tobe bound by a provision without becoming a party tothe treaty. On the other hand, under article 59 an obliga-tion will arise from a provision of a treaty for a non-party, only if the non-party State has expressly "agreedto be bound" by the obligation proposed in the provision.Consequently, it may be said that the words "any treatythe conclusion of which has been procured, etc." coverthe non-party State's agreement to be bound by the parti-cular provision. The Special Rapporteur cannot avoid thefeeling that, from a purely technical point of view,article 36 would be more complete if it included a secondparagraph stating that the rule contained in the articleapplies equally to any act expressing the consent of aState to be bound by an existing treaty or by a provisionof a treaty to which it is not a party. But he recognizesthat the Commission has expressed itself definitely, onpsychological grounds, in favour of the single short for-mulation of the rule which it adopted for article 36 in1963 and which it reaffirmed during its recent session atMonaco in January.49

Article 59.—Treaties providing for obligations for thirdStates


Cyprus. In commenting on articles 58 and 59 together,the Government of Cyprus emphasizes its opinion thatthe notion of duress and undue influence, and the doctrineof unequal, inequitable and unjust treaties applies alsoto the case where a State finds itself forced to undertakean obligation as a result of an agreement to which it isnot a party (see under article 58).

Hungary. The Hungarian Government notes withapproval the statement in paragraph (3) of the Commis-sion's commentary on the present article that a treatyprovision imposed on an aggressor State does not fallunder the rule of invalidity set forth in article 36; andit draws from that statement the conclusion that theconsent of an aggressor is not needed to establish anobligation for it under a treaty to which it is not a party.It considers this exception to be highly important andsuggests that it should be incorporated in the text ofthe article.

Israel. The Government of Israel considers that theFrench text—especially in the conditional clause—expres-ses the substance of the rule somewhat better than theEnglish. In general, it suggests that further attention

should be given to the language used for expressing therule; and in the English text it would prefer the last fivewords to be replaced by "agreed to be bound by thatobligation". It further suggests, without giving reasons,that the order in which this and the following article areplaced should be reversed.

USSR. The Soviet Government emphasizes that thereare cases where obligations under a treaty may be extendedto a third State without its consent. It instances caseswhere a treaty, in conformity with the principle of Stateresponsibility, imposes obligations on an aggressor Stateguilty of launching and conducting a war of aggression.

United States. The United States Government questionswhether the concept embodied in paragraph (3) of thecommentary—that treaty provisions imposed on anaggressor State fall outside the principle contained inthe present article—is covered by the text of the article.It feels that, without the commentary, the text may bemisleading on this point. It also feels that the articleleaves entirely open the question as to the time at whichassent by the third party must be indicated.

Cameroonian delegation. The Cameroonian delegationregrets that no precise definition of "contracting parties"has yet been arrived at by the Commission, and considersit necessary to re-examine completely the application andeffects of treaties in regard to third States.80

Greek delegation. The Greek delegation considers thatarticles 59 and 60 should have been combined in a singlearticle or, at the very least, worded in a more similarfashion.51

Nigerian delegation. In the view of the Nigerian dele-gation, articles 59 and 60, in their present wording, mightmistakenly be invoked in order to impose upon a thirdState an obligation arising out of treaties not general incharacter and by which it did not wish to be bound.62

Ukrainian delegation. The Ukrainian delegation obser-ves that international law recognizes exceptions to theprinciple of free consent where treaties impose obligationson aggressor States guilty of unleashing aggressive wars.It suggests the Commission should further clarify therule in article 59 on this point.53


1. The comment of the Cyprus Government regardingthe relevance of the notion of duress and undue influencehas already been taken into account in paragraph 3 ofthe Special Rapporteur's observations on the previousarticle.

2. The article is at present formulated in permissiveterms: "an obligation may arise". This form is perhapsreminiscent of a code rather than of a convention, andthe Special Rapporteur suggests that the more categoricalform "arises" would be preferable and more exact. Whena State "agrees to be bound" by an obligation provided

48 See pp. 20 above.49 Yearbook of the International Law Commission, 1966, vo l . I ,

part I, 827th meeting, para. 58.

60 Official Records of the General Assembly, Twentieth Session,Sixth Committee, 845th meeting, pa ra . 4.

61 Ibid., 845th meeting, pa ra . 38.62 Ibid., 847th meeting, pa ra . 16.53 Ibid., 843rd meeting, pa ra . 44.

Law of Treaties 69

for in a treaty to which it is not a party, the obligationunquestionably "arises", and it seems better to say sowithout equivocation.

3. The Government of Israel's suggestion that theFrench text may express the substance of the rule betterthan the English is considered by the Special Rapporteurto be justified in so far as concerns the phrase "if theparties intend the provision to be the means of establish-ing, etc.". The French use of the subjunctive "soit immoyen d'aboutir a la creation" may better express thenotion that the parties cannot themselves establish theobligation but only propose it. The final words of theFrench text "consent expressement a etre lie par cetteobligation" are also more exact than the English "hasexpressly agreed to be so bound". On the other hand theFrench phrase "Si les parties entendent qiCune telle dispo-sition soit le moyen, etc." is not as exact as the Englishtext "intend the provision, etc.". These are matters forconsideration in the first instance by the Drafting Com-mittee, and similar questions of terminology arise alsoin the Spanish text. However, in the light of a comparisonof the three texts, the Special Rapporteur thinks it rightto suggest that the English text should be modified soas to read as follows:

An obligation arises for a State from a provision of a treatyto which it is not a party if the parties intend that the provisionmay be a means of establishing the obligation and the Statein question expressly agrees to be bound by that obligation.

4. A point of substance is raised by four Governments(Hungary, USSR, United States and Ukraine), whichconsider that the reservation in paragraph (3) of theCommission's commentary regarding the imposition ofan obligation upon an aggressor is not enough and wouldlike to see the point incorporated in the text. In article 36,the point is covered by implication in the text of thearticle, since it is only "coercion by the threat or use offorce in violation of the principles of the Charter", whichis expressed to render a treaty void. Here, however, thereare no such saving words and, when articles 58 and 59are read together, they may be open to the interpretationthat the express agreement of the third State is alwaysnecessary before it can be bound by a provision in atreaty to which it is not a party. On the other hand, theexception in the case of an aggressor stems not from thelaw of treaties but from the law of State responsibility;and the policy of the Commission is to avoid as far aspossible prejudging matters of State responsibility, whichwill fall to be decided when it takes up that topic in 1967.Accordingly, if an express reservation regarding the caseof an aggressor is thought to be desirable, the SpecialRapporteur suggests that the appropriate way of dealingwith the point may be to add the following proviso tothe present article as paragraph 2:

Nothing in the present article or in article 58 precludes aprovision in a treaty from being binding on an aggressor State,not a party to the treaty, without its consent if such provisionis imposed on it in accordance with the law of State responsibilityand with the principles of the Charter of the United Nations.

Article 60.—Treaties providing for rights for third States


Netherlands. The Netherlands Government considersthat the faculty of "implied assent" by the third Stateadmitted in paragraph \{b), combined with the banimposed by article 61 on revoking or amending the pro-vision conferring the right without the third State's con-sent, may place an unduly heavy burden on the partiesto the treaty. This combination, it suggests, may beparticularly unfortunate in the case of a treaty thataccords rights to a large group of States or to the com-munity of States in general, like treaties regarding freedomof shipping in an international waterway. To give a voicein matters concerning the regulations operative for thosewaterways to a State which has not reacted in any formalfashion to the conclusion of the treaty and whose nationalshave only occasionally availed themselves of the rightsaccorded would, in its view, be going further than iscompatible with reasonable practice. Another objection,it feels, is that the parties to the treaty might be unable tofind out which States have given their "implied assent"to the provision conferring the right. In consequence,the Netherlands Government suggests that the words "orimpliedly" should be deleted from paragraph \{b).

Turkey. The Turkish Government, while recognizingthe general principle contained in the article regardingtreaties providing rights for third States, considers thatthe conditions prescribed for the latter's enjoyment ofsuch rights are unsatisfactory. It interprets paragraph 2as restricting the power of the parties to the treaty toconclude a new treaty to the extent that the third Statehas acquired vested rights. In its view, this not onlyconstitutes a restriction of the powers of sovereign andindependent States but also "causes an imbalance andinjustice between their responsibilities". The TurkishGovernment further expresses the view that the partiesmay amend the rights recognized to third States subjectto certain conditions by concluding a new treaty similarto the original one but not based on its provisions. Para-graph 2, as at present drafted, it considers to run contraryto the changing requirements of international life andit would like to see the words "or established in conformitywith the treaty" replaced by "or established by a newtreaty".

In addition, in its comments on article 61 the TurkishGovernment intimates that that article would be accept-able to it only if the words "or impliedly" are deletedfrom paragraph 1 of the present article (see article 61).

United States. The United States Government feels thatparagraph 1, as at present worded, might be understoodas preventing two or more States from dedicating bya treaty a right to all States in general without thatdedication's being subject to the condition that each Statewishing to exercise the right should have first assentedthereto. It proposes that the paragraph should be revisedon the following lines:

"A right may arise for a State from a provision of atreaty to which it is not a party if the parties intendto accord that right either (a) to the State in questionor to a group of States to which it belongs and the

70 Yearbook of the International Law Commission, 1966, Vol. H

State expressly or impliedly assents thereto or (b) toStates generally."

Paragraph 2 the United States Government considers toexpress a self-evident rule the inclusion of which isnevertheless highly desirable as a guide in the formulationof treaties and their application. At the same time, itfeels that further consideration of the over-all effect ofthe article is required.

Argentine delegation. The Argentine delegation consi-ders that two or more States can effectively and directlycreate a right in favour of another State by treaty if theyso intended. Accordingly, it does not apqrove of the for-mulation of this article or of article 6 1 . M

Greek delegation. The Greek delegation considersthat articles 59 and 60 should be included in article 58as a single but separate paragraph. It also considers thatparagraph 2 of the present article adds nothing to theprinciples stated in paragraph 1. Furthermore, in itsview, the inclusion of the provisions set out in the presentarticle are only necessary if it is assumed that treatiescreate rights for third parties even without their consent,whereas the article has been drafted on the assumptionthat their consent is required. It appears to hold that inessence the third State becomes a party to the treaty. Itobserves that lawyers might consider that there is a collat-eral agreement between the parties and the third State;but that, collateral or not, that agreement is a treaty. 56

Observations and proposals of the Special Rapporteur1. Two Governments (Netherlands and Turkish) askthat the words "or impliedly" should be deleted fromparagraph l(b). They feel that a third State which merelygives an implied assent to the provision, e.g. by exercisingthe right, ought not to be recognized as having a vestedright to enforce the provision against the parties to thetreaty. Both Governments consider that this would puttoo large a burden on the parties to the treaty. TheNetherlands Government sees particular objection torecognizing such a vested right in cases where a treatyaccords rights to a large group of States or to the commun-ity of States in general, e.g., a treaty providing for free-dom of shipping through an international waterway.Interpreting the article as giving "a voice in mattersconcerning the regulations operative for those waterwaysto a State which has not reacted in any formal fashion tothe conclusion of the treaty and whose nationals have onlyoccasionally availed themselves of the rights", it expressesthe opinion that this goes beyond what is compatible withreasonable practice. It also observes that the parties mayhave difficulty in tracing which States have given their"implied assent".

2. The formulation of the rule stated in paragraph 1of the present article, as explained in paragraphs (5) and(6) of the Commission's commentary, gave rise to con-siderable discussion in 1964.56 The Commission wasevenly divided on the question whether "assent" is neces-sary in any form whatever in order for the provision to

" Ibid., 846th meeting, para. 9.56 Ibid., 845th meeting, para. 38.68 Yearbook of the International Law Commission, 1964, vol. I,

734th-738th meetings.

vest the right definitively in the third State. Approximatelyhalf the members were of the opinion that, when theparties to a treaty intend that a provision shall createan actual right in favour of a third State, there is nothingin international law to prevent that intention havingeffect; and that the right arises at once in virtue of theprovision and exists in law unless and until disclaimedby the intended beneficiary State. According to thesemembers, therefore, neither express nor implied assentis needed to establish the right; and this view is reflectedalso in the comments of the Argentine delegation inthe Sixth Committee. The other members of the Com-mission, on the other hand, were of the opinion that someform of acceptance is in principle necessary, even if itmay take the tacit form of a simple exercise of the rightprovided for in the treaty. The Commission, thinkingthat the two views would be likely to produce differentresults only in very exceptional circumstances, decidedto frame the rule in a neutral form which would notprejudge its doctrinal basis and which would respectas far as possible the scruples felt by each group. Thedrafting of such a "neutral" rule was found to be a matterof considerable difficulty and paragraph \{b), as adoptedin 1964, is open to the interpretation put upon it by someGovernments that some form of "assent" is necessaryin order to vest the right definitively in the third State.The Commission intended to leave open the questionwhether the right is created by the treaty or by thebeneficiary State's act of acceptance, though the formula-tion which it adopted may not entirely succeed in doing so.Be that as it may, the inclusion of the words "or impliedly"in paragraph l{b) was regarded by a large group of mem-bers as indispensable for their endorsement of the article.In short, those words were considered indispensable in1964 if there was to be sufficient common ground to uniteany substantial majority in the Commission in supportof the article.

3. The Commission will, no doubt, give close attentionto the comments of the Netherlands and Turkish Govern-ments in re-examining the formulation of paragraph 1at the forthcoming session. Meanwhile, having regardto the course of the discussion in the Commission in1964, the Special Rapporteur feels that only in the eventof a clear expression of opinion on the part of a numberof Governments would it be advisable to propose thedeletion of the words "or impliedly", the omission ofwhich would destroy the basis on which many membersaccepted the article in 1964. But the majority of Govern-ments do not appear to have found any difficulty in thesewords. Indeed, the United States Government suggestsan amendment which would dispense even with impliedassent in the case of a dedication of a right to all Statesin general—the very class of case specially referred to bythe Netherlands Government. Moreover, the principalpreoccupation of the Netherlands and Turkish Govern-ments appears to relate to the effect of the present articleon the freedom of action of the parties subsequentlyto modify or terminate the treaty; and this is dealt within article 61, where a number of Governments havecalled for a diminution of the position of the third Statein this regard.

Law of Treaties 71

4. The United States in effect proposes that the rule,as at present formulated in paragraph 1, should applyin all cases where the intention is to accord a right toa particular State or to any State in a particular group;but that no assent by a State in any shape or form shouldbe necessary to vest the right in it when the intention ofthe parties was to dedicate a right to "States generally".The Special Rapporteur belongs to the group of memberswho consider that, when the intention of the parties tocreate an actual right as distinct from a mere benefit isclearly expressed, the right already exists before any actof assent takes place. Accordingly, he would in any eventfind no difficulty in adopting the United States proposal.As Special Rapporteur, however, he approaches theproposal from the basis of the conclusion reached by theCommission in 1964. Even on that basis he feels that theUnited States proposal has much to recommend it, sincethe mere fact that the parties have expressed an intentionto confer a right on "States generally" would seem tojustify the conclusion that they fully intended to dispensewith any expression of assent by individual States. More-over, the special rule proposed by the United States forthese cases appears better designed to serve the practicalneeds of the international community than leaving themto be governed by the general rule proposed by theCommission in paragraph 1. Having regard to the courseof the discussion in 1964, the Special Rapporteur makesno formal proposal of his own on this point, but invitesthe attention of the Commission to the United Statesproposal to revise paragraph 1 so as to make it read asfollows:

"A right may arise for a State from a provision of atreaty to which it is not a party if the parties intendto accord that right either (a) to the State in questionor to a group of States to which it belongs and theState expressly or impliedly assents thereto or (b) toStates generally."

5. The Turkish Government objects to paragraph 2,as an undue restriction on the power of the parties toamend the rights recognized to third States. Its objectionappears, however, to be based on an interpretation of theparagraph which is certainly not the one intended by theCommission, while the United States Governmentexpresses the view that the paragraph states a "self-evidentrule the inclusion of which is nevertheless highly desirable".The question raised by the Turkish Government of restric-tions on the power of the parties to modify the rights of thethird State is the central issue of the following article, andit is that article to which its observations on this questionappear primarily to have relevance. The present article,as its text and paragraph 7 make clear, concerns theobligation of the third State to comply with the conditionsprescribed in the treaty or established in conformity withthe treaty. The words "or established in conformity withthe treaty" were intended to cover conditions for theexercise of the right laid down in the treaty or in a relatedinstrument concluded between the parties or establishedunilaterally by a party in whose territory the exercise of theright is to take place. The only question, it is thought,is whether the words "established in conformity withthe treaty" might be held by implication to mean that thethird State would be under no obligation to comply with

conditions laid down in a subsequent treaty validlyconcluded between the parties to the treaty which createdthe right. Such an interpretation of paragraph 2 is believedto be inadmissible since, if under article 61 the subsequenttreaty constitutes a valid modification of the right arisingfrom the first treaty, the "treaty" for the purposes ofparagraph 2 of the present article will automaticallybecome the original treaty, as modified by the subsequenttreaty.

Article 61.—Revocation or amendment of provisionsregarding obligations or rights of third States


Hungary. The Hungarian Government notes that underarticle 59 express consent is needed to establish an obliga-tion for a third State, while under article 60 express orimplied consent suffices to establish a right; and it objectsthat the present article does not reflect this distinction.It points out that, according to the rules laid down inarticles 59 and 60, express consent would logically beneeded for the revocation or unfavourable amendmentof a provision establishing a right, but that implied con-sent would be sufficient for the revocation or favourableamendment of a provision establishing a right. It suggeststhat article 61 should be brought into line with articles 59and 60.

Israel. The Government of Israel considers that theprovisions of this article should be more closely co-ordi-nated with the provisions of part II relating to the termina-tion of treaties and those of part III relating to the modi-fication of treaties. In its opinion, article 61 in its presentform may be open to the interpretation that it gives tothe third State more extensive rights—possibly evenamounting to a veto—than the parties themselves wouldhave as between themselves under the applicable provi-sions of the draft articles. It suggests that the positionof the parties should be safeguarded by some referenceto articles 38-47 and 49-51 as regards revocation and thatthe principles of articles 65-67 as regards modificationshould be made applicable as between the third Stateand the parties.

Netherlands. After mentioning the link between itscomments on article 60 and the present article, theNetherlands Government states that it has consideredwhether its objective—the denial of rights to third Stateswhich have scarcely, if at all, reacted to the offer of aright—could be achieved by amending not article 60but the present article. The amendment it has in mindis to add a proviso to the article on the following lines:

"and provided the State has actually exercised theright [and complied with the obligation]".

However, although this solution might theoretically bemore equitable, it feels that the amendment which itproposes for article 60 is preferable as being clearer;for, in its view, it would in practice be very difficult toproduce evidence of "traditional rights".

The Netherlands Government offers three furthercomments on the text of the article. First, it does notappreciate why the complete or partial withdrawal ofan obligation imposed on a third State should require


its assent. While recognizing that assent might be requiredif a modification of the original obligation gives rise to anew or more onerous obligation, it thinks that article 59suffices to cover such a case. Secondly, in its view, themodification of a right granted to a third State need notbe mentioned separately in the article; for, if the modifi-cation amounts to a partial withdrawal of the right, itis governed by the rule regarding withdrawal and, if itinvolves the grant of a new or more comprehensive right,article 60 is applicable. Finally, it considers that the rulelaid down in the article should protect the third Stateagainst withdrawal (or modification) of the right accorded,rather than of the treaty provision from which that rightis derived. In the light of the foregoing observations,it would prefer to see the article read:

"When under article 60 a right has arisen for a Statefrom a provision of a treaty to which it is not a party,the right may be revoked only with the consent of thatState, unless it appears from the treaty that the rightwas intended to be revocable."

Pakistan. The Government of Pakistan considers thatthe article should be revised so as to require not the con-sent of the third State but a mere notification to it.

Turkey. The Turkish Government, as the Special Rap-porteur understands its position, would find the presentarticle unacceptable so long as implied consent is recog-nized under article 60 as sufficient to establish a right infavour of the third State. In its view, it would be indefen-sible that a State which has not expressly accepted theright should be in a position to obstruct an agreementbetween the parties to revoke or amend the treaty.Accordingly it is not prepared to accept article 61 unlessthe words "or impliedly" are deleted from article 60.

United Kingdom. The United Kingdom Governmentconsiders that the rule proposed might over-safeguard theposition of the third State to the detriment of the parties.It suggests that the parties should be permitted to amenda provision affecting a third State unless it appears fromthe treaty or the surrounding circumstances that the pro-vision was intended not to be revocable or unless thethird State is entitled to invoke the rule of "estoppel" orpreclusion against the amendment.

United States. The United States Government considersthat the rule as at present formulated may give rise tomore problems than it would resolve. In its view the rulemay seriously hamper efforts of the original parties torevise or even terminate a treaty in its entirety; andchanges in circumstances may result in the principal bene-fits flowing almost completely to the third State. It thinksthat parties should not be impeded in their desire toreach a new agreement between themselves, especially ifthe third State has undertaken few, if any, reciprocalobligations under the treaty. Again, it asks what wouldbe the situation in the event of a party's having givennotice of termination in accordance with a provision inthe treaty, and whether the existence of that provisionwould be evidence of the revocability of the provisionregarding an obligation or right for a State not a party.In general, it suggests that considerably more study ofthe rule in this article is necessary.

Argentine delegation. The Argentine delegation con-siders that two or more States can effectively and directlycreate a right in favour of another State by treaty, if theyso intended. It does not approve of article 61 since, inits view, the right of the third State would be only toolikely to be revoked afterwards.57

Greek delegation. The Greek delegation, which con-siders that the right accruing to the third State underarticle 60 arises from a collateral treaty between theparties and that State, is of the opinion that the presentarticle is superfluous.58

Observations and proposals of the Special Rapporteur1. The Argentine delegation, starting from the positionthat a treaty may of its own force create an actual rightin the third State, does not think that the article goes farenough in protecting that right. The Greek delegation,starting from the opposite position that the right arisesfrom what is legally a collateral agreement between thethird State and the parties to the treaty, maintains thatthe article is superfluous; and by this it presumablymeans that the third State's consent would always benecessary for the revocation or modification of thatagreement. The Netherlands Government also suggeststhat the article is largely superfluous because (a) it consi-ders that no consent is needed for the complete or partialwithdrawal of an obligation; and (b) cases of modificationeither of an obligation or of a right are already coveredby articles 59 and 60. In addition, the majority of theGovernments which have commented on the article,including the Netherlands Government, think that itgoes too far in the protection which it gives to the rightof the third State.2. The Netherlands Government is, of course, correct inpointing out that in principle the situations covered inthe present article are situations to which articles 59and 60 themselves could be said to be at least partlyapplicable. Indeed, it would be possible to go furtherand say that, in principle, they should be completelyapplicable to those situations. When a third State has an"obligation" or a "right" arising from a treaty to whichit is not a party, any modification increasing an obligationor diminishing a right could be said necessarily to fallunder article 59, while any modification decreasing anobligation or increasing a right could be said necessarilyto fall under article 60. But the obligations and rightsvesting in third States under articles 59 and 60 arise inspecial circumstances and have a particular basis. Thequestion posed in the present article is whether, byreason of their particular basis, their termination andmodification should be governed by particular rules. Ifa single rule is to be formulated to cover both obligationsand rights, then it is believed that it must be one alongthe lines of the text adopted in 1964 or one framed in thesame way but, as suggested by the United Kingdom,reversing the presumption so as to make consent unneces-sary unless it appears that the provision was intended tobe irrevocable.


58 Ibid., 845th meeting, para. 38.

Law of Treaties 73

3. The alternative is to deal separately with the ter-mination and modification, on the one hand, of obliga-tions and, on the other, of rights; and this might make iteasier to take account of the objection that the article atpresent over-protects the position of the third State. TheSpecial Rapporteur himself feels that there is force inthe view that, however necessary it may be to insist onthe need for consent to any increase in an obligation orany change in the conditions for its performance, it issomewhat illogical to require it for the termination orreduction of an obligation. In those cases the positionreally is that the parties are renouncing in whole or inpart their right to call upon the third State for the per-formance of its obligation; and it hardly seems consistentwith principle to make their action subject to the consentof the State in whose favour the renunciation is made.Simple notice to the third State would appear to be fullysufficient. In the case of a right, the main question iswhether the rule should be that the consent of the thirdState is presumed to be necessary unless it appears thatthe intention was to confer an irrevocable right, or viceversa, as a number of Governments would appear toprefer.

4. The Special Rapporteur has doubts as to the Govern-ment of Israel's suggestions for safeguarding the positionof the parties by a reference to the articles on termination,and for applying the principles of articles 65-67 on modi-fication as between the parties and the third State. Therelationship between the parties, on the one hand, andthe third State, on the other, is a special one and thereare two questions of termination or modification involved:(a) termination or modification of the treaty provision asbetween the parties themselves and (b) the termination ormodification of the obligation or right as between theparties and the third State. Clearly, the ordinary rulesregarding termination and modification of treaties applyas between the parties with respect to the termination ormodification of the treaty provision giving rise to thethird State's obligation or right. But it is not so clear thatthe termination or modification of the obligation or rightas between them and the third State is a simple questionof the termination or modification of treaties. The Nether-lands Government has, indeed, very pertinently raisedthe question whether it is correct in the present articleto speak of the termination and amendment of the"provision" giving rise to the obligation or right, ratherthan of the actual "obligation" or "right" itself. Asbetween the parties, it is the termination or amendmentof the "provision" which is the focal point; as betweenthe parties and the third State, the focal point, althoughthe "provision" is again involved, is the obligation orright arising from it rather than the provision itself. TheSpecial Rapporteur feels that the question of terminationor amendment of the "provision" as such should be leftto be governed by the general law laid down in the articlesconcerning termination and modification of treaties; andthat the present article should confine itself to the relation-ship between the parties and the third State. In otherwords, he feels that it should deal with the obligation orright rather than the provision.

5. The other suggestion of the Netherlands Governmentfor the addition of a proviso excluding, in the case of a

right, the need for the third State's consent unless it hasactually exercised the right is already covered by whathas been said in paragraph 2 of the Special Rapporteur'sobservations on article 60. The Netherlands Governmentevidently itself feels that the point properly belongs toarticle 60; but for the reasons given in the Special Rap-porteur's observations on that article, the point does notseem to the Special Rapporteur to be consistent with theposition taken up by the Commission in regard to treatiesgiving rise to a right in favour of a third State.

6. In general, the Special Rapporteur shares the viewof the United States Government that "more study ofthe rule in this article is necessary". Accordingly, in orderto provide the Commission with a basis for discussion,he has drafted in the next paragraph a text which (a)separates cases of "obligation" from those of "right" and(b) reverses the presumption as to revocability in cases of"right". The reversal of the presumption in cases of rightunder article 60 does not, it is believed, in any wayaffect the positions of principle taken up by differentmembers in regard to the source of the right; for it onlyconcerns the intention of the parties with respect to therevocable or irrevocable nature of the right which theyare "conferring on", or alternatively "offering to", thethird State, whichever be the theory held.

7. The text prepared by the Special Rapporteur fordiscussion reads:

1. When an obligation has arisen for a State not a party toa treaty under article 59, the parties afterwards may:

(a) terminate the obligation in whole or in part on givingnotice to such State;

(£>) modify the obligation in any other respect only with theconsent of such State.2. When a right has arisen for a State not a party to a treaty

under article 60, the parties afterwards may.(a) terminate the right in whole or in part, after giving

X months' notice to such State, unless it appears that the rightwas intended to be irrevocable except with its consent;

(b) modify the right in any other respect only under the ruleslaid down in articles 59 and 60.

Article 62.—Rules in a treaty becoming generally bindingthrough international custom


Finland. In the opinion of the Finnish Governmentthis article concerns the importance of custom as a sourceof international law and does not really belong to thelaw of treaties. In addition, as international custom andthe law of treaties are equivalent sources of law, it consi-ders the principle expressed in article 62 to be self-evident.

Israel. The Government of Israel suggests that theopening words should read: "Nothing in these articlesprecludes... etc.".

United States. The United States Government thinksthe inclusion of the provision in the present article to bedesirable and considers that the recognition of the exten-sion of the rules contained in a treaty to non-partiesthrough international custom does not in any way conflictwith the concepts embodied in articles 58 to 60.


Greek delegation. The Greek delegation considers thatthe article, since it deals with the free creation of new rulesof international law, may even be dangerous as well asunnecessary. It asks what would be the position if anumber of States were to conclude a treaty which, beingfreely accepted by other States, became customary lawfor the latter and the parties terminated the treaty. Wouldthe parties no longer be bound whereas the other Statescontinued to be? The article, it complains, provides nosolution to this problem.59

Netherlands delegation. The Netherlands delegationnotes that, whereas the title refers to rules "generallybinding through international custom", the text speakssimply of "customary rules", which seem to includeregional custom. It then suggests that there may be aninconsistency between the present article and article 59:rules in a regional treaty would, it suggests, becometacitly binding on all States of the region under the presentarticle, whereas under article 59 obligations arising undera treaty intended to apply throughout a region couldonly become binding on non-parties by express agree-ment. Then, the decision to apply one rule or the otherwould depend on the conception held of customary law.In consequence, it asks whether the present article, whichit considers to evoke certain doctrinaire problems, wouldnot fit better in a code than in the convention on the lawof treaties now envisaged.60

Syrian delegation. The Syrian delegation, referring tothe Commission's statement in paragraph (2) of its com-mentary regarding the recognition by non-parties of therules set out in a treaty as binding customary law, suggeststhat the element of recognition should be expresslymentioned in the article in order to avoid any ambiguity.61


1. The Finnish Government considers that, as customand treaties are "equivalent sources" of law, the principleexpressed in the present article is self-evident; and thatthe article does not really belong to the law of treaties.The reason urged by this Government for omitting thearticle does not seem to the Special Rapporteur to carryconviction. The mere fact that custom and treaties maybe independent and "equivalent" sources of law does notprevent their spheres of operation from intersecting andimpinging on each other. Not infrequently the very objectof a treaty is to establish a regime derogating in somerespects from the general law. The purpose of the presentarticle is to make it clear that the apparently general andall-embracing provisions of articles 58-60 do not precludetreaty provisions from having other effects vis-a-vis thirdStates by becoming a generator of international custom.

2. The objection to the article raised by the Greekdelegation does not appear to the Special Rapporteurto be any more convincing. The article does not establishany new rule. It merely states, for the purpose of avoidingany misconceptions as to the effects of articles 58-60, whatis certainly the law: namely that, independently of the

69 Ibid., 845th meet ing , p a r a . 38.60 Ibid., 847th meeting, para. 11.61 Ibid., 845th meeting, para. 8.

rules of the law of treaties regarding the effects of treatieson third States, principles contained in treaties maybecome binding on non-parties through being recognizedas customary rules. Whatever may be the problems whichmay arise if the parties to a treaty, which has been thenucleus for the generation of customary law, should seekto terminate it, they will be inherent in the complex originsof the customary rule and their solution will depend onthe particular circumstances in which the treaty is ter-minated, including the intentions of the parties in ter-minating it and the attitude of all the States concernedregarding the continuance of the custom. The presentarticle does nothing to create these problems and nothingto prejudge their solution.

3. Similar considerations apply to the suggestion of theNetherlands delegation that there may be an inconsistencybetween the present article and article 59. If the presentarticle is read according to its terms, there is not andcannot be any such inconsistency; for the article merelystates that nothing in article 59 precludes rules set forthin a treaty from being binding upon States not partiesto that treaty if they have become customary rules ofinternational law. Nor does the article in any way pre-judge the requirements for the establishment of a rule ofcustomary law, whether general or regional. As alreadypointed out, it merely makes clear that, where the spheresof article 59 and of custom intersect, article 59 does notnegative the normal operation of custom as a factor inthe generation of rules of international law. Furthermoreit is to be noted that in its written comments the Nether-lands Government expressly states that it has no commentto make on the present article.

4. The Government of Israel suggests that the openingwords of the article should read "Nothing in these articlesprecludes, etc.", instead of "Nothing in articles 58 to 60precludes, etc.". Provided that the article retains itspresent place in the group of articles dealing with "thirdStates", the Special Rapporteur sees no objection to thesuggested modification, since it covers the point even morecompletely than the existing text.

5. The Syrian delegation suggests that the element of"recognition" should be expressly mentioned in the articleto avoid ambiguity. Presumably, it has in mind modifyingthe phrase so as to make it read: "if they have becomerecognized as customary rules of international law."Although this modification would not meet with anydifficulty from the Special Rapporteur, he does not thinkthat the reason advanced for it is very cogent. He alsobelieves that the Commission's choice of the quite neutralexpression "if they have become customary rules ofinternational law" was deliberate; and he therefore makesno new proposal in this connexion.

Article 63.—Application of treaties having incompatibleprovisions


' Cyprus. The Government of Cyprus attaches greatimportance to retaining in the draft the present wordingexpressing the over-riding character of Article 103 of theCharter. In its opinion, whenever circumstances warrant

Law of Treaties 75

it, the competent organs of the United Nations shouldbe guided by and apply Article 103 unreservedly.

Israel. The Government of Israel expresses its concur-rence with the view that cases of partial termination shouldbe removed from article 41 and placed in the presentarticle. It also thinks that the inter-relation betweenarticle 41 and the present article would be clearer if theelement of "suspension" were removed from article 41and dealt with either here or in a separate section collectingtogether all the various provisions relating to suspensionof the operation of a treaty. It observes that, if article 41is left to deal exclusively with "implied termination", itsplace in the section dealing with termination will be logi-cally correct and its provisions will be put in better focus.

The Government of Israel further suggests that, inparagraph 1, reference should be made to the rights aswell as the obligations of States. In paragraph 2, it raisesthe question whether the treaty provision must always betaken at face value, as in its view the text implies, orwhether it should not "be made open to the possibilityof a material examination in order to establish whetherin fact there is an inconsistency".

In addition, it observes that obsolescence is an impor-tant cause of termination and yet is not covered in thedraft articles. It expresses the view that the understandingof the present article would be facilitated and the scopeof its application possibly reduced, if a place were foundin the draft articles, or at least in the commentaries, forthe problem of obsolescence.

Netherlands. Noting that article 67, paragraph \(b) (if),rightly takes account of the object and purpose of thetreaty as a whole, the Netherlands Government says thatparagraph 4 of the present article, on the other hand,suggests that "every multilateral treaty can simply bedivided up into a number of bilateral legal relationshipsleaving no remainder". Again, while recognizing thatparagraphs (14), (15) and (16) of the commentary showthat the Commission has not lost sight of the questionof the coherence of the various provisions of a treatyand of their relation to its object and purpose, it is of theopinion that paragraph 4 is "one-sided" and unsatis-factory. In its view, there may be some justification forconcluding that customary law has not yet crystallizedon the point and that the problem is not yet ripe forcodification.

Yugoslavia. Commenting on articles 63, 66 and 67together, the Yugoslav Government observes that theyall have a bearing on the modification of multilateraltreaties, with reference either to all the parties or to someof them only. It suggests that in the final draft of thesearticles a single, comprehensive and clearer draft shouldbe aimed at. In particular, it feels that the consequencearising from the modification of a treaty under article 63,paragraph 5, and article 67, paragraph l(a) and (b)should be put on the same footing.

United Kingdom. The United Kingdom Governmentsuggests that paragraph 2 should be so drafted as toavoid any appearance of referring to a specific earlieror later treaty; e.g. by making it read "any earlier orlater treaty". In its introductory observations, it mentions

the test of "compatibility" in paragraph 3 as one of severalprovisions demonstrating the need of an independentadjudication of disputes regarding the operation of thedraft articles.

United States. The United States Government observesthat the article as a whole enunciates rules long and widelyaccepted and is a valuable classification. Paragraph 5 itmentions as especially important in calling attention tothe fact that by entering into a later treaty a State cannotdivest itself of treaty obligations under an earlier treatywith a State that does not become a party to the latertreaty.

Argentine delegation. The Argentine delegation refersto the article as "wisely worded".62

Kenyan delegation. The Kenyan delegation, while com-menting that the article seems quite adequate, expressesthe view that the test of "incompatibility" is subjectiveand should be modified to make it "more judicial andobjective".m


1. In paragraph 1, the Government of Israel's suggestionthat mention should be made of rights as well as of obliga-tions appear to be well founded, even although the em-phasis on the article may be primarily on obligations.

2. In paragraphs 2, the United Kingdom suggests thatthe references to "an earlier or a later treaty" should bechanged to "any earlier or later treaty" in order not toappear to refer to a specific earlier or later treaty. Thismodification, although it does not seem to change thesense of the paragraph, is perhaps an improvement froma drafting point of view. The Government of Israel'ssuggestion that the paragraph should admit the possibilityof a "material examination" of the treaty provision inorder to establish whether in fact there is an "inconsist-ency" does not seem apposite; for the paragraph concernscases where the treaty by an express provision regulatesits relation to other treaties.

3. In paragraph 3, the Government of Israel expressesthe view that the interrelation of article 41 and of thepresent article would be clearer if (a) cases of "partialtermination" were removed from article 41 and placedin the present article, and (b) if the element of "suspen-sion" were removed from article 41 and dealt with eitherhere or in a separate section covering all the variousprovisions relating to suspension of the operation of atreaty. The question of the co-ordination of the provi-sions of article 41 and 63 received the close attention of theCommission at its sixteenth session in 1964M when itdrafted the present article and again at its recent sessionin Monaco when it revised article 41. 66 The new textof article 41 makes no express mention of "partial termina-tion" of a treaty through the conclusion of a later—over-lapping—treaty. On the other hand, the Commission

62 Ibid., 846th meeting, para. 9.68 Ibid., 850th meeting, para. 38.64 Yearbook of the International Law Commission, 1964, vol. I,

742nd and 743rd meetings.66 Ibid., 1966, vol. I, part I, 830th meeting.


has retained in article 41 the provision in paragraph 2dealing with cases of "implied suspension of the operationof a treaty" resulting from the conclusion of a latertreaty whose provisions are incompatible with the earlierone. The distinction between cases of implied terminationand implied suspension under article 41 is simply one ofintention, and the Commission considered it logical andconvenient to deal with both in the same article. More-over, there are other cases, e.g. article 42 dealing withtermination as a reaction to a breach, where it is almostessential to deal with both "termination" and "suspension"in the same article. Accordingly, it did not seem to theCommission that it would be a convenient course to placeall the cases of suspension in a separate section. Onlyin dealing with the legal consequences of invalidity,termination and suspension, did the Commission findit possible to treat cases of suspension in a separatearticle.

4. The Special Rapporteur himself feels that, in orderto complete the co-ordination of article 41 and the presentarticle, it is desirable in the present article to reviseparagraph 3 so as to make it read: "when all the partiesto a treaty conclude a later treaty relating to the samesubject matter, but the earlier treaty is not terminatedor its operation suspended under article 41, etc." Other-wise there will be a slight discrepancy between the twoarticles. Moreover, when the earlier treaty is whollysuspended, the case really falls outside the present article.5. Paragraph 4 the Netherlands Government considersto be "one-sided and unsatisfactory" on the ground thatit does not take sufficient account of the relation betweenthe various provisions of a treaty and its "object andpurpose". On the other hand, it offers no alternativesolution, simply observing that there may be somejustification for concluding that customary law has notyet crystallized on the point and that the problem isnot yet ripe for codification. The rules set out in para-graph 4 are founded upon fundamental principles oftreaty law: the principle pacta tertiis non nocent and theprinciple that States in entering into a new agreement arepresumed to intend that its provisions shall apply betweenthem, rather than those of any earlier agreement betweenthem regarding the same matter. The problem whichappears to preoccupy the Netherlands Government isone to which the Commission itself gave the most anxiousattention in 1964, namely, whether certain types of treaty,by reason of their object and purpose, should be consider-ed to be of such a character that they limit the actualcompetence of their parties to enter into a valid subsequenttreaty inconsistent with their provisions. This problemwas examined at length in paragraphs (13) to (17) of theCommission's commentary upon the 1964 text of thepresent article66 and no purpose would be served in settingout the various considerations again here. The Commis-sion considered that the parties to the new treaty mayengage their international responsibility to the otherparties to the earlier treaty if the new treaty violatesprovisions of the earlier one; and it expressly reservedthe question of State responsibility for breach of theearlier treaty in paragraph 5. At the same time, however,

66 Ibid., 1964, vol. II, pp. 189-191.

it felt bound to conclude that, as the law stands today,by entering into the earlier treaty the parties do notrender themselves legally incompetent to enter intoanother inconsistent treaty and that the later treaty isvalid and effective as between the States parties to it.It recognized that, if the provisions of the earlier treatystate rules of jus cogens, a later treaty incompatible withit may be actually void; but it considered that this wouldresult from the jus cogens nature of the provisions of theearlier treaty, not from the mere incompatibility of thelater treaty with the earlier one. Accordingly, jus cogensapart, paragraph 4 of the article adopted in 1964 is basedon the relative priority, rather than the nullity, of theconflicting treaties—always without prejudice to thequestion of State responsibility for breach of the earliertreaty. As this appears to be in conformity with long-standing practice, and as the existence of treaties whoseprovisions are in some degree incompatible is quite acommon phenomenon, it hardly seems possible for theCommission to adopt the suggestion of the NetherlandsGovernment that the problem is not yet ready for codi-fication.

6. The Yugoslav Government makes two points withrespect to the article. First, it would prefer to see the provi-sions of the articles 63, 66 and 67, touching the modifica-tion of multilateral treaties, combined in a single, compre-hensive and clear text. But the present article is notconfined to the problem of incompatible treaty provisionsarising out of treaties concluded for the purpose of"modifying" a prior treaty; it seeks to deal with allcases of incompatibility and to cover some cases in thepresent article and others in an article on modificationmight perhaps lead to a greater, if different, complexity.Another difficulty is the inherent complexity of the matterscovered by the three articles—which led the Commissionin 1964 to prefer to deal with "amendment of multilateraltreaties" and "inter se" agreements in separate articles.This Government's second point is understood by theSpecial Rapporteur as being essentially a request that theCommission should try to ensure full co-ordinationbetween the present article and article 67; and, as such,it seems to him to call for consideration primarily inconnexion with article 67.

7. There remains the Government of Israel's observationregarding "obsolescence" as an important cause of termi-nation and suggestion that a place should be found forit in the draft articles. Clearly, the point is a general oneand does not arise directly in connexion with the draftingof the present article. In fact, the point has been raisedpreviously by the Special Rapporteur as to whether"obsolescence" or "desuetude" should be dealt withspecifically as a ground of termination, and in order todispose of the matter, the Commission may think ituseful to ask the Drafting Committee to consider thepoint and report its conclusion. The problem is to deter-mine whether "obsolescence" and "desuetude" should beregarded merely as cases of implied agreement to termi-nate founded on an interpretation of the intention of theparties in the light of the facts, or as examples of theapplication of article 44 (fundamental change of circum-stances), or whether they should be regarded as distinct

Law of Treaties 77

legal causes of termination. At present, the Commissionhas before it (a) draft article 40—dealing generally withtermination of treaties by agreement, the decision onwhich it postponed until the eighteenth session, and (b)article 41 dealing with termination implied from enteringinto a subsequent treaty. Agreement to terminate impliedfrom other facts is not specifically dealt with, though itmight be said to fall under article 40.

Article 64.—The effect of severance of diplomatic relationson the application of treaties


Cambodia. The Cambodian Government considers thatparagraphs 2 and 3 are too vague in that they leave it toeach party to appreciate to what extent the severance ofdiplomatic relations permits the continued applicationof the treaty. It fears that a State may resort to severanceof diplomatic relations in order to evade its obligationsunder a treaty. In its view, the text opens the door to badfaith and involves a dangerous derogation from the rulepacta sunt servanda. It therefore considers the deletionof paragraphs 2 and 3 to be essential.

Hungary. Noting that this article deals with the effectsof severance of diplomatic relations, the HungarianGovernment raises the question of the severance ofconsular relations. It suggests that the effect of severanceof consular relations on the application of treaties shouldbe dealt with either in the present article or in a separatearticle. It points out that the Vienna Convention on Con-sular Relations expressly contemplates the possibility ofa severance of consular relations. In its view, the newprovision should specify that paragraphs 1-3 of the presentarticle apply equally to severance of consular relations.

Israel. The Government of Israel suggests that the pre-sent place is not the right one for the article. It alsosuggests that the last words of paragraph 2 should read:"disappearance of the means necessary for its operation."In addition, it observes that the severance of diplomaticrelations ought not to be allowed to be an excuse evenfor the temporary suspension of the operation of a treatywhen that is the very contingency for which the treatywas intended to provide; e.g. the Geneva Conventionsof 1949 for the protection of victims of war. Paragraph (3)of the Commission's commentary, it feels, may be toocategorical on this point.

Netherlands. The Netherlands Government has nocomment except that paragraph 3 can be dispensed withif the Netherlands proposal for the modification ofarticle 46 (separability of treaty provisions) is adopted.

United Kingdom. The United Kingdom' Governmentconsiders that, unless the exception in paragraph 2 is care-fully and narrowly defined, the rule in paragraph 1 maybe impaired. It observes that, in paragraphs (3) and (4)of the commentary, the Commission recognizes that casesof supervening impossibility of performance may occurin consequence of the severance of diplomatic relations,and that article 43 deals with supervening impossibilityof performance only as regards the disappearance ordestruction of the "subject matter of the rights and obliga-

tions contained in the treaty." In its view, the severance ofdiplomatic relations affects not the subject matter of therights and obligations, but rather "the means necessaryfor the application of the treaty." Having regard to thisdifference, it suggests that the requirement of impossibilityof performance, referred to in the commentary on thepresent article and set out in article 43, should be expresslyincluded in the formulation of paragraph 2 of the presentarticle. Lastly, it emphasizes that treaty obligations con-cerning the peaceful settlement of disputes ought not tobe capable of being suspended by reason only of theseverance of diplomatic relations.

United States. In general, the United States Govern-ment endorses the need for the article but observes thatthe rule in paragraph 2 requires careful study. In its view,although the normal means for the application of thetreaty may be lacking in a case where diplomatic relationsare severed, there may be other avenues for satisfying,in part at least, the requirements of the treaty. Para-graph (3) of the Commission's commentary uses theexpression "supervening impossibility of performance",but that concept does not seem to the United StatesGovernment to be clearly reflected in either paragraph 2 or3 of the article itself. It suggests that the Commission'sintentions would be more fully reflected, and possibleabuse of paragraphs 2 and 3 avoided, if a further para-graph were added as follows:

"4. The suspension may be invoked only for theperiod of time that application is impossible."

Even so, however, it doubts whether this would sufficeto avoid altogether the abuses that might occur underparagraphs 2 and 3. It therefore concludes that thebetter solution may be to retain paragraph 1 only andto leave the subject matter of the remaining paragraphsto be governed by other provisions of the draft articlessuch as article 43, paragraphs 2 and 3. In any event,it feels that further consideration of the over-all effect ofthe rules in paragraphs 2 and 3 of the present article isrequired.

Greek delegation. The Greek delegation observes thatit would be preferable for the Commission to considerthe principle "impossibilium nulla est obligatio" in a moregeneral way instead of including it in a provision concern-ing the severance of diplomatic relations (the delegationappears to have overlooked article 43 of part II).67

Thai delegation. While agreeing with paragraph 1,the Thai delegation feels that paragraphs 2 and 3 providean unnecessary and undesirable opportunity for a partyto resort to severance of diplomatic relations as a politicalexpedient to shirk treaty obligations. In its view, the word"disappearance of the means necessary for the applicationof the treaty" (paragraph 2) and "the disappearance ofsuch means" (paragraph 3) are open to subjective inter-pretation. It considers that supervening impossibilityof performance is already adequately covered in articles 43and 54 and that paragraphs 2 and 3 of the present articlecould be deleted altogether. Otherwise, it is of the opinion



that these paragraphs should be reformulated in a moreprecise and restrictive manner. 68


1. The principal rule stated in paragraph 1, that theseverance of diplomatic relations between parties to atreaty does not affect the legal relations between themestablished by the treaty, appears to meet with the unanim-ous approval of Governments. The Government of Israelquestions the placing of the article in its present position,without making any specific proposal of its own. TheSpecial Rapporteur, in a tentative paper for the DraftingCommittee, has suggested that this article should followclose after the pacta sunt servanda article. But as the wholematter of the final order of the articles is now beforethe Drafting Committee, the Commission will presumablyprefer to await its report before considering the particularplace of the present article.

2. On the other hand, almost all the Governmentswhich have commented on the article take the view thatparagraph 2 should be made more strict. A number ofthem, in effect, advocate either that paragraph 2 shouldbe expressed in terms of temporary impossibility of per-formance or that the cases arising under this paragraphshould be left to be covered by the provisions of article 43regarding "supervening impossibility of performance".Article 43 underwent some revision at the recent sessionof the Commission in Monaco 69 so that the commentsof these Governments on the present article have to beappreciated in the light of the new text of article 43 whichnow reads:

"A party may invoke an impossibility of performinga treaty as a ground for terminating it if the impossi-bility results from the permanent70 disappearance ordestruction of an object indispensable for the executionof the treaty. If the impossibility is temporary, it maybe invoked only as a ground for suspending the opera-tion of the treaty".

The new text formulates the criteria of impossibility ofperformance in terms of the permanent disappearance ordestruction of "an object indispensable for the executionof the treaty" rather than of "the subject matter of therights and obligations contained in the treaty". In thepresent context, on the other hand, as the United KingdomGovernment emphasizes and as the article adopted in1964 recognizes, it is "means" necessary for the applica-tion of the treaty which may be affected by the severanceof diplomatic relations rather than an "object" indispen-sable for its execution.

3. The view expressed by Governments that para-graph 2 as at present drafted may appear to leave toomuch scope for invoking the severance of diplomaticrelations as a pretext for suspending performance of a

68 Ibid., 850th meeting, para. 11.69 Yearbook of the International Law Commission, 1966, vol. I,

par t I , 832nd and 833rd meetings.70 On re-examining article 43 , the Special Rappor teur is inclined

to think that the word " p e r m a n e n t " ought to be either deleted orplaced in front of the word " impossibility " where it first occurs,i.e. " A party may invoke a permanent impossibility, etc. ".

treaty is thought by the Special Rapporteur to be justified.The Commission itself, in paragraphs (3) and (4) of itscommentary on the present article in 1964, envisagedparagraph 2 as covering cases of a temporary impossibilityof performance resulting from the disappearance of thediplomatic channel. But the text of the paragraph fallsshort of stating the stringent criterion of "impossibilityof performance", even although the words "if it resultsin the disappearance of the means necessary for the appli-cation of the treaty" may in some measure imply thatcriterion. The difficulty arises, it is thought, from thefact that the text speaks of a right to invoke, as a groundfor suspension, the severance of diplomatic relationsrather than of a right to invoke the disappearance of ameans indispensable to the application of the treaty.

4. The solution which the Special Rapporteur is inclinedto favour is that indicated by the United States and ThaiGovernments, namely, to retain the general rule statedin paragraph 1 and to leave the cases envisaged in para-graph 2 to be covered by article 43. The latter article would,of course, then have to be modified so as to include thedisappearance of "a means" as well as the disappear-ance of "an object" indispensable for the executionof the treaty. In this case, it may still be desirable to touchon the question of "impossibility of performance" inparagraph 2 in the form of a provision making a cross-reference to article 43. In other words, paragraph 2might be revised on the following lines:

If the severance of diplomatic relations should result in atemporary impossibility of performing the treaty in consequenceof the disappearance of a means indispensable for its execution,articles 43 applies.

This solution would have the advantage of bringingthe cases envisaged in paragraph 2 into the group ofarticles dealing with the termination and suspension ofthe operation of treaties to which they really seem tobelong.5. Paragraph 3 of the 1964 text, which deals with thequestions of partial impossibility of performance andof the principle of the separability of treaty provisions,is no longer necessary since those points are now suffi-ciently covered in article 46 as revised at the recentsession in Monaco.71 The suggestion of the NetherlandsGovernment that this paragraph may be dispensed withis therefore clearly acceptable.

6. There remain for consideration a number of particularpoints made in the comments of Governments. First,the Government of Israel, citing the Geneva Conventionsof 1949, stresses that the severance of diplomatic relations"ought not to be allowed to be an excuse for the temporarysuspension of the operation of a treaty when that is thevery contingency for which the treaty was intended toprovide". The Special Rapporteur suggests that, ifparagraph 2 is modified in the way proposed above so asto limit that paragraph explicitly to cases of "impossibilityof performance", the preoccupation of that Governmentwill automatically be met. Certainly, it would seem outof the question to invoke an impossibility of performance

71 Yearbook of the International Law Commission, 1966, vol. I,part I, 843rd meeting, para. 13.

Law of Treaties 79

resulting from a severance of diplomatic relations whenthe treaty itself specifically provides for that contingency.

7. Secondly, there is the point made by the UnitedKingdom that treaty obligations concerning the peacefulsettlement of disputes ought not to be capable of beingsuspended by reason only of the severance of diplomaticrelations. This point, in the opinion of the Special Rap-porteur, is in itself clearly valid. It is, indeed, unthinkablethat the obligations in regard to the peaceful settlementof disputes, which are set out in Article 2, paragraph 3,and in Article 33 of the Charter of the United Nations,should be capable of being suspended by the severanceof diplomatic relations. The question is whether it isnecessary to provide for the point specially, either inthe present article or in article 43; in other words, whetherthe severance of diplomatic relations creates any suchimpossibility of performing obligations of peacefulsettlement as would entitle a State to invoke article 43.Clearly, the ability of the States concerned to negotiatedirectly may be impaired. But, having regard to the othermethods of negotiation open to them through the UnitedNations, through regional organizations or through themedium of friendly States, it may be doubted whetherthere could be said to be any "impossibility of perform-ance". Practice, for example the Corfu Channel incident, n

seems to confirm that the absence of diplomatic relationsdoes not create any legal impossibility of carrying outobligations of peaceful settlement or relieve the partiesto a dispute in any way of their duty to perform thoseobligations. On the other hand, the performance in goodfaith of obligations undertaken with respect to the peace-ful settlement of disputes is of such outstanding import-ance that the Commission may wish to consider thepossible addition to the present article of a provisionon the following lines:

In no circumstances may the severance of diplomatic relationsbetween parties to a treaty be considered as resulting in animpossibility of performing any obligation undertaken by themin the treaty with respect to the peaceful settlement of disputes.

8. Thirdly, there is the suggestion of the United StatesGovernment that a new paragraph should be added tothe existing text of the present article to the effect thatany suspension of the operation of the treaty resultingfrom severance of diplomatic relations can be invoked"only for the period of time that the application of thetreaty is impossible". This suggestion is made by theUnited States only in case the Commission does notadopt its more radical proposal to delete all but the firstparagraph and leave the rest to be covered by article 43.Since the Special Rapporteur favours that more radicalproposal, he does not see any need for the new para-graph to be added to the present article. On the otherhand, the United States suggestion does perhaps provokea question as to whether the second sentence of article 43,as adopted at the Monaco session, is drafted with quitesufficient precision in regard to the duration of thesuspension. Is it desirable to underline that the "suspen-sion" must be co-extensive with the "impossibility"?

72 Corfu Channel case, I.C.J. Reports 1949, p. 4.

In other words, ought the second sentence of article 43to be revised so as to make it read:

If the impossibility is temporary, it may be invoked only asa ground for suspending the operation of the treaty while theimpossibility exists?

9. Finally, there is the suggestion of the HungarianGovernment that the effect of the severance of consularrelations should either be covered in the present articleor be dealt with in a separate article, and that the samerules should be applied as in the case of severance ofdiplomatic relations. Logical though this suggestion mayappear at first glance, the Special Rapporteur feels somehesitation in accepting the idea that the severance ofdiplomatic relations and the severance of consularrelations should be placed on the same footing for thepurpose of the present article. It is true that the ViennaConvention on Consular Relations, in articles 2 and 27,envisages the possibility of the severance of consularrelations as a measure independent of the severance ofdiplomatic relations. But the severance of consularrelations does not seem to have the same general relevancein regard to the treaty relations of States as the severanceof diplomatic relations. The maintenance of diplomaticrelations is essential for the existence of normal inter-national relations between States in a way that the main-tenance of consular relations is not. Indeed, the only realneed for the present article is firmly to negative the pos-sible implication that, by severing diplomatic relationsand thereby suspending normal international relations,a State equally suspends its treaty relations with the otherState concerned. But the severance of consular relationsdoes not by itself carry any such implication. On the otherhand, what is said in paragraph 1 of the severance ofdiplomatic relations is, of course, largely true of theseverance of consular relations: it does not normallyaffect the legal relations between the two States establishedby treaties. Again, it is possible to conceive of questionsof "impossibility of performance" being raised—whethervalidly or not—as a result of a severance of consularrelations; e.g. in regard to the machinery for the executionof established treaties. The Special Rapporteur feels,however, that delicate questions might arise as to theadmissibility of the severance of consular relations undersuch treaties. Nor is it to be forgotten that there arelarge numbers of consular conventions in existence whichmust be taken into account in any formulation of a generalrule regarding severance of consular relations. In short,for the reasons indicated, the Special Rapporteur feelssome doubt on the question of making the rules of thepresent article apply also to severance of consular rela-tions. If the Commission should favour introducing aprovision on this question, the Special Rapporteur con-siders that it should be in the form of a separate para-graph which would at the same time take account of theproblem of consular conventions.

Article 65.—Procedure for amending treaties

Comments of GovernmentsIsrael. Observing that paragraph (7) of the commentary

correctly recognizes the possibility of an oral agreementor tacit agreement to amend a treaty, the Government


of Israel suggests that the opening words of the articleshould be revised to read: "A treaty may be amendedby agreement in writing between the parties and the rulesin part I shall apply etc.". It also draws attention to thephrase "the established rules of an international organiza-tion", pointing to its remarks regarding this phrase inits comments on articles 66 and 67.

Netherlands. The Netherlands Government observesthat the words "If it is in writing" imply recognition ofthe possibility of a written and ratified treaty beingamended by a verbal agreement and that, although thisoccasionally occurs in practice, it is not to be recom-mended. Accordingly, it would prefer no mention to bemade of it in the article. It adds that the deletion of thosewords would not rule out the possible significance of averbal agreement in the context of the present article.Pointing out that a verbal agreement with "subsequentpractice" is recognized in article 68(&), it expresses theopinion that a verbal agreement without "subsequentpractice" would be of little or no importance. It proposesthat the second sentence should read simply: "The ruleslaid down, etc.".

United States. The United States Government drawsattention to the relation between the two exceptionsmentioned at the end of the article, namely, cases wherea treaty lays down particular rules for its own amendmentand cases where "the established rules of an internationalorganization" prescribe a particular procedure. It suggeststhat questions may arise as to which of those exceptionsis to prevail when a treaty concluded under the auspicesof an international organization contains express provi-sions regarding the manner of its amendment and therules of the international organization subsequently pro-vide for some other manner of amendment. At the sametime, it seems to consider that those questions would besolved by the principle that the agreement of the partiesshould govern the procedure of amendment.

However, it foresees difficulty (a) in the case of treatiesthat have been concluded outside an international orga-nization and are to be amended by agreements concludedunder the auspices of an international organization, and(b) in the case of treaties which contain no provision foramendment and are concluded under the auspices of aninternational organization which subsequently developsrules that would permit amendment without agreementof all the parties. In those cases, it suggests, a questionarises as to whether the provisions of article 65, withrespect to international organizations, would prevail overthe provisions of article 67, regarding agreements tomodify multilateral treaties between certain of the partiesonly. In its view, it might be contended that, underarticle 65, an amendment of a treaty under the auspicesof an international organization could deprive some ofthe parties to that treaty of rights under it and relieveStates which become parties to the amendment fromobligation to parties to the treaty which do not acceptthe amendment. The inclusion in the present article ofthe reference to international organizations seems to theUnited States Government to imply that a separate bodyof treaty law has been and can continue to be formulatedby international organizations with respect to the amend-

ment not only of treaties concluded under the auspicesof such organizations but of other treaties as well. Ac-cordingly, it reserves its position in regard to the secondsentence in the present article.

Greek delegation. The Greek delegation observes that,since an agreement amending an agreement is itself atreaty, the present article may be superfluous. On theother hand, it feels that the draft should include a pro-vision for taking account of any proposal to amend atreaty. In its view, there is, for example, a certain analogyto be drawn between a clause in an arbitration treatyproviding for the possibility of negotiations beforerecourse to arbitration and proposals for amending atreaty.73

Romanian delegation. The Romanian delegation con-siders that the second sentence of the present article,together with article 66, paragraphs 1 and 2 and article 72,paragraph 2(b), open the way to contradictions betweenthe desires of States parties to treaties and the rulesestablished by international organizations. It maintainsthat such provisions regarding the established rules ofan international organization are incompatible with thefundamental principle that no treaty may be amendedexcept with the participation and/or consent of theparties to it. In its view, the exceptions proposed inconnexion with the established rules of internationalorganizations are likely to create confusion in the inter-pretation of treaties and should be deleted.74


1. Two Governments (Israel and the Netherlands) thoughrecognizing that a treaty may sometimes be amended byan oral or tacit agreement, prefer that the possibility ofsuch less formal modes of amendment should not beunderlined in the present article. Both make proposalsfor revising the article so as to omit the opening wordsof the second sentence, "If it is in writing, the rules laiddown in part I, etc.". Bearing in mind article 2{b), theSpecial Rapporteur feels that it would be appropriate toomit those words from the present article. Article 2{b),it will be recalled, provides that the fact that the draftarticles do not relate to international agreements notin written form is not to affect their legal force or theapplication to them of any of the rules contained in thedraft articles to which they would be subject indepen-dently of those articles. This provision would seem suffi-cient to safeguard oral or tacit agreements to amend atreaty; and tacit amendment by subsequent practice isdealt with specifically in article 68. The form of amend-ment proposed by the Netherlands Government appearsto the Special Rapporteur to be preferable. He accordinglyproposes that the words "If it is in writing" should simplybe deleted from the second sentence which would thenbegin: "The rules laid down in part I...".

2. Three Governments (Israel, United States andRomania) take exception to the provision regarding "theestablished rules of an international organization". They


u Ibid., 848th meeting, paras. 10 and 11.

Law of Treaties 81

take the view that the second sentence of the article, asat present drafted, goes too far in appearing to give anoverriding effect to the "established rules of an inter-national organization" in the amendment of any treaty—even a treaty drawn up merely "under its auspices", i.e.merely using its facilities, and indeed, even a treaty drawnup altogether outside the organization. This was notcontemplated by the Commission, which intended thewords: "except in so far as the established rules of aninternational organization may otherwise provide" simplyas a general reservation to safeguard special cases suchas the international labour conventions, the amendmentof which is controlled by the rules of the organization.However, as the reaction of the three Governments shows,such a reservation of "the established rules of an inter-national organization" may give rise to equivocal inter-pretations which it is clearly necessary to avoid.

3. The Commission itself has narrowed its own approachto the relation of the rules of international organizationsto treaty making procedures since it adopted the firstdraft of part I in 1962. In that draft it tended to dealwith treaties concluded "under the auspices of an inter-national organization" on the same footing as treatiesconcluded within an organization, and to allow the pro-cedures for both categories to be affected by the "estab-lished rules of an international organization". Furtherconsideration of the problem, however, led the Commis-sion, in revising part I in 1965, to restrict the operationof "established rules of an international organization" totreaties which are constituent instruments of an organi-zation or which have been drawn up within an organiza-tion, as in the case of international labour conventions.At the same time, the Commission decided to deal withthis problem in a general provision which now appearsas article 3(bis) and reads as follows:

"The application of the present articles to treatieswhich are constituent instruments of an internationalorganization or have been drawn up within an inter-national organization shall be subject to the rules ofthe organization in question."

Accordingly, quite apart from the comments of the threeGovernments, it would have been logical to delete fromthe present article the reservation regarding the rules ofinternational organizations and to leave the question tobe governed by article 2>{bis), and this is, indeed, theproposal of the Special Rapporteur.

4. On the basis of the changes proposed in paragraphs 1and 3 above, the revised text of the article would read:

A treaty may be amended by agreement between the parties.The rules laid down in part I apply to such agreement exceptin so far as the treaty may otherwise provide.

5. It is appreciated that the deletion of the reservationregarding the established rules of an international orga-nization from the present article may not meet all thepreoccupations expressed in the comments of Govern-ments to the fullest extent. For example, it may not meetthe United States' query regarding the case of a treatyconcluded within an organization which subsequentlyintroduces rules controlling amendments to treaties con-

cluded within the organization. The Special Rapporteurdoubts whether the Commission should attempt in thepresent articles to provide a general answer for suchspecial cases, for they would seem to raise questions notonly of inter-temporal law but also of the law of inter-national organizations. A more general query raised bythe Government of Israel may, however, require theattention of the Commission in connexion with its finalconsideration of the text of article 3(bis). This is thequestion whether the phrase "treaty which has beendrawn up within an international organization" is restric-tive enough. This Government suggests that the treatyought not merely to have been drawn up within theorganization, but to have a material link with the consti-tution of the organization, as in the case of labour con-ventions (see its comments on articles 66 and 67); andit states that many United Nations conventions have nosuch material link with the constitution of the Organizationbut merely make use of its conference machinery. When thewide "Purposes" of the United Nations and the specificprovisions of Chapters IX and X of the Charter arerecalled, this statement may be disputable. Moreover,unless the "material link" is defined in terms of the objectsand purposes of the organization, its definition may bedifficult. However, since there is evidently some feelingamong Governments that the reservation regarding"established rules of an international organization" shouldbe of narrow scope, the Commission may wish to re-examine the problem before finally approving the textof article 3(bis).

Article 66.—Amendment of multilateral treaties


Hungary. The Hungarian Government considers thatparagraph 1 should be completed by adding a specialrule regarding general multilateral treaties. In its viewevery State, even those which are not parties to the ori-ginal treaty, should be invited to take part in a conferencedealing with the amendment of general multilateraltreaties. At the same time it emphasizes that this additionto the present article presupposes the alteration of thetext of article 8 so as to bring its provisions into accordwith the definition of general multilateral treaties con-tained in article 1.

The Hungarian Government further questions the pro-vision in paragraph 3 as being somewhat hypothetical.It doubts whether there is any need to create a new rulefor a hypothetical case whose regulation hardly seemsjustified by practice. It also feels that the provision isopen to question on the ground that it attaches a certaineffect to the signature of a treaty and is moreover, in itsview, out of place in the section dealing with modificationof treaties.

Israel. The Government of Israel suggests that para-graph 1 should carefully distinguish between the "imper-sonal proposal to amend a multilateral treaty" and theright of a party to propose an amendment to a treatywhich may be restricted by the terms of the treaty itself.In general, it considers that the obligations of the otherparties should be determined in the first place by the


treaty (if it contains relevant provisions) and only in thesecond place by general rules. While accepting the distinc-tion made in articles 66 and 67 between proposals foramendment in relation to all the parties and proposalsinitially for inter se amendments, it suggests that theremay be an intermediate case: a group of parties mightinitiate discussion of amendments without its being clearinitially as to the kind of amendments that will finallyemerge from the discussion. In its view, this kind ofsituation may be more prejudicial to the positions of theother parties than the situations in articles 66 and 67.As a remedy, it proposes that the question of notice ofamendments should be dealt with in an independentarticle—article 65(bis) it would be—applicable to allproposed amendments. It feels that, under the presenttexts of articles 66 and 67, notification of the conclusionof an inter se agreement, as provided in paragraph 2 ofarticle 67, may come too late, particularly having regardto paragraph \{b) (ii) of that article. It considers that theother parties ought to be given an early oppor-tunity to determine whether the enjoyment of their rightsor the performance of their obligations is likely to beadversely affected by a proposed modification of the treaty.

In addition, it queries whether the recipients of noti-fications of proposed amendments, whether general orinter se, should be limited—at all events in an initialperiod—to the parties to the treaty. The Commission, inits view, does not take into account the possibility ofcases where a multilateral treaty will not enter into force,for want of a sufficient number of ratifications, unlessamendments, the necessity for which has been establishedonly after the adoption of the text, are first made.

The Government of Israel also considers that theexpression "established rules of an international organi-zation" in paragraph 2 of the present article and inarticle 65 is highly ambiguous in the present context.It asks whether the expression refers to the rules of aninternational organization applying to the members ofthat organization as such, or to those rules which applyto treaties concluded or to treaties which have been drawnup within an international organization, the parties towhich may not necessarily all be members. Recallingits proposal to generalize article 48, it raises the questionof the adequacy of the criterion of a treaty's having beendrawn up within an international organization. It suggeststhat the real criterion has to be sought in the materialconnexion of the treaty with the organization withinwhich it has been drawn up—its material link with theconstitution of the organization; e.g. international labourconventions. Many treaties drawn up within the UnitedNations or at conferences convened by it have no suchmaterial connexion, or only a very tenuous one, with theOrganization.

In paragraph 2(b) the Government of Israel suggeststhat it is not sufficient to refer to article 63, and thatcloser co-ordination is required between articles 59-61 andarticles 65-67.

Netherlands. The Netherlands Government considersthat paragraph 3 in its present form could be taken tomean that, conversely, a State party which has not signedthe agreement (nor otherwise clearly intimated that it

does not wish to oppose the amendment) is liable ifthere is a breach of the treaty. It observes that underparagraph 1 such a State would have taken part in thepreliminary consultation on the desirability of an amend-ment and probably even in the drawing up of the amend-ing agreement. It then expresses the view that liabilityfor breach of the treaty will as a rule be out of place inthis amendment procedure, and that this will be so evenin the case of a party that has dissociated itself from theproposed amendment in the course of the procedure. Inits view, paragraph 3 should be deleted.

United States. The United States Government thinksthat the article as a whole may serve as a useful guide.In paragraphs 1 and 2, however, it reserves its positionin regard to the phrase "established rules of an inter-national organization", for the reasons given by it in itscomments on article 65. It also suggests that the provisionin paragraph 3, by which a State which signs an amend-ment is precluded from protesting against the applicationof the amendment, may be too severe. This provision, itsays, goes further than the observation in paragraph (13)of the Commission's commentary that the State signingbut not ratifying an amendment is "precluded only fromcontesting the right of other parties to bring the amend-ment into force as between themselves". The words"application of an amending agreement" in paragraph 3would, in its view, cover the "giving of effect to provisionsin the amending agreement that derogate from or areotherwise incompatible with the rights of parties underthe earlier agreement". In consequence, it believes thatparagraph 3 may have the effect of discouraging Statesfrom signing an amendment if they are not certain thatthey can ratify it; and that States may sometimes considerit necessary to go through their whole treaty-makingprocedures, including legislative or parliamentary appro-val, before signing. Signature of an amendment would,under paragraph 3, constitute a waiver of treaty rights,

Yugoslavia. Commenting in general terms on articles 63,66 and 67, the Yugoslav Government observes that, inthe final text of these articles bearing on the modificationof multilateral treaties, whether in relation to all or onlyto some of the parties, it will be desirable to aim at asingle, comprehensive and clearer solution.

Argentine delegation. The Argentine delegation refersto the present article as one which has been "wiselyworded".76

Romanian delegation. The Romanian delegation's reser-vations regarding the use of the phrase "established rulesof an international organization" in this article and inarticles 65 and 72(6) have already been set out underarticle 65, to which members of the Commission are askedto refer. In brief, it maintains that the provisions regardingthe established rules of an international organization inparagraphs 1 and 2 of the present article are incompatiblewith the principle that no treaty may be amended exceptwith the participation and/or consent of the parties toit.76

76 Ibid., 846th meeting, para. 9.78 Ibid., 848th meeting, paras. 10 and 11.

Law of Treaties 83


1. Three Governments (Israel, Romania, United States)have questioned the references to the "established rulesof an international organization" found in paragraphs 1and 2 of the article on the grounds that they may be opento large interpretations and go too far in subordinatingthe will of the parties to the rules of international organi-zations in the matter of the amendment of multilateraltreaties. This point has already been discussed in para-graphs 2-5 of the Special Rapporteur's observations onarticle 65, where it is recalled that in 1965 the Commissiondecided to deal with the relation of the rules of inter-national organizations to the general law of treatiesin a comprehensive provision which now appears asarticle 3(bis). In the present article, as in article 65, thelogical consequence of that decision will be to delete thereservations in regard to the "established rules of aninternational organization"; and the Special Rapporteurso proposes in both paragraphs 1 and 2. The effect ofadopting this proposal, as pointed out by the SpecialRapporteur in his observations on article 65, will auto-matically be to narrow the scope of the reservation inthe present article regarding the rules of internationalorganizations. At the same time, when it has completedits re-examination of the draft articles, the Commissionwill doubtless review the wording of article 3(bis) inorder to satisfy itself that the reservation is not too largein scope.

2. In paragraph 1 the Government of Israel asks thatthe text should distinguish between the "impersonal"proposal to amend a multilateral treaty and the right topropose an amendment which may be restricted by theterms of the treaty. The Special Rapporteur understandsthis request as suggesting that the paragraph should beformulated so as to express more comprehensively thatit states only residuary rules applicable in the absence ofspecific provisions in the treaty. Sub-paragraphs (a) and(b) are already stated as residuary rules, so that the pointmay primarily relate to the provision in the openingphrase: "every party has the right to have the proposalcommunicated to it". This phrase was made subject tothe qualifying words "subject to the provisions of thetreaty" in the text submitted by the Special Rapporteur tothe Commission at its 753rd meeting 77 and it seemsprimarily to have been drafting considerations which ledto its being made independent of those words. The Com-mission certainly attached great importance to the rightof every party to be notified of any proposal to amend amultilateral treaty. But when the substantive rights totake part in the decision as to the resulting action (sub-paragraph (a)), and to take part in the conclusion ofany amending agreement (sub-paragraph (b)), are madesubject to the overriding effect of the provisions of thetreaty, it seems logical that the right to notification shouldalso be so subject.

3. The Government of Israel's suggestion may perhapshave been intended to cover also the right of a party toput forward a proposal for amending a multilateral

treaty; and it is, of course, true that a number of multi-lateral treaties contain clauses designed to restrict themaking of proposals for amendment in some manner;for example, until after the elapse of a specified period oftime. The Commission considered this aspect of thequestion in 1964.78 While recognizing that such clausesare not uncommon and that the influence which they mayhave on the reaction of the other parties to an amendingproposal is not in conformity with a specific provisionin the treaty, the Commission felt that such clauses donot and cannot deprive a party of the faculty of raisingas a political matter the question of the amendment of aprovision which it considers to be unsatisfactory. Accord-ingly, it deliberately avoided formulating the presentarticle in such a way as to appear to recognize that a .treaty provision may place an absolute legal bar on aparty's faculty to make a political proposal for theamendment of a treaty. It preferred to speak in generalterms of "Whenever it is proposed that a multilateraltreaty should be amended, etc." and to leave it to theother parties to invoke or not invoke any clause in thetreaty restricting proposals for its amendment.

4. In the English text of paragraph 1, a small correctionis necessary to take account of a decision of the Com-mission at its 764th meeting when it was expressly agreedto substitute the words "as between" for "in relation to" . 7 9

This change seems to have escaped attention in the finalrevision of the 1964 report, and it may be that the Spanishtext also requires to be modified so as to bring it intomore exact correspondence with the French text.

5. The Government of Israel makes two points in regardto the notification of proposals of amendment, whichapply both to the present article and to article 67. First,it suggests that there may be an intermediate class ofcase where a group of parties initiate discussions regardingamendments without its being clear as to the kind ofamendments which will emerge—whether they will beinter se amendments or proposals for general amendments.It proposes that this type of case should be guardedagainst by dealing with the question of notice of amend-ments in an independent article which would followarticle 65, but does not indicate what should be the rulesstated in this independent article. In order to meet inthis way the preoccupation of the Government of Israelin regard to this "intermediate" class, it would seemnecessary to impose an obligation on every party to amultilateral treaty to notify all other parties of anypolitical discussions on which it embarks with any otherparty regarding the possible amendment of the treaty.But such an obligation would hardly seem likely to beacceptable to States, and might even prove a hindranceto the germination of desirable proposals for the amend-ment of the treaty. The Special Rapporteur accordinglydoubts the advisability of the Commission's trying tolegislate directly for this so-called "intermediate" classof case. On the other hand, two other Governments intheir comments on article 67 have indicated that theyshare the Government of Israel's doubts whether the

" Yearbook of the International Law Commission, 1964, vol. I,p. 196.

78 Ibid., 1964, vol. II, 744th to 747th meetings, pp. 132-157."> Ibid., 1964, vol. I, p. 269, para. 33.


provision in paragraph 2 of that article for the notificationof inter se agreements provides a sufficient safeguard forthe rights of the other parties. Accordingly, the SpecialRapporteur feels that this point should be met rather bystrengthening paragraph 2 of article 67, and this may makeit easier to maintain the distinction between "amendment"and "inter se" modification of multilateral agreementson which the Commission so much insisted in 1964.

6. The second point is a query whether, at any rateduring an initial period in the life of a multilateral treaty,States parties to the treaty should alone be entitled tobe notified of proposals of amendment. This pointrelates to the rights or interests of States that took partin drawing up the treaty but have not yet become parties;and in certain other contexts—for example, opening atreaty to additional participation (article 9) and termina-tion by agreement (article 40)—it is a point which hasreceived close attention from the Special Rapporteur andthe Commission. In both articles 980 and 4081 the Com-mission, in 1962 and 1963 respectively, adopted textswhich provided that, for a period of years, States whichparticipated in the drawing up of the text of the treatyshould have a voice in decisions regarding it. The Com-mission has not yet completed its revision of either ofthese articles; in the case of article 9 because of a specialproblem regarding general multilateral treaties, and inthe case of article 40 because of the possible link betweensuspension of the operation of a treaty only betweencertain parties with article 67 (inter se agreements). TheCommission has also left open the question of what itmeans by "contracting States", a term used in a numberof articles in part I to refer to States having rights assignatories, or endorsers of the text and, in particular,in article 29 setting out the functions of depositaries.On the other hand, in re-examining article 40 at theMonaco session the Commission showed no enthusiasmfor retaining the provision protecting the right of Stateswhich have participated in drawing up a treaty to avoice in its termination; and the text proposed by theDrafting Committee omitted it.82 The Drafting Com-mittee felt that the provision would unduly complicatethe article and that it covered a somewhat unlikely con-tingency. Since on this point the situation in cases ofamendment is analogous to that obtaining in cases oftermination, the Special Rapporteur does not feel thathe should introduce into the present article a provisionof the kind suggested by the Government of Israel unlessthe Commission expresses itself in favour of such aprovision. In practice, the point would be likely to beimportant only in the case of a treaty which comes intoforce after very few ratifications, acceptances, etc. More-over, in such a case the "parties" would be unlikely toamend the text without consulting the other signatoryStates because to do so would be to risk the continuedrefusal of the latter to become parties and the restrictionof the treaty to a narrow circle of States.

7. There is, however, another question which arisesout of the Government of Israel's point, namely, whether

there is not a lacuna in the article in that it makes noprovision for the amendment of the text before thetreaty has come into force. Clearly, there is such a lacunaand, although proposals to amend the text of a multi-lateral treaty may not be frequent, they may be importantin cases where, as the Government of Israel notes, thedefects in the treaty are the very reason why the necessaryratifications, acceptances, etc., to bring it into force, havenot been forthcoming. If the Commission decides thatthese cases should be covered in the article, two problemsarise. The first is the definition of the States entitled tobe notified and to take part in the decision. Presumably,these should in principle be any States which have"adopted" the text or otherwise endorsed it, e.g. by asubsequent signature, acceptance, etc.; but the matteris complicated by the practice of adopting the texts ofmultilateral treaties by resolution of an internationalorganization when it is not necessarily possible to iden-tify the States which have voted in favour of the text.The Commission has more than once discussed thisquestion without resolving it; indeed, it is involved inthe problem of the definition of "contracting States"mentioned above. The second problem is the effect of anamending agreement concluded before a treaty has comeinto force: does the original text continue in existence forthose States which do not become parties to the amend-ment, or does the amendment substitute a new revisedtext for the original one? The Special Rapporteur believesthat, in principle, the former is the case and that para-graph 2 of the article, as drafted in 1964, applies equallyto an amending agreement concluded before a treatyhas come into force. That an unratified text has a legalstatus of its own and that its signatories (to use a con-venient if inexact expression) have certain rights in thetext as such seems clear, whatever may be the true legalsource of those rights. Accordingly, it would not seempossible for an amending agreement to deprive signatoriesof the original text, not parties to the amendment, oftheir rights under the original text, more especially underits final clauses.

8. The Hungarian Government suggests the addition ofa special rule regarding general multilateral treaties underwhich every State, whether or not a party to the originaltreaty, should be invited to take part in a conferencedealing with the amendment of general multilateraltreaties; and it links this suggestion with its proposal forchanging the text of article 8 (participation in a treaty).The text adopted for paragraph 1 of article 8 in 1962reads: "In the case of a general multilateral treaty, everyState may become a party to the treaty unless it is other-wise provided by the terms of the treaty itself, etc.".The Commission was divided in regard to the substanceof the paragraph in 1962 83 and, when it re-examined thearticle in 1965, it failed to arrive at an agreement andpostponed its decision upon the article.84 But in anyevent that article concerns the right to become a partyto a general multilateral treaty, not the right to participatein the conference which draws it up; and in article 6,which does deal with the adoption of the texts of multi-

80 Ibid., 1962, vol . I I , p . 168.81 Ibid., 1963, vol. II, p. 202.82 Ibid., 1966, vol . I , pa r t I , 841st meeting, pa ra . 58.

83 Ibid., 1962, vol. I , 670th meeting, pa ras . 93-101.84 Ibid., 1965, vol . I , 795th meeting, pa ras . 41-83.

Law of Treaties 85

lateral treaties, the Commission did not prescribe anyspecial rule regarding general multilateral treaties. Inshort, the Commission has treated the convening of Statesto a diplomatic conference for drawing up the text ofany treaty as a political question, and this would seem tobe equally the case with an amending agreement. In thepresent article, the Commission has not thought itappropriate to go beyond recognizing a right for partiesto participate in the drawing up of amendments to multi-lateral treaties which are in force.9. The Government of Israel's point that in para-graph 2(b) it is not sufficient to refer to article 63 and thatcloser co-ordination is required between articles 59-61and articles 65-67 may be doubted. Article 63 alreadygives effect to the essential rule of article 59 that a latertreaty cannot deprive "third States" of their rights underan earlier treaty or modify those rights without theirconsent. It would, it is thought, complicate the articlesunduly and unnecessarily to try to spell out in articles65-67 all the possible implications of articles 59-61. Itseems sufficient to refer to article 63 and to leave the restto the normal operation of articles 59-61 in any set ofcircumstances where any of those articles may be speciallyapplicable.10. Three Governments (Hungary, Netherlands, UnitedStates) express doubts concerning paragraph 3. TheNetherlands Government proposes the deletion of theparagraph but does so on the basis of an interpretationwhich it does not seem to the Special Rapporteur to bepossible to extract from the paragraph. At the sametime it expresses the view that any question of liabilityfor breach of the treaty arising out of the amendmentprocedure will normally be ruled out and that this willbe so even in the case of a party which has dissociateditself from the proposal to amend the treaty. It may bethat in practice amendments will not often be adoptedthe application of which might violate the existing rightsof parties not accepting the amendments. But the possi-bility of such cases can hardly be excluded and it is notedthat the United States Government criticizes the formula-tion of paragraph 3 from the opposite point of view—on the ground that the paragraph goes too far in preclud-ing a State, which has signed but not become a partyto the amending agreement, from complaining of aviolation of its own rights.11. The Hungarian Government, though on differentgrounds, also proposes the deletion of paragraph 3.In the first place, it regards the cases covered by theparagraph as somewhat hypothetical and doubts the needfor the creation of a new rule. The Commission did notenvisage the rule in paragraph 3 as a new rule but ratheras an application of the principle of nemo potest venirecontra factum proprium and as a recognition of what ap-pears to be the common understanding of a situation whichis met with quite often in practice. It is, indeed, even usualthat an amending agreement signed by the great majorityof the parties to the treaty does not come into force for allof them, owing to the failure of some to ratify the newagreement. It appears to be the generally accepted practice—reflected in paragraph 2 of the present article—that theStates which do ratify the amendments may lawfully bringthe amendments intoforceas between themselves (see para-

graph (13) of the Commission's commentary). TheHungarian Government also queries paragraph 3 on theground that it attaches a certain effect to the signatureof a treaty, which it considers to be out of place in thesection dealing with modification. However, just asarticle 17(b) deals with a special effect of signature in thecase of treaties generally, so it would seem to be perfectlyappropriate—if the point arises—to deal in the presentarticle with a special effect of signature in the case ofan amending agreement. The question, it is thought, israther whether the signature of an amending agreementhas special effects and, if so, how these should beformulated.

12. There is, as the Special Rapporteur has observed ona previous occasion, a certain link between paragraph 3of the present article and article 17(b); for an amendingagreement is a treaty and its signature automaticallygives rise to the obligation stated in article 17(Z>). In otherwords, under article 17 a signatory, unless and until itshall have made its intention clear not to become a partyto the amending agreement, is bound to "refrain fromacts calculated to frustrate its object". This would cer-tainly seem normally to preclude a signatory from object-ing to an amending agreement's being put into forceinter se the States which become parties to it. Underlyingarticle 17 is of course the principle nemo potest venirecontra factum proprium, a principle of good faith, and thissame principle underlies paragraph 3 of the presentarticle. But in considering paragraph 3, it is necessaryto keep in mind the specific provision already adoptedregarding signature in article 17(b).

13. Paragraph 3, as at present drafted, may go somewhatbeyond the principle in article 17, and the Special Rap-porteur feels that the criticism of the paragraph by theUnited States Government that it is too strict may havesubstance. Paragraph (13) of the commentary, to whichthe United States Government refers, describes the objectof the provision as being to protect the position of partieswhich in good faith ratify the amending agreement. Itthen adds:

"The provision does not in any other respect affectthe rights of a State which does not accept the amend-ment. The treaty remains in force for it unamendedin its relations with all the original parties, includingthose who have accepted the amendment. It may stillinvoke its rights under the earlier treaty. It is precludedonly from contesting the right of the other parties tobring the amendment into force as between themselves".

The United States Government suggests, however, thatthe present text of paragraph 3 may be open to the inter-pretation that it precludes a State which has signed theamending agreement from objecting, even when itsapplication derogates from the State's rights under theearlier treaty. Whether an application of the amendingagreement which affected the enjoyment of their rightsby the other parties to the treaty or the performance oftheir obligations could properly be said to be merely anapplication as between the parties to the amendingagreement may be a question. But, in the view of theSpecial Rapporteur, it is desirable to formulate para-graph 3 in terms which plainly confine the scope of the


restriction to applications of the amending agreementinter se which do not affect the rights or obligations ofother States. A State which signs or otherwise adoptsthe text of an amending agreement must be presumed tocommit itself to allowing the agreement to come intoforce in conformity with its final clauses, by ratificationor other prescribed procedures, as between the Stateswhich thus become parties to the agreement. But it doesnot commit itself to having the amending agreementapplied to itself, even if it refrains from becoming aparty to such agreement.

14. In the light of the foregoing observations, theSpecial Rapporteur suggests that the article should berevised on the following lines:

1. Unless the treaty otherwise provides, any proposal toamend a multilateral treaty as between all the parties must benotified to every other party which shall have the right to takepart in:

(a) The decision as to the action, if any, to be taken in regardto such proposal;

(6) The conclusion of any agreement for the amendment ofthe treaty.2. Unless the treaty otherwise provides:

(a) An agreement amending a treaty does not bind any partyto the treaty which does not become a party to such agreement;

(b) The effect of the amending agreement is governed byarticle 63.3. If the proposal relates to a multilateral treaty which has

not yet entered into force, it must be notified to every State whichby its signature or otherwise shall have adopted or endorsed thetext. Mutatis mutandis, paragraphs 1 and 2 shall then applywith respect to each such State.

4. A party to the treaty, which by its signature or otherwisehas adopted or endorsed the text of the amending agreementbut without becoming a party thereto, may not object to theapplication of that agreement as between any States which havebecome parties to it.

Article 67.—Agreements to modify multilateral treatiesbetween certain of the parties only


Finland. The Finnish Government does not think thearticle to be in all respects satisfactory. In paragraph l(b),it suggests that the third condition (i.e. not prohibitedby the treaty) could be omitted, pointing out that theCommission concedes in paragraph (2) of its commen-tary that the second and third conditions may to someextent overlap. In paragraph 2, it considers that theStates wishing to amend the treaty inter se should notifyall the other parties, regardless of whether the treatyallows the possibility of inter se arrangements. It alsofeels that the notification should be made as soon asnegotiations are under way. In any event, it considersparagraph 2 defective in that it does not specify thatthe notification should be made "at earliest convenience"or "as soon as possible" upon the conclusion of the interse agreement.

Israel. In commenting upon article 66 and the presentarticle the Government of Israel questions the adequacyof their provisions regarding notice of proposed amend-ments, and it suggests that the question of notice should

form the subject of an independent article—article 65(bis)(see its comments under article 66). So far as the presentarticle is concerned, it observes that notification of theconclusion of an inter se agreement as provided in para-graph 2 may come too late, especially having regard toparagraph l(b) (i), which permits inter se agreementsonly if they do not affect the other parties' enjoymentof their rights or the performance of their obligations.In its view, the other parties must be given an earlyopportunity to consider whether the enjoyment of theirrights or the performance of their obligations is likelyto be affected. In addition, it suggests that paragraph l(q)should read "The possibility of such an agreement isprovided etc."

Netherlands. The Netherlands Government observesthat, under paragraph 2, the notification may be postfactum and that a considerable time may elapse betweenthe conclusion of an inter se agreement and its beingmade known to the other parties. It considers thatnotification should be given in good time. It recognizesthat in many instances it may be virtually impossible tonotify the other States when the proposals for the interse agreement are first tabled. But when the States con-cerned have reached an accord in substance on theproposals, and it is only a matter of making that accorddefinitive by concluding the agreement, it sees nothingto prevent the other parties from being informed at once.Accordingly, it suggests that paragraph 2 should be revisedto read:

"Except in a case falling under paragraph l(a), theintention to conclude any such agreement shall benotified to the other parties to the treaty."Pakistan. The Government of Pakistan, without giving

reasons, expresses the view that the article should bedeleted altogether.

United Kingdom. The United Kingdom Governmentcites paragraphs l(b) (i) and (ii) of the present article asexamples of provisions demonstrating the need to providefor independent adjudication of disputes in the operationof the draft articles.

United States. The United States Government com-ments that the article serves the useful purpose of furtherdeveloping the principle that two or more parties to amultilateral treaty cannot, by a separate treaty, derogatefrom their existing obligations to other parties to themultilateral treaty. It also comments that the article willprovide guidance both to parties contemplating such aspecial treaty and to other parties interested in protectingtheir rights under a multilateral treaty.

Yugoslavia. The Yugoslav Government considers itdesirable that, so far as possible, the consequences whichmay arise in connexion with the modification of treatiesunder article 63, paragraph 5, should be put on the samefooting as those which may arise under article 67, para-graphs l(o) and (b).

Argentine delegation. The Argentine delegation refersto this article as one which has been "wisely worded" 85


Law of Treaties 87

Kenyan delegation. The Kenyan delegation considers thearticle to be very useful since it enables States interestedin maintaining their rights under an existing treaty toprotect them adequately, and also affords a usefulmechanism for parties contemplating a special treaty.86


1. This article seems to have met with general approvalexcept in regard to the requirement of notification dealtwith in paragraph 2. The only substantive proposal madefor amending paragraph 1 is that of the Finnish Govern-ment which proposes the deletion of the third conditionfrom sub-paragraph (b), on the ground that it overlapswith the second condition and may be dispensed with.The Commission, as the Finnish Government notes,was aware of this overlap. But for reasons given in para-graph (2) of its commentary, the Commission consideredit desirable to state both conditions. The Commissionthere said:

"The second and third conditions, it is true, overlapto some extent since an inter se agreement incompatiblewith the objects and purposes of the treaty may besaid to be impliedly prohibited by the treaty. Never-theless, the Commission thought it desirable for thecondition contained in the second condition to bestated separately; and it is always possible that theparties themselves might explicitly forbid any inter semodifications, thus excluding even minor modificationsnot caught by the second condition".

However desirable brevity may be, these reasons seem tothe Special Rapporteur to justify the very small additionto the text involved in the statement of both conditions.The Commission thought it essential that the limitswithin which inter se agreements are permissible shouldbe formulated with all the necessary strictness and clarity.Furthermore, the third condition is really a separate case,since it leaves no room for the subjective questions ofinterpretation which may arise under the other two con-ditions.

2. In addition, a drafting suggestion is made by theGovernment of Israel under which the words "Thepossibility of such agreements, etc." in paragraph \(a)would be changed to "The possibility of such an agree-ment, etc.". This change seems to the Special Rapporteurto be an improvement.

3. Three Governments (Finland, Israel and the Nether-lands) question the adequacy of the provisions regardingnotification of inter se agreements in paragraph 2. TheseGovernments all consider that notification of the conclu-sion of an inter se agreement may come too late to enablethe other parties to protect their interests, should theagreement not fulfil the conditions laid down in thearticle for an admissible inter se arrangement. In 1964,as paragraph (3) of the commentary records, some mem-bers of the Commission shared this view and would havepreferred paragraph 2 to be so worded as to requirenotification of any proposal to conclude an inter se agree-ment. The Commission, however, then felt that timely

notification of the conclusion of the agreement would besufficient. In the light of the comments of the threeGovernments it will, no doubt, wish to re-examine thepoint. While it is desirable to avoid anything which mightinhibit legitimate inter se arrangements, it is also desirablethat the other parties should have a reasonable oppor-tunity of reacting against an arrangement which mayencroach upon their rights before it has crystallized into atreaty in force. The problem, as the Netherlands Govern-ment indicates and as the Special Rapporteur has notedin his observations on the previous article, is to drawthe line between mere discussions and mature proposals.The suggestion of the Netherlands Government is thatparagraph 2 should require the other parties to be notifiedof any intention to conclude an inter se agreement,except in cases where the treaty itself provides for thepossibility of such agreements. This seems to the SpecialRapporteur to meet the case, provided that the notificationindicates the nature of the inter se agreement intended;and it may be desirable to specify that requirement. Asto the Finnish Government's suggestion that the notifi-cation should be required even in the case of agreementscontemplated by the treaty itself, this point merits con-sideration and was indeed considered in 1964. It iscertainly true that even in such cases the proposed inter seagreement might be of a wider scope than that authorizedby the treaty, and not fulfil the conditions laid downin paragraph \{b). But the Commission felt in 1964 that,if the parties had themselves provided for the possibilityof inter se agreement and had not at the same time laiddown any conditions regarding notification, it might begoing too far to add that condition by a provision inthe present articles.

4. The Special Rapporteur accordingly suggests thatparagraph 2 should be revised so as to read as follows:

Except in a case falling under paragraph \(a), the partiesconcerned shall notify the other parties of their intention toconclude any such agreement and of the nature of its provisions.

Article 68.—Modification of a treaty by a subsequenttreaty, by subsequent practice or by customary law


Israel. The Government of Israel finds the word "also"in the opening phrase not to be clear and asks whetherit is intended to refer only to articles 65 and 66 or inaddition to include article 67. Paragraphs (a) and (b) itconsiders to be redundant. Paragraph (a) is, in its view,probably covered by articles 41 and 63, especially thelatter; and paragraph (b) it feels to be indistinguishablein its practical effect from article 69, paragraph 3(6)(interpretation by reference to subsequent practice).

The substance of sub-paragraph (c), on the other hand,it thinks should find an appropriate place in the draftarticles. Recalling Judge Huber's award in the Islandof Palmas case,87 it observes that sub-paragraph (c)represents the "second leg" of the inter-temporal law asenunciated by Judge Huber. Noting that the "first leg"

86 Ibid., 850th meeting, para. 38. 87 Reports of International Arbitral Awards, vol. II, p. 845.


appears in article 69, paragraph \{b), it comments thatthe Commission has not explained why it has reversedthe order of postulating the two branches of the inter-temporal law; and it questions this reversal of the order,more especially when the normal order was maintainedin the original proposals of the Special Rapporteur.Saying that it appreciates that "the distinction betweenthe interpretation of a treaty as a step logically prior toits application, and the modification of a treaty as aconsequence of its re-interpretation through its applica-tion, does exist from a theoretical point of view", itexpresses the view that the practical consequences of thedistinction are so fine that the Commission's treatmentof it is open to question. It suggests that paragraph (c)of the present article should be brought into closerassociation with the "first leg" of the inter-temporal lawin article 69, paragraph \{b) and at the same time begiven a place subsequent to it.

Netherlands. The Netherlands Government states thatit has no comment to make upon the present article.

Pakistan. The Government of Pakistan, without statingreasons, comments that paragraph (c) of the article shouldbe deleted.

Turkey. The Turkish Government notes that in thecommentary on paragraph (c) the Commission appearsto envisage a new general rule of international law butthat this is not fully reflected in the text. Pointing out thatthe expression "general international law" is used inarticle 69, paragraph \{b), it suggests that the differencein terminology may lead to a different meaning's beinggiven to paragraph (c) of the present article. In conse-quence, it proposes that the word "general" should beinserted in paragraph (c)—presumably in between thewords "new" and "rule" (the text of the Turkish commentsays "immediately after the word 'international'", butthis word does not appear in the present article).

United Kingdom. The United Kingdom Governmentdoes not consider that the operation of paragraph (c)would be satisfactory. The exact point of time at whicha new rule of customary law can be said to have emergedis an exceedingly difficult question; and, in its view,treaties ought not to be modified without the consent ofthe parties. Accordingly, it proposes the deletion ofparagraph (c).

United States. Paragraphs (a) and (b) the United StatesGovernment considers to reflect long-standing and widelyaccepted practice. Paragraph (c) also it concedes to be"literally accurate" and "in keeping with the long-recognized principle that treaties are to be applied in thecontext of international law and in accordance with itsevolution". But at the same time it feels that paragraph (c)may lead to serious differences of opinion because ofdiffering views as to what constitutes customary law,and accordingly thinks that it should be omitted, leavingthe principle to be applied "under the norms of inter-national law in general" rather than as a specific provisionin a convention on treaty law.

Yugoslavia. The Yugoslav Government observes thatit is necessary to harmonize the English and French texts

of paragraph (c) with respect to the expressions used forcustomary international law.


1. This article, although not many Governments havecommented upon it, is one which requires close examina-tion by the Commission as to its substance and as to itsrelation to other articles, particularly to articles 63(application of treaties having incompatible provisions),65-67 (modification of a treaty by another treaty) and69 (general rule of interpretation). Its genesis is traceableto a draft article in the Special Rapporteur's third reportwhich set out the three matters mentioned in sub-para-graphs (a), (b) and (c) of the present article as develop-ments subsequent to the conclusion of a treaty whichmight influence its interpretation.88 That article (article 73of the Special Rapporteur's draft) had itself been precededby a proposal in the same report (article 56 of that report)for the inclusion of an article setting out the implicationsof the two branches of the inter-temporal law for theinterpretation and application of treaties. The article onthe inter-temporal law would have provided that: (1) atreaty is to be interpreted in the light of the law in forceat the time when the treaty was concluded; and (2) subjectto the rule in (1), the application of a treaty is to begoverned by the rules of international law in force atthe time when the treaty is applied. However, when thearticle was discussed at the 728th and 729th meetings,the Commission decided to reconsider the problemsinvolved in the inter-temporal law when it examined therules on interpretation of treaties. Taking account ofthe discussion at the 728th and 729th meetings, theSpecial Rapporteur submitted a new article—the above-mentioned article 73—as one of a series of four generalarticles on interpretation of treaties. As a result of thediscussion at the 765th, 766th and 767th meetings, thesearticles underwent considerable rearrangement andamendment. At the same time, it was noted that the threematters in question—a subsequent treaty, a subsequentpractice of the parties in the application of the treaty andthe subsequent emergence of a new rule of customarylaw—may have effects either as elements of interpretationor as elements modifying the operation of a treaty.

2. The outcome was that subsequent agreement andsubsequent practice as elements of interpretation werecovered in article 69, paragraphs 3(a) and (b), whilesubsequent agreement, subsequent practice and the sub-sequent emergence of a new rule of customary law aselements modifying the operation of a treaty were dealtwith in the present article. The problem of the subsequentemergence of a new rule of customary law as an elementof interpretation, to which the Special Rapporteur haddrawn attention, was not covered in either article. Theseare cases where the parties have used legal terms, forexample "bay" or "territorial waters", and the questionis whether they intended it to have a meaning fixed bythe law in force when the treaty was concluded or ameaning which would follow the evolution of the law.


Law of Treaties 89

Article 69, paragraph l(b), provides merely that theterms of a treaty are to be interpreted in the light of thegeneral rules of international law in force at the time ofits conclusion.

3. In addition to the genesis of the present article, theSpecial Rapporteur thinks that the Commission shouldhave in mind the order in which it is likely ultimately toarrange the articles on "modification" and "interpreta-tion" of treaties. He has previously suggested to the Com-mission that the provisions on "interpretation" should beintroduced much earlier in the draft articles and under-stands that view to be widely shared. This is not the placeat which to debate that question, which is already beforethe Drafting Committee. But the Special Rapporteurbelieves it to be highly probable that, in the final arrange-ment of the articles, the provisions on interpretation willprecede those on both the "application" and "modifica-tion" of treaties; and thinks that it may be helpful tomake this assumption in revising the present article.

4. The Government of Israel queries the word "also"in the opening phrase, asking whether it is intended torefer only to articles 65 and 66 or to include article 67.In the opinion of the Special Rapporteur, the objectionto the word "also" which is implicit in this query isjustified, though in fact the word is thought to have beenintended to relate to article 67 more than to the twoprevious articles. Articles 65 and 66 deal with the amend-ment of the treaty as such, while article 67 deals with themodification of its operation as between certain parties;and it is the "modification" motif which is echoed in theword "also". But the real explanation of the word isthought to be simply a hesitation as to precisely how tofit in article 68 into the scheme of the articles and a desireto indicate a link with articles 65-67. In any event, theword is thought to be infelicitous. If the matters coveredby the article really belong to "modification" of treaties,they need no connecting link; it should suffice to statethe rules.

5. The Government of Israel, in effect, also suggeststhat the present article should disappear, sub-paragraphs(a) and (b) being regarded as covered by other articlesand sub-paragraph (c) being transferred to article 69.While the Special Rapporteur feels that the Commissionshould re-examine the question whether article 69 justifiesitself as an article to be included in the section on "Modi-fication of treaties", he will reserve his observations onthis question until after he has considered the commentsof Governments on the three rules stated in the article.

6. Sub-paragraph (a) is endorsed by the United StatesGovernment as reflecting long-standing and widelyaccepted practice, and no Government criticizes its con-tent. The Government of Israel, however, considers itredundant, taking the view that it is "probably coveredby articles 41 and 63, especially the latter". The sub-paragraph appears to the Special Rapporteur to reflectthe Commission's uncertainty in 1964 as to the exactfunction of the present article; for it does little morethan reserve the possibility that the operation of a treatymay be modified by a subsequent treaty, and does notstate the conditions under which this will occur. Theseconditions, as the Government of Israel indicates, are

formulated in article 63. The present sub-paragraph isincomplete since it takes no account of Article 103 ofthe Charter, or of other cases where the relation betweentwo treaties is determined by a special provision in oneof them, or of cases of implied termination. Being incom-plete, it is unsatisfactory even if viewed as a generalreservation of the possibility that the operation of atreaty may be modified by a subsequent treaty concludedbetween the same parties and relating to the same subjectmatter. No doubt this defect could be removed byrewording the text—perhaps with a cross reference toarticle 63. But the Special Rapporteur shares the doubtsof the Government of Israel as to whether there is anyneed to retain sub-paragraph (c), if the rules regardingthe effect of a subsequent treaty are satisfactorily for-mulated in article 63.

7. Sub-paragraph (b) also is endorsed by the UnitedStates Government as reflecting long-standing and widelyaccepted practice, and again no Government has ques-tioned its correctness. The Government of Israel, however,thinks it to be indistinguishable in its practical effectfrom the provision in article 69, paragraph 3(6), and forthat reason redundant. This provision requires that, ininterpreting a treaty, there must be taken into account"any subsequent practice in the application of the treatywhich clearly establishes the understanding of all theparties regarding its interpretation". The Commission,in paragraph (2) of its commentary on the present article,recognized that "the line may sometimes be blurredbetween interpretation and amendment of a treaty throughsubsequent practice". But it concluded that legally theprocesses are quite distinct and should be dealt withseparately.

8. In the case of bilateral treaties, it may be that theeffect of subsequent practice as evidence of a new agree-ment modifying a treaty may be indistinguishable forpractical purposes from subsequent practice as evidenceof an agreement giving an authentic interpretation ofthe treaty. Thus, in the Case concerning the Temple ofPreah Vihear,89 the International Court, although therewas a manifest divergence of the boundary line acceptedby the parties in their subsequent practice from the cri-terion for determining the boundary laid down in thetreaty, regarded the subsequent practice primarily asevidence of an authentic interpretation of the treatysettlement by the parties which must prevail over therelevant treaty clause. If this reasoning may seem some-what artificial when the treaty clause continued to beapplicable according to its ordinary meaning in othersections of the boundary, the case does perhaps showthat for practical purposes it may not be of much momentwhether in bilateral treaties subsequent practice is regardedas having its effect in the context of an interpretation orof a modification of the treaty. Even so, it may be goinga little far to classify all subsequent practice, howevermuch at variance with the plain meaning of the text,as constituting an authentic interpretation rather thana modification of a bilateral treaty. In the other precedentmentioned in paragraph (2) of the commentary—the

88 I.C.J. Reports 1962, pp. 33 and 34.


case concerning an Air Transport Services Agreement—the tribunal found that a bilateral treaty had been modi-fied in a certain respect by the subsequent practice of theparties. M

9. In any event, there remains the problem of multi-lateral treaties and of inter se applications of such treatiesby two parties or by a group. Under article 69, para-graph 3(6), it is only subsequent practice which clearlyestablishes the understanding of all the parties regardingthe meaning of the treaty which is recognized as equivalentto an interpretative agreement and the reason is, ofcourse, that two parties or even a group of parties cannot,by their interpretation of the treaty, bind the other partiesas to its correct interpretation. Sub-paragraph (b) ofthe present article, on the other hand, does not speakof the agreement of "all the parties" but simply of "theparties". Many multilateral treaties operate in practicebilaterally in the relations between each party and eachother party; and it may happen that different partiesapply the treaty in somewhat different ways; or thatsome parties apply the treaty in a way which the othersdo not accept as a correct interpretation of it. Clearly, onthe plane of interpretation, the treaty has only one correctinterpretation. But in practice it may have applicationsbetween particular parties which diverge from the inter-pretation and application of it by the general body ofthe parties. It hardly seems possible to classify such casesunder the head of "interpretation by subsequent practice"without seeming to throw overboard the essential conceptof the integrity of the text of a multilateral treaty. If thisconcept may suffer some qualification through the practiceof reservations, it remains of the highest importance.Accordingly, it is thought that the Commission wasright in 1964 to distinguish between the "interpretation"and the "modification" of a treaty by subsequent practice.

10. In the case of multilateral treaties, the questionwould seem to arise whether it is necessary to distinguishbetween a subsequent practice having the effect of"amending" the treaty generally between the parties, andone "modifying" the operation of the treaty only betweencertain of its parties; in other words, whether the distinc-tion made in articles 66 and 67 between "amending" and"inter se" agreements has also to be made in the presentarticle. If it may be inadvisable to try to carry the parallel-ism between express agreement and agreement evidencedby subsequent conduct too far, it seems desirable for theCommission to consider how far the conditions setout in article 67 may be applicable also to "inter se"modification by subsequent practice. In some multilateraltreaties, for example, the Vienna Convention on Diplo-matic Relations, an application of the treaty whichdifferentiates between one party and another may ipsofacto constitute a violation of the treaty.

11. Sub-paragraph (c) has attracted a number of criti-cisms and its simple deletion is proposed by three Govern-ments. The Government of Pakistan does not indicatethe grounds on which it finds difficulty in the propositionthat the operation of a treaty may be modified by "the


emergence of a new rule of customary law relating tomatters dealt with in the treaty and binding upon allparties". The United Kingdom mentions two groundson which it objects to the inclusion of the sub-paragraph:first, the exact point of time at which a new rule ofcustomary law can be said to have emerged is an exceed-ingly difficult question; and secondly, it does not thinkthat treaties should be modified without the consent ofthe parties. The first of these appears also to be thereason behind the proposal of the United States Govern-ment for omitting the sub-paragraph; for it also saysthat paragraph (c) may lead to serious differences ofopinion because of differing views as to what constitutescustomary law. But -uncertainty as to the rules of custo-mary law does not seem a very cogent objection to theformulation of the rule in sub-paragraph (c) because,whatever its uncertainties, customary law is a phenomenonwhich looms large in international law, and the problemof how it may affect the application of treaties at anygiven time unquestionably exists.

12. The United States Government seems to regardsub-paragraph (c) essentially as an aspect of the inter-temporal law; for it observes that the sub-paragraph isin keeping with "the long-recognized principle that treatiesare to be applied in the context of international law andin accordance with its evolution". The solution whichit proposes is to omit the sub-paragraph and to leavethe principle underlying it to be applied "under thenorms of international law in general" rather than as aprovision of the draft articles. The Government of Israelalso treats the sub-paragraph as concerned with oneaspect of the inter-temporal law. Unlike the UnitedStates Government, it advocates the retention of thesubstance of the sub-paragraph in the draft articles butin the context of interpretation; and it suggests that thesub-paragraph should be transferred to article 69 andfollow closely after paragraph \(b) of that article. Thesecond objection mentioned by the United KingdomGovernment, on the other hand, suggests that its under-standing of sub-paragraph (c) is different from that ofthe United States and Israel Governments; for it seemsto regard the sub-paragraph as dealing rather with therelative priority of treaty and customary norms of inter-national law. It objects to the idea that a new customarynorm should necessarily over-ride a treaty provisionregardless of the will of the parties.

13. Sub-paragraph (c), in the view of the Special Rap-porteur, is ambivalent, reflecting a certain hesitation inthe Commission in 1964 as to the precise motif of thesub-paragraph, namely, as to whether it should deal withthe inter-temporal law or with the relative priority oftreaty and customary norms. If it deals with the inter-temporal law, the Special Rapporteur agrees with theGovernment of Israel that the question of the effect of theevolution of the law on the meaning of a term of a treatyfalls under article 69. If, on the other hand, it deals withthe relation between treaty and customary norms, theobjection of the United Kingdom Government that itdisregards the will of the parties is considered by theSpecial Rapporteur to be well-founded. The very objectof a bilateral treaty or of a treaty between a small group

Law of Treaties 91

of States is not infrequently to set up a special legalregime between the States concerned and sometimes aregime which derogates from the existing customary law.Accordingly, to say that the emergence of a new rule ofcustomary law, binding on the parties as a general rule,is necessarily to modify the particular relations whichthey have set up between them may defeat their intention.Here the Commission is confronted with a problem ofthe priority of legal norms, similar to that dealt with inarticle 63 in regard to successive treaties covering thesame subject matter, but in the different context of therelation between a treaty and a customary norm. If theproblem is to be dealt with at all in the draft articles,the Special Rapporteur feels that the rules may have tobe more closely worked out than they are in sub-para-graph (c) and transferred to the section on the applicationof treaties. At the very least, it would be necessary tomake the end of the sub-paragraph read: "and bindingupon all the parties in their mutual relations".

14. In any event, the Special Rapporteur feels thatarticle 68, as at present constructed, is out of place inthe section on "modification" of treaties. Articles 65-67concern the alteration of the operation of treaties byacts of the parties done in relation to the treaty. Thosearticles may therefore properly be regarded as relatingto the modification of treaties. The same is true of sub-paragraph (b) of the present article, since it concerns thesubsequent practice of the parties in the application ofthe treaty. But sub-paragraphs (a) and (c) concern theimpact on a treaty of acts done outside and not in relationto it.

15. In the light of the foregoing observations, the SpecialRapporteur thinks that the Commission should reconsiderthe whole article; and pending that reconsideration hisown suggestions are necessarily of a very tentative charac-ter. A possible solution, he feels, may be: (1) to removesub-paragraph (a) and regard it as covered by article 63;(2) to omit sub-paragraph (c) and re-examine how thequestion of the inter-temporal law should be dealt within article 69, paragraph 1; and (3) to retain only sub-paragraph (b) in the present article. In that case, it mayperhaps be desirable to expand the rule regarding sub-sequent practice slightly in order to take account of theproblem of "inter se" modification of multilateral treaties,so that the article might read on the following lines :

Modification of a treaty by subsequent practice

The operation of a treaty may be modified by subsequentpractice of the parties in the application of the treaty establishingtheir agreement to an alteration or extension of its provisions.In the case of a multilateral treaty, the rules set out in article 67,paragraph 1, apply to an alteration or extension of its provisionsas between certain of the parties alone.

Article 69.—General rule of interpretationArticle 70.—Further means of interpretationArticle 71.—Terms having a special meaning


Cyprus. While reserving the right to make detailedcomments later, the Government of Cyprus expressesthe view that it might have been preferable to attach

more weight to the principle contained in the maximut res magis valeat quam pereat by its express mention.

Czechoslovakia. The Czechoslovak Government con-siders that the principle that the text must be the startingpoint of interpretation should receive express mentionin the text; and it therefore proposes that article 69,paragraph 1, should be revised so as to read as follows:

"A treaty, whose text is presumed to be the authenticexpression of the intentions of the parties, shall beinterpreted in good faith in accordance with the ordi-nary meaning to be given to each term."

Finland. The Government of Finland considers therules concerning the interpretation of treaties to be bothuseful and appropriate.

Hungary. Noting that the commentary to article 69explains the textual approach adopted by the Commission,the Hungarian Government observes that the text doesnot even mention the intention of the contracting parties.In its view, it is desirable to draft the article more flexiblyand to give expression in it to the notion that it is theintention of the parties which is sought and that theirintention is presumed to be that which appears from thetext.

Mentioning that article 70 refers to preparatory workmerely as a further means of interpretation, the HungarianGovernment expresses the view that this is out of har-mony with article 69, paragraph 3, under which "sub-sequent practice" is stated to be a primary means ofinterpretation. In its view preparatory work done priorto the conclusion of a treaty is of the same importanceas subsequent practice for determining the intention.

Israel. While reserving its freedom of decision whenthe question comes before political organs, the Govern-ment of Israel expresses the view that the draft articlesshould contain provisions concerning interpretation onthe lines of those formulated by the Commission. It alsofeels that those provisions should appear early in thedraft articles. On the substance, it endorses the generalphilosophy of the Commission's treatment of the subjectas expressed in paragraph (9) of the commentary; i.e.the textual approach to interpretation.

Paragraph 2 of article 69 it considers not to be part ofany general rule of interpretation but in reality a definitionwhich, in some respects, completes that of a "treaty"in article 1 and is applicable throughout the draft articles.In its view, the removal of paragraph 2 from article 69would make the general rule of interpretation clearer;and it suggests the transfer of the definition in thatparagraph to article 1. At the same time, it suggests thatthe expression "drawn up" in paragraph 2 may beambiguous since it is capable of meaning a draft instru-ment, whereas the intention is clearly to refer to thefinal text.

If paragraph 2 is removed from article 69 in the manneralready indicated, the Government of Israel suggeststhat the elements comprised in paragraph 3 could bemoved into paragraph 1 to form sub-paragraphs (c)and (d) of that paragraph. In this connexion it statesthat the word "also" in paragraph 3 may cause confusion.Noting that paragraph (13) of the commentary refers to


paragraph 3 as specifying "further authentic elements ofinterpretation", while article 70 is entitled "further meansof interpretation", it expresses the opinion that theappropriate point of departure for the process of inter-pretation is to be found in each one of the four elementsof paragraphs 1 and 3 of article 69. All these, it suggests,stand on an equal footing.

The Government of Israel thinks that the expression"ordinary meaning to be given to each term" in para-graph 1 of article 69 may become a source of confusionto the extent that it seems to leave open the question ofchanges in linguistic usage subsequent to the establish-ment of the treaty text. It cites in this connexion a dictumof the International Court on the United States Nationalsin Morocco case interpreting the word "dispute" byreference to the linguistic usage at the time of the conclu-sion of the treaty. 91

In addition, it warns against formulating the rule asa whole in such a way as would lead to "excessive mole-cularization of the treaty". Here it refers to a dictumof the International Court in the Maritime Safety Com-mittee caze regarding the meaning of the word "elected",in which it emphasized that the meaning of a wordcannot be determined in isolation by reference to itsusual or common meaning and that a word "obtains itsmeaning from the context in which it is used".92 Itsuggests that, leaving aside the question of the time factorpreviously mentioned, this point could be met by revisingthe opening words of article 69 so as to make them read:

"A treaty shall be interpreted in good faith and inaccordance with the ordinary meaning given to thelanguage used in its context."

In that event, the reference to the "context of the treaty"in sub-paragraph (a) would be deleted. At the same timeit suggests that the order of sub-paragraphs (a) and (b)should be reversed.

In sub-paragraph (b) the Government of Israel suggeststhat the text needs adjustment so as to make it clearthat the rules of general international law there referredto are the substantive rules of international law, includingrules of interpretation, and not the rules of interpreta-tion alone.

In addition, the Government of Israel considers that,in view of the proliferation of multilingual versions oftreaties, comparison between two or more authenticversions ought to be mentioned in article 69, since in itsview, such comparison is normal practice in interpreta-tion. It observes that article 73 deals only with the specificproblem of what happens when the comparison disclosesa difference; but that comparison is of a greater impor-tance, for it frequently assists in determining the meaningof the text and the intention of the parties to the treaty.To that extent, in its opinion, comparison forms part ofany general rule of interpretation in the case of multi-lingual treaties.

The Government of Israel further states that if article 69is reconstructed on the lines which it proposes, includingthe transfer of paragraph 2 to article 1, it may be unneces-

911.C.J. Reports 1952, p. 182.92 Ibid., 1960, p . 158.

sary and, indeed, confusing to refer specifically to thepreparatory work of the treaty in article 70.

Finally, it suggests that article 71 should either becombined with article 69 or placed immediately after it.

Netherlands. The Netherlands Government commentsthat, where a treaty refers or appears to refer to conceptsof international law, observance of the rule in para-graph l(b) of article 69 would mean that efforts must bemade to discover the intention of the parties by consi-dering the meaning of these concepts elsewhere in inter-national law and independently of the treaty to be inter-preted. In its view, it is essential that the intention of theparties should be ascertained from the treaty itself underparagraph l(a), and any attempt to discover that inten-tion from international law in general is of secondaryimportance. It thinks the rules in sub-paragraphs (a) and(b) not to be of equal value and that sub-paragraph (b)should not be applied until sub-paragraph (c) has provedineffective. Nor does it agree with the reference in sub-paragraph (b) to "law in force at the time of the conclusionof the treaty". Although this may be the correct criterionin some cases, it is of the opinion that in others legalterms will have to be interpreted according to the law inforce either at the time the dispute arises or at the timeof interpretation. For example, in interpreting the terms"territorial sea" or "open sea", regard must, it considers,be had to changing legal views. The Netherlands Govern-ment favours the total deletion of sub-paragraph \{b)rather than merely the words "in force at the time of itsconclusion". It would be quite enough, it considers, toleave the question of the time element to be determinedon the basis of "good faith". It proposes that paragraph 1should be revised so as to make it read:

"A treaty shall be interpreted in good faith in accord-ance with the ordinary meaning to be given to eachterm in the context of the treaty and in the light of itsobjects and purposes".The Netherlands Government also considers that para-

graph 3{b) of article 69, by requiring the "understandingof all the parties", may rule out or greatly restrict thepossible influence of what is conventional within an inter-national organization. Even if the word "all" is deleted,the clause would still, it thinks, place an undesirable curbon the interpretation procedure and make it unnecessarilyrigid. It suggests that all the words from "which clearly"to "its interpretation" should be deleted from para-graph 3(b). It proposes that the sub-paragraph shouldread simply as follows:

"Any subsequent practice in the application of thetreaty...".

Turkey. The Turkish Government approves of theeffort of the Commission to codify the rules for the inter-pretation of treaties, and is in general accord with theprinciples adopted by the Commission as the basis ofthe rules formulated in the articles.

United Kingdom. The United Kingdom Governmentsupports the Commission's view that the text of a treatymust be presumzd to be the authentic expression of theintentions of the parties. It further expresses its supportfor the Commission's proposal in paragraph 1(6). It

Law of Treaties

also considers the concept of the "context" of a treatyto be a useful one, not only with regard to interpretationbut also with regard to such expressions as "unless thetreaty otherwise provides" and "unless it appears fromthe treaty", found in other articles. At the same time itsuggests that in paragraph 2 of article 69 the words"including its preamble and annexes" should be omittedfrom the definition of the "context of the treaty".

United States. While expressing the view that articles 69-71 appear to serve a useful purpose, the United StatesGovernment suggests that there may be a questionwhether their provisions should be stated as guidelinesrather than as rules; and also a question whether addi-tional means of interpretation should be enumerated. Itfurther assumes that the order in which the means ofinterpretation are given has no significance in determiningthe relative weight to be given to them. At the same time,it questions the apparent primacy given to the ordinarymeaning even when an agreement between the partiesrequires that some terms be given a special or technicalmeaning. It suggests that this possible conflict could beavoided by listing in paragraph 1 six rules of interpre-tation seriatim: (a) ordinary meaning: (b) context; (c)objects and purposes; (d) rules of international law;(e) agreement regarding interpretation; (/) subsequentpractice in interpretation. Paragraph 3 of article 69 wouldthen be eliminated. As to paragraph 2, it feels that if"context" is to be defined, the definition should beimproved; for example, by clarifying whether it includes(a) a unilateral document and (6) a document on whichseveral but not all of the parties to a multilateral instru-ment have agreed.

The United States Government considers that, mutatismutandis, the Commission's formulation of the six rulesis, in general, satisfactory. It feels, however, that inparagraph l(b) of article 69, the reference to "generalinternational law" may add an element of confusion andthat the word "general" should be deleted. Again, inparagraph 3(6), it suggests that the reference to "theunderstanding of all the parties" may be open to theconstruction that some affirmative action is required ofeach and every party. In its view, a course of action byone party not objected to by others may be a substantialguide to interpretation.

Article 70 it thinks may be unduly restrictive withrespect to recourse to preparatory work and other meansof interpretation. It observes that, if a provision seemsclear on its face but a dispute has arisen with respectto its meaning, recourse to other means of interpretationshould not be dependent on the conditions specified in(a) and (fi) of the article. It suggests that recourse tofurther means of interpretation should be permissibleif the rules set forth in article 69 are not sufficient toestablish the correct interpretation.

In article 71 it suggests that the word "conclusively" isunnecessary and may be a source of confusion.

Finally, the United States Government remarks thatfurther study should be given to the relationship of thearticles on interpretation with other articles which have"interpretive overtones", e.g. articles 43 (superveningimpossibility of performance), 44 (fundamental change

of circumstances) and 68 (modification by a subsequenttreaty, subsequent practice or customary law).

Yugoslavia. The Yugoslav Government considers thatthe articles on interpretation require to be made morecomplete. First, it suggests the desirability of a specialprovision for the purpose of excluding the possibility ofdepriving a treaty of its true force and effect by meansof a procedure of interpretation. Secondly, it remarksthat States acceding to a multilateral treaty ordinarilyhave in view only the text itself and not its travaux pre-paratoires; and that this point ought also to be covered.It endorses the Commission's proposal that recourse maybe had to the travaux preparatoires only in the circum-stances envisaged in article 70. Indeed, it thinks that thepoint might be formulated in sharper form, namely,that when the text of a treaty is clear and unambiguousit is inadmissible to refer to the provisional understandingsarrived at in the course of the negotiations. In these cases,it considers that the parties are entitled in good faithto refer only to the agreement definitively adopted.

In addition, the Yugoslav Government considers itnecessary to envisage the case of an international instru-ment produced by several States having different legalsystems and concepts in which the interpretation of theagreement must conform to the legal concepts of all thecontracting parties.

Greek delegation. The Greek delegation does not acceptthat priorities should be established among the variousmeans of interpreting a treaty. In its view, since a treatyis an expression of the common intention of the partiesthe only basic rule of interpretation is to ascertain thatintention by every possible means in every possible way.It remarks that the Permanent Court in its AdvisoryOpinion on the Interpretation of the Convention con-cerning Employment of Women during the Night,93

although it relied upon "the natural meaning of thewords", discovered that meaning by studying the travauxpreparatoires of the convention. In article 69 it wouldprefer to see the expression "word" used rather than"term". Even so, it does not think that "words" alwayshave an ordinary meaning and the intention of the partiesis the only thing that matters. Paragraph \{b), by referringto the rules of general international law in force at thetime of a treaty's conclusion, has the effect, it emphasizes,of excluding so-called evolutionary interpretation. Byway of example, it instances the term "exchange control"in the Articles of Agreement94 of the InternationalMonetary Fund.95

Kenyan delegation. The Kenyan delegation considersthat articles 69-71 represent a reasonable compromiseof conflicting views. At the same time, it underlines that,as the essence of any treaty is the intention of the parties,the goal of any method of interpretation must be to useall intrinsic and external aids to find out what that inten-tion really was.96

98 P.C.I.J., Series A/B, No. 50, 1932.•* United Nations, Treaty Series, vol. 2, No. 20, Art. VIII.86 Official Records of the General Assembly, Twentieth Session,

Sixth Committee, 845th meeting, para. 42.96 Ibid., 850th meeting, para. 40.

94 Yearbook of the International Law Commission, 1966, Vol. K

Syrian delegation. The Syrian delegation says of arti-cle 69, paragraph l(b) that it stipulates advisedly that atreaty is to be interpreted "in the light of the generalrules of international law in force at the time of its con-clusion"; and it adds that it is only in that context thatthe wish of the parties can be validly interpreted.97

Thai delegation. The Thai delegation considers that inarticle 69 the first rule of interpretation should be thatthe terms of the treaty, if clear and precise, are the onlyguide to the intention of the parties. Citing Vattel, itsays that the text should be subject to interpretation onlyif it is ambiguous. As to paragraph 3(b), it is of the opinionthat, although subsequent practice may provide evidenceof facts, it is not conclusive, and cannot be automaticallyapplied but must be invoked by a party. The probativevalue of subsequent practice, it maintains, depends on allthe surrounding circumstances and must be weighed withall other relevant evidence. In its view, subsequent practicemay afford aid in the interpretation of ambiguous provi-sions, but may not be used to frustrate the natural mean-ing of the words or to extend the scope of the originalterms.98


1. It appears from the comments of Governments thatin principle they endorse the attempt of the Commissionto isolate and codify the general principles which consti-tute general rules for the interpretation of treaties. TheUnited States Government, it is true, while it considersarticles 69-71 to serve a useful purpose, and makessuggestions for their improvement, raises a query as towhether their provisions should be stated as "guidelines"rather than as rules. The Special Rapporteur understandsthis query primarily as a caveat against formulating thegeneral principles for the interpretation of treaties insuch a manner as to give them a rigidity which mightdeprive the process of interpretation of the degree offlexibility necessary to it. The Commission was fullyconscious in 1964 of the undesirability—if not impossi-bility—of confining the process of interpretation withinrigid rules, and the provisions of articles 69-71 when readtogether, as they must be, do not appear to constitutea code of rules incompatible with the required degreeof flexibility. No doubt the formulation of those provi-sions and their interrelation with each other can and willbe improved by the Commission in the light of the com-ments of Governments. But if satisfactory texts can befound, it seems desirable than any "principles" foundby the Commission to be "rules" should, so far as seemsadvisable, be formulated as such. In a sense, all "rules"of interpretation have the character of "guidelines" sincetheir application in a particular case depends so muchon the appreciation of the context and the circumstancesof the point to be interpreted. But in the internationalcommunity, where the role of treaty interpretation isso important and where recourse to adjudication dependson the will of the parties, there may be particular valuein codifying as rules such basic principles of interpreta-tion as are found to be generally accepted as law.

07 Ibid., 845th meeting, para. 9.68 Ibid., 850th meeting, para. 17.

2. Governments appear also to endorse, in general,the Commission's view that the elucidation of the meaningof the text should be the starting point of interpretationrather than an investigation ab initio into the intentionsof the parties. One Government (Czechoslovakia) hasindeed suggested that this concept should receive expressmention in article 69 in the form of a presumption:"A treaty, whose text is presumed to be the authenticexpression of the intentions of the parties, shall be inter-preted, etc." On the other hand, another Government(Hungary) would prefer expression to be given to thenotion that it is the intention of the parties which is soughtin interpretation and that "their intention is presumed tobe that which appears from the text". Whichever way thepresumption is framed, its introduction into the articlewould seem to have disadvantages. The presumptionsuggested by the Czechoslovak Government is closelyin line with the concept of interpretation expressed inthe article. But the statement of the presumption may tendto raise the question how far the presumption is rebuttableand what precisely is the relation between the presump-tion and other elements of interpretation mentioned inarticles 69-71. In other words, it may slightly tend toincrease the rigidity of the rule formulated in the articles.The presumption suggested by the Hungarian Govern-ment, while open to the same objection, tends to presentthe intention of the parties rather than the text as thestarting point of interpretation and thus to diverge some-what from the Commission's approach to the rules ofinterpretation. (See also this Government's suggestionthat preparatory work should be given the same import-ance as subsequent practice for determining the intentionof the parties.)

3. Two Governments (United States and Israel) makeproposals for the rearrangement of the provisions ofarticles 69 and 71 which, if their explanations of theproposals are different, would give a somewhat similarresult. The United States Government first expressesthe opinion that the order in which the means of inter-pretation are stated ought not to have any significancein determining their relative weight. It then querieswhat it calls the "apparent primacy given to the ordinarymeaning even when an agreement between the partiesrequires that some terms be given a special or technicalmeaning". The validity of this objection may be opento doubt since, if the intention of the parties to give aspecial or technical meaning to terms is clear, thatintention will certainly prevail under the combinedeffect of the rules stated in article 69, paragraphs 1and 3(a), and article 71. But if that intention is not clear,the onus put by article 71 upon the State alleging thespecial or technical meaning to establish the intention toset aside the ordinary meaning would seem to be justified,whether the intention is said to be expressed in the treatyitself or in "an agreement regarding the interpretationof the treaty". Nevertheless, the general point maderegarding the relation between the various rules set outin article 69 remains. This point, the United StatesGovernment suggests, should be met by listing seriatimin article 69, paragraph 1, the following six rules ofinterpretation: (a) ordinary meaning; (b) context;(c) objects and purposes; (d) rules of international law;

Law of Treaties 95

(e) agreement regarding interpretation; and (f) subsequentpractice in interpretation. Paragraph 3 would then, asa separate paragraph, disappear. Under the UnitedStates scheme, article 71, dealing with terms intendedto have a special meaning, would, it seems, remainwhere it is as a distinct article.The Government of Israel, also proposes that the twomatters covered in paragraph 3 of article 69—agreementregarding interpretation and subsequent practice—shouldbe moved up into paragraph 1. At the same time itunderlines that, in its view, "the appropriate point ofdeparture for the process of interpretation is to be foundin each one of the four elements of paragraphs 1 and 3";and it considers each of these elements to stand on anequal footing. If "ordinary meaning" is added from theopening phrase of article 69 and the elements of "context"and "objects and purposes" combined in paragraph l(a)are separated, the four elements of the Israel proposalbecome the six elements of the United States proposal.The two proposals differ, however, in that the UnitedStates Government suggests that "ordinary meaning"should be removed from its governing position in theopening phrase and placed alongside the other elements,whereas the Government of Israel assumes that the"ordinary meaning" will retain its position in the openingphrase. The United States Government does not indicatevery clearly how it relates the "ordinary meaning" to the"context", to "objects and purposes" or to "rules ofinternational law".

The Government of Israel it should be added, proposesthat article 71 (intention to give a special meaning)should either be moved up into article 69 or placedimmediately after it.

4. Leaving aside the question of the "ordinary meaning",the Commission did not, it is believed, intend in 1964to establish any positive hierarchy for the applicationof the means of interpretation mentioned in the foursub-paragraphs of paragraphs 1 and 3 of article 69.It headed the article "General rule of interpretation",in the singular, and it regarded the application of themeans of interpretation set out in the article as a combinedoperation. All the various elements, so far as they arepresent in any given case, would be thrown into thecrucible and their interaction would then give the legallyrelevant interpretation. The problem is perhaps reminis-cent of the so-called sources of international law listedin Article 38 of the Statute of the International Court.In the nature of things the various elements have to bearranged in some order, and considerations of logiclead the mind to find one arrangement more satisfyingthan another. Then, no matter how general or neutralthe formulation, alert minds may see in the arrangementchosen a basis for deducing a hierarchical order for theapplication of the norms. Although he doubts whetherthe change affects the legal position very much, theSpecial Rapporteur suggests that it may be advisable tomove the contents of paragraph 3 up into paragraph 1in order to emphasize the unity of the process ofinterpretation under the "general rule" laid down inarticle 69 and to minimize the significance of the orderin which the various elements make their appearance

in the article. Paragraph 2, if retained, can then readilyenough follow the enlarged paragraph 1.

5. The United States proposal to detach the "ordinarymeaning" rule from the opening phrase and make it thefirst of six rules involves a point of presentation which mayalso be one of substance. In 1964 the Commission tookthe view that the "ordinary meaning" of terms cannotproperly be determined without reference to their contextand to the objects and purposes of the treaty and to anyrelevant rules of international law. Indeed, some memberseven thought article 71 to be unnecessary on the groundthat, in its context, the technical or special meaningof terms will appear as their ordinary meaning. But, ifparagraph 1 of article 69 is revised, as the United StatesGovernment suggests, so as to read:

"The terms of a treaty shall be interpreted in goodfaith:(a) in accordance with their ordinary meaning;(b) in the context of the treaty;(c) in the light of the objects and purposes of the treaty

etc.",the article will seem to recognize that terms have anordinary meaning which is independent of their contextand of the objects and purposes of the treaty. Thismay be true as a matter of pure linguistics but it may bedoubted whether it is true as a matter of interpretation.As the precedents cited in paragraph (10) of the commen-tary illustrate, the "ordinary meaning of terms" isalways in international jurisprudence associated with the"context".

6. At the same time, it is necessary to consider theUnited States observation that, in the present text ofarticle 69, there may be a certain appearance of conflictbetween the primacy given to the ordinary meaning andthe rule in paragraph 3(a) concerning "an agreementbetween the parties regarding the interpretation of thetreaty". This observation does not perhaps give fullweight to the opening phrase of paragraph 3: "There shallalso be taken into account, together with the context:(a) any agreement between the parties etc." These wordswere intended by the Commission to put such interpre-tative agreements on the same level as the "context" andto indicate that an interpretative agreement is to betaken into account as if it were part of the treaty. Itseems that the force of these words may have beenobscured by the intervention of the definition of "context"between paragraphs 1 and 3; but this would be remediedif the contents of paragraph 3 are moved up into para-graph 1.

7. The Government of Israel makes two criticisms ofthe expression "ordinary meaning to be given to eachterm", found at the beginning of article 69. First, itsuggests that the expression may become a source ofconfusion by leaving open the question of changes inlinguistic usage subsequent to the establishment of thetreaty text; and it refers in this connexion to a dictumin the United States Nationals in Morocco case regardingthe need to interpret the word "dispute" by reference tothe meaning which it had at the time of the conclusion

Yearbook of the International Law Commission, 1966, Vol. II

of the treaty." Attention was drawn to this point bySir G. Fitzmaurice in an article where he referred to itas the "principle of contemporaneity" and by theSpecial Rapporteur in his third report. 10° The Commissionregarded the point as simply an aspect of the inter-temporal law and did not seek to spell out a separaterule of "inter-temporal linguistics". This view is believedby the Special Rapporteur to be correct; and he sharesthe view of the Netherlands Government that at rootthe application of the inter-temporal law to interpre-tation is a matter of good faith. He also feels that therequirement that a treaty should be interpreted byreference to the linguistic usage current at the time of itsconclusion is really one both of common sense and goodfaith, and is also implicit in the rule that the meaningof terms is to be determined by reference to the context ofthe treaty and to its objects and purposes. This is notto belie the practical importance of the inter-temporallaw, but it may unduly complicate matters to introduceas a separate principle in the present article the conceptof "inter-temporal" linguistics. Moreover, as the SpecialRapporteur pointed out in his third report101 the rulecannot be formulated in the simple form in which it isstated by Sir G. Fitzmaurice and by the Court in theUnited States Nationals in Morocco case; for the contentof a word, e.g. "bay" or "territorial waters", may changewith the evolution of the law if the parties used it in thetreaty as a general concept and not as a word of fixedcontent. Indeed, one Government questioned the advisa-bility even of dealing with the inter-temporal law in thepresent article (see paragraph 11 below).

8. The second criticism is that the words as formulated—"ordinary meaning to be given to each term"—maylead to "excessive molecularization of the treaty"; andin this connexion the Government of Israel refers to adictum of the International Court that a "word obtains itsmeaning from the context in which it is used". 102

It proposes that the opening phrase of article 69 should berevised to read: "A treaty shall be interpreted in goodfaith and in accordance with the ordinary meaning of thelanguage used in its context" and that the word "context"should then be deleted from sub-paragraph (a). TheSpecial Rapporteur doubts the force of this criticism,even although he may still prefer his original formulation"ordinary meaning to be given to each term in its contextin the treaty and in the context of the treaty as a whole".The existing text relates the meaning of each term to"the context of the treaty" and to "its objects andpurposes", which seems sufficient to discourage "excessivemolecularization" of the treaty. And a simpler expedientto meet the point would seem to be to change "eachterm" to "its terms". Nor does the phrase "languageused hi its context" seem felicitous. Terms—"termes" inFrench—is the word whose use is hallowed in this con-nexion and it seems natural to employ it in article 69.

9 9 1.C.J . Reports 1952, p . 189.100 Yearbook of the International Law Commission, 1964, vol. II,

pp. 55-57.101 Ibid., pp. 9 and 10.102 Constitution of the Maritime Safety Committee of the Inter-

Governmental Maritime Consultative Organization, Advisory Opin-ion of 8 June 1960,1.CJ. Reports 1960, p. 158.

True, it has the disadvantage of having two senses:"term" in the linguistic sense and "term" in the legalsense of "provision". But the two senses are concordantand the rule is meaningful and valid for both. Otherwise, itwould seem preferable to adopt the Greek Government'ssuggestion and to speak of the "words" of the treaty.

9. Paragraph \{b) has attracted comments from anumber of governments. The United Kingdom andSyrian Governments express their support of the ruleformulated in this sub-paragraph. The United StatesGovernment also supports the rule, merely suggestingthat the word "general" should be deleted from thephrase "general international law", as it feels that this wordmay add an element of confusion. The NetherlandsGovernment, on the other hand, takes exception to thesub-paragraph and advocates its total deletion. In itsview, the sub-paragraph would require that, wherevera treaty appears to refer to a concept of internationallaw, an effort should be made to determine the intentionof the parties by considering the meaning of those conceptselsewhere in international law and independently of thetreaty. It considers that the principle regarding contextand objects and purposes in sub-paragraph (a) does notpossess the same value as the principle regarding rulesof international law in sub-paragraph (b); and thatrecourse should only be had to the latter when theapplication of sub-paragraph (a) has proved ineffective.The Government of Israel, on the other hand, suggeststhat sub-paragraph (b) should be placed before sub-paragraph (a) (which, in its view, should contain areference to "objects and purposes"). This Governmentat the same time suggests that sub-paragraph (b) shouldbe revised so as to make it clear that the expression"rules of general international law" denotes the sub-stantive rules of international law, including rules ofinterpretation, and not the rules of interpretation alone.The Special Rapporteur thinks that it may be convenientif he examines the foregoing comments on paragraph l{b)before turning to the other comments dealing with thequestion of the inter-temporal law.

10. The objection taken by the Netherlands Governmentto sub-paragraph (b) does not seem to the Special Rap-porteur to carry conviction; for it involves interpretingthe sub-paragraph in a manner which could hardly bejustified as an interpretation in good faith. Certainly, itis a manner of interpreting the reference to rules of inter-national law which has not occurred to any other Govern-ment and which did not occur to members of the Commis-sion in 1964 or to members of the Institute of Interna-tional Law in 1956 when they adopted the resolution onthe interpretation of treaties mentioned in the SpecialRapporteur's third report.103 Paragraph 1 has to be readas a whole and, when this is done, it does little more thansay that the terms of a treaty have to be interpreted inthe light of the fact that it is an instrument concludedunder the international legal order existing at the time ofits conclusion.Indeed, the Government of Israel's proposal for thereversal of the order of the sub-paragraphs goes in the

p. 55.Yearbook of the International Law Commission, 1964, vol. II,

Law of Treaties 97

opposite direction from that of the Netherlands Govern-ment, since it would, if anything, give more prominenceto the rules of international law. No reason is given forthis proposal, and the advantage of it is not apparent tothe Special Rapporteur. On the contrary, he sees everyreason for not separating the "context of the treaty" fromthe "objects and purposes" of the treaty, in the formula-tion of article 69. In his view, both are aspects of the"context of the treaty" and although, as already stated,he himself might have preferred a slightly different for-mulation of the element of "context", he does not favourthis proposal of the Government of Israel. Nor does hefind convincing its other suggestion that the text needsrevision so as to make it clear that "the general rules ofinternational law" cover the substantive rules of inter-national law. Unless the Commission can rely on wordsbeing interpreted in good faith according to their ordinarymeaning in their context, its drafts may have to becomemuch more complicated than they now are. There remainsthe United States proposal for the deletion of the word"general". Its comment that this word may introduce anelement of confusion is considered to be justified. Indeed,the Special Rapporteur doubts whether the Commissionever decided to include the word in the text. At its 770thmeeting he introduced a final draft which spoke onlyof "the rules of international law". A proposal was madeby one member of the Commission to introduce the word"general" into the text; and a discussion then ensued asto whether the phrase should be "rules" or "principles"of international law. But the record104 does not indicatethat any vote was taken on the proposal to include theword "general"; while the trend of the discussion wasagainst it.

11. Three Governments question the adequacy of para-graph l(b) in regard to the inter-temporal element. TheGovernment of Israel, in its comments on article 68,sub-paragraph (c) (Modification of a treaty by theemergence of a new rule of customary law), proposesthe transfer of the contents of that sub-paragraph toarticle 69. It considers that the question raised by theemergence of a new customary rule is primarily the impactof the new rule on the interpretation of the treaty underthe second branch of the inter-temporal law mentionedby Judge Huber in the Island ofPalmas case. The Nether-lands Government, for its part, questions the words "inforce at the time of the conclusion of the treaty" in para-graph \{b) of article 69, observing that in some caseslegal terms may have to be interpreted according to thelaw in force at the time of their interpretation. It suggeststhat the time element in interpretation should be left to"good faith". The Greek Government also questions thewords "in force at the time of the conclusion of thetreaty" as having the effect of excluding "evolutionaryinterpretation" of treaties.

12. The Special Rapporteur, in his comments on arti-cle 68, has suggested that the rule regarding the emergenceof a new rule of customary law should be removed fromarticle 68, since it does not seem to be a case of "modifica-tion of treaties" in the same sense as the cases dealt with

in articles 65-67. He has also pointed out that the emer-gence of a new rule of customary law has two aspects:(1) its impact on the interpretation of terms and (2) itspossible impact on the application of the treaty by settingup a customary legal norm, i.e. by raising a question ofthe relative priority of the treaty and the customarynorm. The present arrangement under which the "inter-pretative" aspect is half dealt with in article 69 and the"application" aspect is incompletely covered in article 68under the head of "modification", does not seem justi-fiable. The Commission, it is thought, has to decide, first,whether it is going to cover the inter-temporal elementat all in the draft article and, secondly, if it is to do so,how the rules regarding its two aspects can be formulatedin a manner to render them complete or at any rate notmisleading.

13. Paragraph l(b), as at present drafted, is incompletein that it may be open to the interpretation that it nega-tives the possibility that a term may ever change itscontent with the evolution of international law. Thechoice before the Commission, it is thought, is either tospell out in article 69 the second branch of the inter-temporal law which recognizes that such a change mayoccur in certain cases, or else to adopt the point of viewof the Netherlands Government that the temporal elementin interpretation is implicit in interpretation in good faith.The second branch of the inter-temporal law, as theSpecial Rapporteur pointed out in his third report,105

cannot be altogether divorced from the intention of theparties at the time of the conclusion of the treaty. Thus,in the North Atlantic Coast Fisheries arbitration106 it washeld that the word "bay" in the Treaty of Ghent of 1818had been intended to denote a bay in the popular ratherthan legal sense. Even when a term, e.g. "bay", "terri-torial waters", "continental shelf", is used in its legalsense, a question may arise whether the parties had aparticular concept of the term in mind and intended tofix their rights definitively in the treaty by reference tothat concept, or whether they intended the term to begiven whatever meaning it might from time to timepossess under international law. Accordingly, if the secondbranch is incorporated in article 69, its formulation willrequire close attention. In 1964, the Commission did notshow itself very receptive to the idea of dealing with bothbranches of the inter-temporal law in article 69. If theCommission remains of this mind, the Special Rapporteursuggests that the words "in force at the time of its con-clusion" should be deleted, and that sub-paragraph (b)should refer simply to "the rules of international law",(or to the principles of international law) leaving theapplication of the inter-temporal law to be implied.

14. Paragraph 2 of article 69 is commented on by threeGovernments. The United Kingdom Government con-siders the concept of the "context" of a treaty to be auseful one, both with regard to interpretation and to suchexpressions as "unless it appears from the treaty". Itmerely suggests that the words "including its preambleand annexes" should be omitted from the definition. TheUnited States Government, on the other hand, perhaps

104 Ibid., 1964, vol . I , p p . 316 a n d 317.

105 Ibid., 1964, vol. II, pp. 9 and 10.106 Reports of International Arbitral Awards, vol. XI, p. 196.


indicates a doubt as to the value of the concept when itsuggests that if "context" is to be defined, it should beimproved by clarifying whether it includes (1) a unilateraldocument and (2) a document on which several but notall of the parties to a multilateral instrument have agreed.The Government of Israel considers paragraph 2 not tobe part of any general rule of interpretation but a defi-nition which, in some respects, completes that of a "treaty"in article 1 and is applicable throughout the draft articles.Accordingly, it suggests the transfer of the definition toarticle 1. It also questions the expression "drawn up" asbeing open to the interpretation that it refers to a draftinstrument.

15. The definition of what is comprised in the "contextof the treaty", as the Commission pointed out in para-graph (12) of its commentary, is important not only forthe general application of the rules of interpretation butalso for indicating the scope of such expressions as"unless the treaty otherwise provides", "unless it appearsfrom the treaty", etc. These expressions occur at variousplaces throughout the draft articles, including articles onthe conclusion of treaties which in any arrangement ofthe articles will precede those on interpretation. Thatbeing so, the Government of Israel's suggestion that thedefinition should be transferred to article 1 has a certainattraction. But the Government of Israel does not makeclear whether it has in mind "context of the treaty" asthe term to be defined in article 1, or a further clause"completing" the definition of what the term "treaty"means in the draft articles. In any case, neither of thosesolutions seem viable. Probably, only a further clausecompleting the definition of "treaty" by adding to it theelements in paragraph 2 of article 69 would be veryhelpful in article 1 in connexion with the later interpre-tation of expressions like "it appears from the treaty".But to expand the definition of "treaty" in that way,generally and not thereby for purposes of interpretation,might have unexpected consequences in the sections on"invalidity" and "termination" of treaties. On the otherhand, to define "context of the treaty" in article 1 inde-pendently of the provisions of article 69 might not bevery meaningful. Accordingly, the Special Rapporteurfeels that the better course is to retain the definition of"context" in article 69, but, as already indicated above,to place it at the end of the article and move the contentsof paragraph 3 into paragraph 1.

16. As to the substance of paragraph 2, the SpecialRapporteur sees no objection to the proposal to deletethe words "including the preamble and annexes" whichwere inserted in 1964 only ex abundanti cautela. Thesuggestion of the United States Government that it shouldbe made clear whether the "context" includes (1) a uni-lateral document and (2) a document on which severalbut not all of the parties to a multilateral instrumenthave agreed raises problems both of substance and ofdrafting which the Commission was aware of in 1964but did not find it easy to solve at the sixteenth session.In the Anglo-Iranian Oil Company case107 the Interna-tional Court upheld the relevance of a purely unilateraldeclaration for the interpretation of a unilateral instru-

ment. But it would seem clear on principle that a unilateraldocument cannot be regarded as part of the "context"for the purpose of interpreting a treaty, unless its rele-vance for the interpretation of the treaty or for deter-mining the conditions of the particular State's acceptanceof the treaty is acquiesced in by the other parties. Simi-larly, in the case of a document emanating from a groupof the parties to a multilateral treaty, principle wouldseem to indicate that the relevance of the document inconnexion with the treaty must be acquiesced in by theother parties. Whether a "unilateral" or a "group"document forms part of the context depends on the parti-cular circumstances of each case, and the Special Rappor-teur does not think it advisable that the Commissionshould try to do more than state the essential point ofthe principle—the need for express or implied assent.The Government of Israel's point regarding the expression"drawn up" will no doubt be borne in mind by theDrafting Committee, which in 1964 did not find it easyto arrive at a combination of words in paragraph 2 thatwould be satisfactory -from every point of view.

17. Paragraph 3(6) (subsequent practice) is commentedon by three Governments. The Netherlands Governmentconsiders that to require the "understanding of all theparties" may restrict unduly the influence of what is"conventional" (customary usage?) within an inter-national organization. But even the deletion of the word"all" would, in its view, still be too restrictive; and itproposes that the sub-paragraph should read: "Anysubsequent practice in the application of the treaty". TheUnited States Government, though from a somewhatdifferent point of view, also thinks that the word "all"is too strong, as being open to the construction that someaffirmative action is required by each and every party.In its view, a course of action even by one party notobjected to by others may be a substantial guide to inter-pretation. The Government of Thailand, on the otherhand, questions the inclusion of "subsequent practice"in this paragraph. In its view, although evidence of inten-tion, subsequent practice is never conclusive, has to beweighed against all other relevant evidence, and mayafford aid only in the interpretation of ambiguous pro-visions.

18. The original proposals of the Special Rapporteurin his third report108 mentioned subsequent practiceamong the "other evidence and indications of the inten-tions of the parties" additional to the context. But theCommission decided to differentiate subsequent practiceestablishing the common understanding of all the partiesand to classify this as an authentic interpretation com-parable to an interpretative agreement. At the same time,it said in paragraph (13) of the commentary that thepractice of individual States in the application of a treatymay be taken into account under article 70 as one of thefurther means of interpretation there mentioned. Butit did not refer to subsequent practice eo nomine in thatarticle. The comments of the Netherlands Governmentsuggest that this omission may have led it to read para-graph 3(b) as covering every application of subsequent

107 I.CJ. Reports 1952, p. 105.


Law of Treaties 99

practice. Clearly, to amount to an "authentic interpreta-tion", the practice must be such as to indicate that theinterpretation has received the tacit assent of the partiesgenerally. As to the United States objection that the word"all" may be construed as requiring some affirmativeaction from each and every party, it is doubted whetherthe objection is wholly valid. The word "understanding"was chosen by the Commission instead of "agreement"expressly in order to indicate that the assent of a partyto the interpretation may be inferred from its reactionor absence of reaction to the practice. But although theexisting text of paragraph 3(6) may not be inexact, theSpecial Rapporteur feels that the rigorous terms in whichthe rule is formulated—"clearly establishes", "all theparties"—may perhaps go a little beyond the way inwhich its operation is viewed in practice. He suggeststhat the word "clearly", which is unnecessary, should beomitted and that the paragraph might be reworded onthe following lines:

any subsequent practice in the application of the treaty whichestablishes the common understanding of the meaning of theterms as between the parties generally.

19. In article 70, the chief point which has attractedattention is the Commission's treatment of the questionof "preparatory work" and, having regard to the contro-versial character of this question, the number of Govern-ments which have made comments on it is comparativelysmall. The views of three Governments appear to divergesubstantially from that of the Commission in regard tothe place to be accorded to travaux preparatoires in theprocess of interpretation. The Hungarian Governmentconsiders that preparatory work ought to be given thesame importance as subsequent practice, that is, shouldbe classed as a primary means of interpretation. TheUnited States Government, while not going quite as faras this, considers that article 70, as at present drafted,may be unduly restrictive with respect to recourse topreparatory work and other means of interpretation. Itsview appears to be that, whenever a dispute has arisenregarding the meaning of a treaty, recourse to furthermeans of interpretation should be admissible indepen-dently of whether the conditions specified in sub-para-graphs (a) and (b) are fulfilled; and that the only require-ment to be met should be that application of the rules inarticle 69 have failed to establish the correct interpretation.The Greek Government, considering that the only basicrule of interpretation is to ascertain the intention of theparties by every possible means in every possible way,appears to take the position that recourse to preparatorywork should in every case be automatically admissiblein order to determine that intention. A fourth Govern-ment (Kenya), while stating that articles 69-71 representa reasonable compromise of conflicting views, underlinesthat the goal of any method of interpretation must beto use all intrinsic and external aids to ascertain theintention of the parties. The Yugoslav Government, onthe other hand, would prefer to see the conditions forrecourse to travaux preparatoires stated in even stricterform, namely, that when the text is clear and unambi-guous, recourse to them is inadmissible.

The Government of Israel, without taking a position onthe question of substance, in effect proposes the deletionof the specific reference to preparatory work. It arguesthat, if the definition of "context" is transferred to arti-cle 1 (as it recommends) it may become "unnecessary andindeed confusing" to refer specifically to preparatorywork in article 70.

20. The particular reason given by the Government ofIsrael for omitting any reference to preparatory workdoes not seem convincing. The "context of the treaty",as defined by the Commission, comprises not "drafts"and other preparatory material but separate operativedocuments formally related to the treaty. The Commis-sion's definition of "context"—whether or not this mayneed amendment—does not dispose of the problem oftravaux preparatoires: moreover, the formulation of sucha definition seems to make it more, rather than less,necessary to refer specifically to travaux preparatoires inorder to avoid any risk of its being supposed that therule regarding the "context of the treaty" covers allaspects of travaux preparatoires. The expression "furthermeans of interpretation" is, of course, wide enough tocover travaux preparatoires, but in 1964 the Commissionconsidered it desirable on general grounds to indicatespecifically the rule laid down for travaux preparatoiresin the draft articles.

So far as concerns the substance of the question and theformulation of the rule in article 70, the Special Rappor-teur does not feel that he should make any new proposalin the present report on the basis of the above-mentionedcomments of Governments. The content and drafting ofarticle 70 received close consideration in the Commissionin 1964, when some differences of opinion appearedamong members regarding the precise way in whichrecourse to travaux preparatoires should be related tothe textual approach to interpretation. Some membersfelt that in practice travaux preparatoires play a somewhatmore significant role in interpretation than might perhapsappear from a strict reading of certain pronouncementsof the International Court. The Commission itself saidin paragraph (15) of its commentary that "it would beunrealistic and inappropriate to lay down in the draftarticles that no recourse whatever may be had to extensivemeans of interpretation, such as travaux preparatoires,until after the application of the rules contained inarticle 69 has disclosed no clear or reasonable meaning".Accordingly, the rule which it formulated was carefullybalanced so as to allow recourse to travaux preparatoiresin order to "verify or confirm the meaning resulting fromthe application of article 69", but only to allow it forthe purpose of determining the meaning in cases whereinterpretation according to article 69 leaves the meaningambiguous or obscure, or gives a meaning which ismanifestly absurd or unreasonable. This formulationseemed to the Commission to be about as near as it ispossible to get to reconciling the principle of the primacyof the text, frequently laid down by the Court and adoptedby the Commission, with the frequent and quite normalrecourse to travaux preparatoires without any too niceregard for the question whether the text itself is clear.Moreover, the rule formulated in article 70 is inherently


flexible, since the question whether the text can be saidto be "clear" is in some degree subjective. But this doesnot detract from the importance of stating the rule inorder to furnish the necessary directive for interpretationin good faith on the basis of the text and the travauxpreparatoires; and without such a rule, the cardinalprinciple of the primacy of the text might be undermined.The Commission will wish to re-examine its position inregard to the whole problem of travaux preparatoires atits eighteenth session and in doing so will certainly giveevery attention to the comments of Governments. Butthe Special Rapporteur, as already stated, does not thinkthat these comments should lead him to propose changesin the text to the Commission. He does not, for example,feel that the modification suggested by the United States—that recourse to preparatory work for the purpose ofdetermining the meaning should be admitted wheneverapplication of article 69 has failed to establish the correctinterpretation—would be an improvement on the ruleproposed by the Commission. To make recourse totravaux preparatoires dependent on a determinationwhether the rules in article 69 have given a "correctinterpretation" seems to the Special Rapporteur rather tobeg the question to be solved.

21. The special question of recourse to travaux prepara-toires in the case of multilateral treaties is raised by theYugoslav Government. In its opinion, States accedingto a multilateral treaty ordinarily have in view only thetext itself and not the travaux preparatoires; and it pro-poses that the point should be covered in the article. TheCommission examined this question in 1964 and decidedthat it should not include any special provision regardingthe use of travaux preparatoires in the case of multilateraltreaties. The considerations on which this decision wasbased are set out in paragraph (17) of its commentaryand need not be repeated here. In view of the Commis-sion's previous examination of the point, the SpecialRapporteur does not feel that he should do more thandraw its attention to the proposal of the YugoslavGovernment.

22. Article 71 has been the subject of two comments.The United States Government proposes the deletion ofthe word "conclusively", which it considers to be unneces-sary and a possible source of confusion. The SpecialRapporteur feels that this comment is well-founded andthat the word should be omitted.The Government of Israel suggests that the article shouldeither be combined with article 69, or placed immediatelyafter it. The rule regarding terms used with a specialmeaning contained in article 71 at present seems somewhatdetached from the "general rule"; and its relation to thevarious elements in article 69 and to "further means ofinterpretation" (article 70) is left somewhat in the air.If it is not easy to indicate very precisely the relationbetween article 71 and articles 69 and 70, the SpecialRapporteur believes that it will be an improvement ifthe rule in article 71 is moved up into article 69 as a newparagraph 2. The establishment of a "special meaning"is not one of the purposes for which article 70 admitsrecourse to travaux preparatoires', and unless the "specialmeaning" rule is made part of article 69, means of inter-

pretation necessary to establish a special meaning mayappear to be excluded.23. The Government of Israel further proposes that,having regard to the proliferation of multilingual versionsof treaties, comparison between two or more versionsought to be included in article 69 as an additional prin-cipal means of interpretation; for such comparison is,in its view, normal practice in interpretation. Howeverplausible this proposal may be when stated in these simpleterms, it is not one which the Special Rapporteur feelsthat the Commission should adopt without very carefulconsideration of its implications. The legal relationbetween authentic texts (versions) of a treaty in differentlanguages is a question of some delicacy, as appears fromthe Commission's examination of the matter in para-graphs (5) to (9) of its commentary on articles 72 and 73.The Special Rapporteur fears that the insertion of"comparison of authentic versions" among the generalelements of interpretation contained in article 69, so farfrom being a simple recognition of something done inpractice, might have far-reaching implications by under-mining the security of the individual texts. Each languagehas its own genius, and it is not always possible to expressthe same idea in identical phraseology or syntax in diffe-rent languages. It is one thing to admit interactionbetween two versions when each has been interpreted inaccordance with its own genius and a divergence hasappeared between them or an ambiguity in one of them.But it is another thing to attribute legal value to a com-parison for the purpose of determining the ordinarymeaning of the terms in the context of the treaty; forthis may encourage attempts to transplant concepts ofone language into the interpretation of a text in anotherlanguage with a resultant distortion of the meaning.Nor is it to be forgotten that today many importanttreaties have five authentic versions, or that plurilingualtreaties not infrequently have provisions giving oneversion a certain measure of priority over the other. TheCommission will, no doubt, wish to examine the Govern-ment of Israel's proposal in this connexion; pendingthat examination, the Special Rapporteur confines himselfto the above preliminary observations.

24. Finally, the Special Rapporteur does not overlookthe suggestion of the United States Government thatfurther study should be given to the relationship of thearticles on interpretation to other articles which have"interpretive overtones", e.g. articles 43, 44 and 68.Numerous articles, in fact, have such interpretative over-tones. But, as the bearing of the articles concerning inter-pretation on those other articles is already very muchin the mind of the Commission and of the DraftingCommittee, it suffices for the Special Rapporteur to makethis suggestion.

25. In the light of the foregoing observations and inorder that the Commission may have before it a textshowing the broad result of accepting certain of thesuggestions of Governments for the reformulation of thethree articles, the Special Rapporteur has prepared thefollowing draft illustrating the effect of incorporatingthe contents of paragraph 3 of article 69 and of article 71in paragraph 1 of article 69:

Law of Treaties 101

Article 69

General rule of interpretation

1. A treaty shall be interpreted in good faith in accordancewith the ordinary meaning to be given to its terras in the lightof:

(a) The context of the treaty and its objects and purposes;(Z>) The rules of international law;(c) Any agreement between the parties regarding the inter-pretation of the treaty;(d) Any subsequent practice in the application of the treatywhich establishes the common understanding of the meaningof the terms as between the parties generally.2. Nevertheless, a meaning other than its ordinary meaning

shall be given to a term if it is established that the parties intendedthe term to have that special meaning.

3. The context of the treaty, for the purposes of its interpreta-tion, shall be understood as comprising in addition to the treatyany agreement or instrument related to the treaty which haseither been made by the parties or has been made by some ofthem and assented to by the others as an instrument related tothe treaty.

Article 70

Further means of interpretation

Recourse may be had to further means of interpretation,including the preparatory work of the treaty and the circumstancesof its conclusion, in order to verify or confirm the meaning result-ing from the application of article 69, or to determine the meaningwhen the interpretation according to article 69:

(a) Leaves the meaning ambiguous or obscure; or(b) Leads to a result which is manifestly absurd or unreasonablein the light of the objects and purposes of the treaty.

Article 71 (deleted and contents transferred to article 69 asnew paragraph 2).

Article 72.—Treaties drawn up in two or more languagesArticle 73.—Interpretation of treaties having two or more

texts


Finland. The Government of Finland considers therules in these articles to be both useful and appropriate.

Israel. The Government of Israel defers its generalcomments on these articles until the Secretariat's infor-mation regarding practice in the drafting of multilingualinstruments is available. Meanwhile, it suggests that theword "versions" should be substituted for "texts" through-out article 73, in order to make it more consistent witharticle 72.

Netherlands. The Netherlands Government states thatit has no comment to make on these articles.

United States. In article 72, the United States Govern-ment considers paragraph 1 to state a widely acceptedrule. Paragraph 2{b), on the other hand, it feels to be ofquestionable utility. In its view, when negotiators havean opportunity to examine and react to a version whichthey personally authenticate, there is a basis for consi-dering that they have accepted it as accurate. A provisionthat a version drawn up separately, and with respectto which the negotiators have no opportunity to makesuggestions, shall also be authoritative, would introducea new factor that should not, it maintains, be crystallized

as a part of the law of treaties. If any such non-authenti-cated version is to have authenticity, it considers that itshould be effected by the treaty to which that versionapplies or else by a supplementary agreement between theparties. In consequence, it proposes that sub-paragraph (b)regarding the established rules of an international orga-nization should be deleted.

In article 73, the United States Government questionsthe use of the word "texts", while recognizing that theusage is becoming more frequent. It says that a treaty ismore properly conceived of as a unit, consisting of onetext; and that when the text is expressed in two or moredifferent languages, the several versions are an integralpart of and constitute a single text. The use of the word"texts" seems, in its view, to derogate from the unityof the treaty as a single document. It accordingly suggeststhat the title to article 73 should read:

"Interpretation of treaties drawn up in two or morelanguages".It further suggests that paragraph 1 should be revised toread as follows:

"Each of the language versions in which the text ofa treaty is authenticated is equally authoritative, unlessthe treaty itself provides that, in the event of divergence,a particular language version shall prevail".

This formulation, it says, avoids the use of the word"different" when the emphasis should be upon similarityand equality. And for similar reasons it suggests thatparagraph 2 should be reworded to read as follows:

"2. The terms of a treaty are presumed to have thesame meaning in each of the languages in which thetext is authenticated. Except in the case referred to inparagraph 1, when a comparison between two or morelanguage versions discloses a difference in the expres-sions of a term or concept and any resulting ambiguityor obscurity is not removed by the application ofarticles 69-72, a meaning which so far as possiblereconciles the two or more language versions shall beadopted."

Kenyan delegation. In the view of the Kenyan delega-tion, paragraph 2(b) of article 72 is unnecessary and shouldbe deleted.109

Romanian delegation. In comments covering articles 65,66 and 72, the Romanian delegation also takes exceptionto paragraph 2{b) of article 72.110


1. At its sixteenth session, the Commission requestedthe Secretariat to furnish further information on thepractice of the United Nations in drawing up the textsof multilingual instruments. This information is containedin the Secretariat memorandum "Preparation of Multi-lingual Treaties" which is printed in this volume of theYearbook. The memorandum confirms the informationalready available to the Commission in the Secretariatmemoranda "The Summary of the Practice of the Secre-


110 Ibid., 842nd meeting, para. 16.


tary-General as Depositary of Multilateral Agreements"(ST/Leg/7) and "The Handbook of Final Clauses"(ST/Leg/6). It throws an interesting light on the practicein the preparation of multilingual instruments, includingthe use of "working languages" for the purpose of facili-tating the drafting of the treaty. But it does not appearto the Special Rapporteur to present any such new elementas might require the Commission to modify its approachto the matters covered in articles 72 and 73.

2. A point of terminology is raised by the comments oftwo Governments which question the use of the expres-sion "authentic texts" in article 73. The Government ofIsrael suggests that the word "versions" should be substi-tuted for "texts" throughout article 73 in order to makeit more consistent with article 72. This suggestion isthought to be misconceived since the effect would beto make article 73 inconsistent with article 72, paragraph 2of which differentiates between a mere version and a"text". Nor would it be in accord with the linguisticusage found in practice to speak of "versions" rather than"texts" in articles 72 and 73, as is explained in the nextparagraph.

3. The use of the word "texts" in article 73 is alsoquestioned by the United States Government, which atthe same time concedes that the "usage is becoming morefrequent". It maintains that a treaty is more properlyconceived of as a unit, consisting of one text; and thatthe several language versions are an integral part of andconstitute a single text. In its view, the use of the word"texts" tends to "derogate from the unity of the treatyas a single document". The statement that the use of theword "texts" is "becoming more frequent" is, however, aserious underestimate of the treaty practice in the matter.The general practice has always been and most certainlyis today to speak of authentic "texts" and not authentic"versions" of a treaty. All the precedents mentioned inthe "Handbook of Final Clauses" (pages 164-168 andfootnotes 69 and 70 containing long lists of treaties havingsimilar clauses) speak of "texts" not "versions". Thisusage is also reflected in "The Summary of the Practiceof the Secretary-General as Depositary of MultilateralAgreements" (pages 7 and 8) and in the "Preparation ofMultilingual Treaties". It is, of course, perfectly correctand normal to speak in general terms of different language"versions" of a treaty but, whenever the question of"different language versions" is provided for in a treaty,the practice is almost invariably to refer to "texts", not"versions". Such is the practice found in the Charter itself(Article 111) and in the treaties drawn up within or underthe auspices of the United Nations. (See paragraphs 18,21, 25 and 31 of "Preparation of Multilingual Treaties".)These treaties include all the codifying conventions—andtheir accompanying protocols—which have resulted fromthe work of the Commission and the relevant final clausesof which are all on the following model:

"The original of the present Convention [Protocol],of which the Chinese, English, French, Russian andSpanish texts are equally authentic, etc."

Again, the "model final clauses" used for treaties conclu-ded under the auspices of the Council of Europe m referto the treaty's being "done in French and English, bothtexts being equally authoritative". The modern practiceof the Organization of American States is similar, as isalso that of the States of the Warsaw Treaty.

4. The doctrinal basis of the United States Govern-ment's objection to the word "texts" also appears to theSpecial Rapporteur to be open to question. The conceptof the treaty as a unity, in however many languages itsterms are expressed, is certainly of the highest importanceand is, indeed, the basis of the rules laid down in para-graph 2 of article 73. But it may be doubted whether theprinciple of the unity of the treaty is derogated from byspeaking of "texts" any more than by speaking of "ver-sions". It does not seem to improve matters to speak ofthe text having more than one "version" instead of thetreaty having more than one "text". If recourse is hadto the fiction that the treaty has only one text, the "text"becomes only another name for the treaty and if the textis to be regarded as having more than one "version",precisely the same element of multiplicity is present aswhen the treaty is regarded as having more than one text.Moreover, so far as the English language is concerned,the word "version" is more indicative of difference thanthe word "text", and it may be doubted whether anyadvantage would be gained by introducing the fictionthat a plurilingual treaty has only one text of whichthere may be different "versions". That this concept isa pure fiction seems to the Special Rapporteur to be self-evident; and it is a fiction to which, as already indicated,treaty practice gives no support.

5. A further consideration is that it is desirable todistinguish sharply between language "versions" of atreaty which have the status of an authentic text andthose which do not, even although they may possess acertain "official" character. For example, the EuropeanConvention of Human Rights is authentic in two lan-guages, English and French, but governs the enjoymentof human rights in countries whose languages may beGerman, Greek, Italian, Turkish or a Scandinavianlanguage. In some of these countries it is applicable aslaw, and for internal purposes an official translation inthe local language has been drawn up. The word "version",being a word of entirely general meaning and not a termof art, clearly covers according to its ordinary meaningany such renderings of the treaty in other languages. Itis for this reason that the Commission was careful inparagraph 2 of article 72 to distinguish between "ver-sions" which have expressly been given the status of"authentic texts", and those which have not and thereforeremain mere translations of the treaty into other languages.The existing State practice of referring to authentic"texts" rather than to language versions makes it easierto keep this important distinction clear and sharp.

6. The above observations are not meant to suggestthat the formulation of article 73 is in all respects satis-factory; only that the transfer of the emphasis from

111 See Pratique du Conseil de VEurope en mattere de traitesinteretatiques, annexe, p. 12.

Law of Treaties 103

"texts" to "versions" may not be the appropriate remedy.Before re-examining the drafting of article 73, however,it is necessary to consider the comments of Governmentson article 72.

7. In article 72 three Governments take objection toparagraph 2{b), which makes an exception in the caseof "the established rules of an international organization".The Government of Kenya proposes its deletion, merelyobserving that the sub-paragraph is unnecessary. TheRomanian delegation, which also proposes its deletion,considers that, as in the case of the similar provisions inarticles 65 and 66, the sub-paragraph "opens the way tocontradictions between the desires of States parties totreaties and the rules established by international organi-zations". The third Government, that of the UnitedStates, observes that when negotiators have an oppor-tunity to examine and react to a version which theypersonally authenticate, there is a basis for consideringthat they have accepted it as accurate; but that a provisionthat a version drawn up separately, and with respectto which the negotiators have no opportunity to makesuggestions shall also be authoritative, would introducea new factor that ought not to be crystallized as a partof the law of treaties. It considers that if such a versionis to have authenticity, authentication should be effectedby the treaty or by a supplementary agreement betweenthe parties—in other words, under paragraph 2(a).

8. The objection taken by these Governments to para-graph 2(b) is primarily due, it is thought, to the too-general nature of the exception regarding the rules ofinternational organizations which the sub-paragraphwould create. The point is the same as that which arisesunder a number of other articles and which has beendiscussed by the Special Rapporteur in paragraphs 2 and 3of his observations on article 65. As there noted, theCommission has decided to deal with the problem of therules of international organizations in a general article,which now appears as article 3(bis). Accordingly, quite apartfrom the comments of the three Governments, the Com-mission's decision to cover the matter in article 3(bis)would have called for the deletion of this sub-paragraphfrom article 72.

9. A minor point of drafting arises under paragraph 2(a).As the above-mentioned comment of the United StatesGovernment indicates, the status of an authentic text maybe accorded to a "version" either by a provision in thetreaty or by agreement of the parties. In other articles,the Commission has used a formula spelling out boththese possibilities. In order to be consistent, it wouldtherefore seem desirable to revise paragraph 2(a) toread: "if the treaty so provides or it is so agreed".

10. In article 73 the United States Government, inaddition to querying the use of the word "texts", suggests

that the use of the word "different" in paragraph 1 isundesirable when the emphasis should be upon similarityand equality. The word "different" was not intended bythe Commission to mean more than "several" and theUnited States Government is clearly correct in sayingthat it is not well chosen. If the paragraph is slightlymodified on the lines indicated in paragraph 11 below,this point will be met because no adjective at all will benecessary. In paragraph 2, where the existing text speaksof a "difference in the expression of a term" the UnitedStates Government, in its revised draft, puts "a differencein the expression of a term or concept". The SpecialRapporteur is inclined to suggest that the appropriatecourse may be simply to refer to "a difference in theexpression of the treaty". The phrase "different texts"appears also in this paragraph, but again the word"different" can be easily eliminated by a slight modifica-tion of the drafting.

11. The Special Rapporteur suggests that articles 72and 73 should be amalgamated into a single article offour paragraphs. His reasons are, first, that the rule inparagraph 1 of article 73 is at least as closely connectedwith the rules in article 72 as it is with the rule in para-graph 2 of its own article; and, secondly, that the presen-tation of the rules in a single article may help to avoidany appearance of over-emphasizing the significance ofthe multilingual character of a treaty as an element intreaty interpretation. Certain minor drafting amendmentsalso appear to be desirable and the Special Rapporteursuggests that the whole matter of multilingual treatiesmight be dealt with in a new article 72 formulated on thefollowing lines:

Article 72

Interpretation of treaties drawn up in two or more languages

1. When the text of a treaty has been authenticated in accord-ance with the provisions of article 7 in two or more languages,the text is authoritative in each language, unless the treaty other-wise provides.

2. A version of the treaty drawn up in a language other thanone of those in which the text was authenticated shall also beconsidered as an authentic text and authoritative if the treaty soprovides or the parties so agree.

3. Authentic texts are equally authoritative in each languageunless the treaty provides that, in the event of divergence, aparticular text shall prevail.

4. The terms of the treaty are presumed to have the samemeaning in each authentic text. Except in the case mentioned inparagraph 1, when a comparison of the texts discloses a differencein the expression of the treaty and any resulting ambiguity orobscurity is not removed by the application of article 69-70,112

a meaning which as far as possible reconciles the texts shall beadopted.

112 The reference here to articles 69 and 70 assumes that article71 will become amalgamated with article 69.

Documents

Sixth Report on the law of treaties by Sir Humphrey Waldock, …legal.un.org/ilc/documentation/english/a_cn4_186.pdf · Law of Treaties 51 DOCUMENT A/CN.4/186 and Add.1-7 Sixth Report