Mr. Dobbert was formerly Legal Counsel, Legal Office, FAO.
The author recalls Jean Carroz's contribution to research on the treaty-making capacity of intergovernmental organizations carried out in the early 1950s, when the considerable increase in the number of such organizations had only recently begun and there were many lacunae or uncertainties on this question of growing importance.
The author charts the intricate course of the codification of the law of treaties through the work of the International Law Commission. He refers to the deliberations which led up to the adoption of the 1969 Vienna Convention on the Law of Treaties. After much discussion the scope of this Convention was limited to treaties concluded by or among states. However, as the author stresses, the 1969 Vienna Convention and its travaux préparatoires had a profound influence on the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.
The principal and sometimes controversial areas relevant to the treaty-making capacity of international organizations are analysed in the light of the International Law Commission's discussions and their final outcome which was the 1986 Vienna Convention. As the author demonstrates, the adaptation of the principles embodied in the 1969 Vienna Convention to treaties to which international organizations are parties was not always easy, but he considers that the position of international organizations as regards the modes of concluding treaties is, for all practical purposes, the same as that applicable to states. Moreover, many proposals which were intended to reduce the status of international organizations - as compared to that of states - were not adopted. Finally, the author concludes that the adoption of the 1986 Vienna Convention has strengthened the position of international organizations as regards their treaty-making activities.
The present essay starts by paying tribute to Jean Carroz's early contribution to research on treaty-making capacity of organizations in the United Nations system. Leaving aside subsequent legal literature and materials on the law of international organizations and on earlier conventions concerning the Law of Treaties, the essay attempts to retrace the legislative history of the 1986 "Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations", concentrating on those provisions which are directly related to treaty-making capacity. The closing chapter shows the role accorded to, and assumed by, international organizations in the final negotiation of the Convention and describes the way in which it may become applicable to them. For easy reference, the text of the Convention is reproduced as an Annex.
LEGAL PERSONALITY AND TREATY-MAKING CAPACITY - THEORETICAL ANALYSIS BY JEAN CARROZ
Less than seven years had elapsed since the end of the Second World War when Jean Carroz wrote his thesis on the international legal personality of the United Nations (UN), devoting an extensive last chapter to the Organization's treaty-making capacity.1 Shortly thereafter he published, jointly with a coauthor, a book focusing on the treaty-making capacity of the UN and the Specialized Agencies.2
1 La personnalité juridique internationale de l'Organisation des Nations Unies (Thèse). Faculté de Droit, Université de Paris, 1952. Hereafter cited as "Carroz", except where page references are indicated (between parentheses) in the body of the essay.
2 Carroz, J. & Probst, Y. 1953. Personnalité juridique internationale et capacité de conclure des traités de l'ONU et des institutions spécialisées. Paris. Hereafter cited as "Carroz/Probst".
The immediate post-war period witnessed the establishment not only of the UN, but of an unprecedented number of new international organizations, both regional and worldwide. Among the latter, the most important ones were brought into relationship with the UN as specialized agencies under agreements concluded pursuant to Articles 57 and 63 of the UN Charter,3 while certain pre-existing organizations were partly restructured and, likewise, became specialized agencies.4 Due to political tensions between the major powers and critical situations, including armed hostilities, inter alia in the Near East, the Indian subcontinent and the Far East, the international security system established under the Charter was soon put to perilous tests. In view of all these developments, it is not surprising that international lawyers endeavoured to analyse the novel conditions thus created and to fix or invent landmarks that might help to prevent chaos and to pave the way toward a new cosmos. Legal theory and practice cannot dispense with pre-existing doctrines and precedents but they risk becoming sterile and irrelevant if they fail to encompass new phenomena and developments in a society. The paramount importance of this double perspective in international law finds a perfect illustration in the two books which marked the beginning of Jean Carroz's career.
3 Principal specialized agencies in this category: FAO, Unesco, WHO, IMF, IBRD, ICAO.
4 In particular ILO, ITU, UPU.
Jean Carroz's searching historical analysis reveals that the scope of such rules - however uncertain or rudimentary - as may have been recognized by princes or republics during the Middle Ages in their mutual relations, was much broader than is generally assumed. It is only with the consolidation of nation-states in the sixteenth and seventeenth centuries and with the pivotal role attributed henceforth to the concept of sovereignty, that the characteristics of what later became known as "subject of international law" began to be the exclusive prerogative of states. There is some logic in the fact that certain philosophers and lawyers who most fervently advocated that prerogative, no less fervently defended the absolute power of the sovereign. Passing to theories in the early twentieth century, Carroz shows that the same strict doctrine is maintained by the so-called German school,5 later developed and reinforced by what became known as "Soviet doctrine".6 But the opposite trend, which emerged in France and Italy, is clearly more liberal and anticipates future developments. The most outspoken among these pioneers are probably Scelle and Duguit,7 Fiore and Anzilotti.8 Without going into further details, it is clear that most authors have been grappling with nomenclature and criteria that should be used for recognizing some degree of international personality to entities other than states by characterizing them as "artificial" (Gidel), "fictitious" (Seferiades), "conventional" (Genet) or "subjects" - as against "persons" for states - (Siotto-Pintor).9
5 Represented principally by von Liszt, Schmidt and Scheuner.
6 Quoting extensively from works of Korovin, Pachoukanis, Krylov and others, Carroz characterizes the conception as "retour réactionnaire au droit d'une époque o régnait la mystique de l'Etat-personne ..." (p. 45).
7 A passage from Duguit's "Traité de droit constitutionnel", Paris, 1927, quoted by Carroz (p. 34) seems particularly noteworthy: "Bannissons, une fois pour toutes, ces conceptions surannées de personnalité et de souveraineté de l'Etat qui ont ... toujours et resteront toujours le principe d'une action tyrannique et dictatoriale à l'intérieur et d'une politique agressive et conquérante à l'extérieur".
8 Fiore, Droit international codifié, Paris, 1911; Anzilotti, Droit international public, Paris, 1929.
9 These terms and others, and some conclusions drawn therefrom: Carroz, pp. 54-57.
While the account given by Carroz shows the wide variety and contradictory conclusions of the theories proposed - and even the absurdity of some - he refrains from taking a definite position. However, he expresses the view that the controversy over criteria and classifications and the prevailing tendency of having recourse to extensive analogies, rather than recognizing an existing and growing international practice, have strongly contributed to the reluctance of governments to include in the Covenant of the League of Nations and even in the UN Charter any provisions clearly establishing legal personality and capacity of these organizations (p. 59). After discussing the numerous views of contemporary authors, Carroz concludes (p. 87) that the autonomous rights and obligations of the League and its functions as determined by the Covenant clearly conferred on the League both legal personality and treaty-making power (pp. 72, 87).
In the case of the UN, Carroz illustrates, in the light of a dozen charter provisions, that UN action may be in contrast with the views of individual member states (p. 98 et seq.). Despite the absence of a general provision concerning treaty-making authority, the conclusion of agreements by the UN (or UN organs) is referred to in at least six articles of the Charter. The UN has availed itself extensively of most of these enabling clauses.10 The idea, partly shared by Carroz (pp. 113, 164), that the extent of an international organization's capacity depends on the powers delegated to it by its member states, was fairly common at the time, but has meanwhile been largely abandoned as ill-suited to the context of international law. As Carroz observes, it is often linked to a restrictive interpretation of constitutive instruments of international organizations - and treaties in general - which implies a minimum renunciation of sovereign rights. He points out (p. 129) that this interpretation, based essentially on certain early decisions of the Permanent Court of International Justice (Danube Commission, Wimbledon, Lotus cases), has not been upheld by the International Court of Justice (ICJ), e.g. in the Advisory Opinions on the Reparation of Injuries case and the (first) South-West Africa case.11 Although he agrees with the liberal interpretation given by the Court in the latter case to Article 10 of the Charter conferring powers on the General Assembly, Carroz cautions that the underlying objective of effectiveness in the implementation of treaties may entail the conclusion that "fonction implique capacité" (p. 127). Finally, Carroz points out (pp. 111 et seq.) the teleological approach followed by the ICJ in its Advisory Opinion on the Reparation of Injuries case, which is no doubt a cornerstone in the construction of the Charter and has been regarded as relevant also for other organizations.
10 A notable exception is Article 43: the Security Council has never entered into any agreement based on this provision.
11 Reparation for injuries suffered, ICJ Reports 1949, pp. 174 et seq.; International status of South-West Africa, ICJ Reports 1950, pp. 128 et seq.
In his last chapter, Carroz shows that the reluctance to recognize legal personality was almost equally manifest, at least until 1945, with regard to treaty-making capacity, but that extensive treaty practice of many organizations in recent years resulted in a wide, almost general, acceptance of that capacity (pp. 139 et seq.). If a constituent instrument either provides for treaty-making capacity or specifies or clearly implies that the organization may enter into agreements, the only problem that may arise concerns the extent of the capacity in relation to the organization's functions (p. 142). Where these conditions are not met, it may be necessary to revert to the concept of legal personality, even taking certain risks:
"Ce droit est envisage soit comme une condition, soit comme une conséquence de la personnalité, de sorte qu'il semble à première vue y avoir un cercle vicieux..." (p. 144).
In attempting to avoid the impression of a circular argument, Carroz introduces the distinction between "traités-condition" and "traités-conséquence" which should prove that treaty-making capacity can be established by inductive as well as deductive methods. Whichever method or criterion may be applied, it is clear to him that the UN and the major specialized agencies possess both legal personality and treaty-making authority. As regards the latter, Carroz analyses the Charter provisions on agreements that may be concluded by the UN (pp. 148 et seq.) and also refers to provisions in constituent instruments of certain specialized agencies authorizing the conclusion of agreements.12 He concludes that the competence, including the treaty-making capacity, is determined - expressly or by way of implied powers - by the constituent instrument, and that rules of general international law may be relevant for the form and method of exercising such capacity but can neither increase nor diminish it (pp. 164 et seq.). As we shall see, the far-reaching and long drawn-out codification of the Law of Treaties of International Organizations proceeded along the lines of Jean Carroz's conclusion, although it did broaden the base of "constituent instrument" by using the concept of "rules of the organization".
12 Reference is made to the Constituent Instruments of FAO (Arts. XII, XIII); Unesco (Arts. X, XI); ICAO (Arts. 64, 65); IMF (Art. 10); IBRD (Art. 5.2); WHO (Arts. 69, 70); ITU (Arts. 26, 27); WMO (Arts. 25, 26).
The book by Carroz and Probst need not detain us long. Without being facetious, one might say that its main impact derives from the fact that it was published - while Jean Carroz's thesis was not - and therefore provoked some reactions in legal literature and was also used in the initial stage of the codification of the Law of Treaties by the International Laws Commission (ILC). The first part essentially recapitulates Carroz's previous expose on the history and doctrine of legal personality of international organizations and on the travaux préparatoires relating to the UN; it deals in some more detail with the origin and contents of constituent instruments of certain specialized agencies. In the second part, the treaty-making capacity of the UN and the specialized agencies is illustrated by a number of examples both of constitutional provisions and of emerging treaty practice of these organizations in relation to states and at the inter-agency level. The authors further give a brief account of the passages in the first Report of the Special Rapporteur of the ILC on the Law of Treaties (Brierly) in which it was suggested that the scope of the draft articles should cover agreements concluded by or with international organizations; they also mention opposition to this suggestion among certain members of the ILC.
It would be unfair to criticize Carroz (or Probst) for having placed so much emphasis on problems connected with legal personality and the constitutional basis of treaty-making capacity of international organizations and for having almost completely left aside all those questions that were to preoccupy the ILC for the next two decades, such as conclusion, application, effects, interpretation, validity of treaties and reservations to treaties, all of which are related to treaty-making capacity. They might have recalled that Jenks, as early as 1945, questioned the need to invoke the concept of legal personality of international organizations.13 However, since the most illustrious contemporary scholars wrote extensively about this topic, it could not be discarded or discounted - as Chiu did some twelve years later by putting the simple but reasonable question whether it is "necessary to complicate the development of treaty-making practice of international organizations with a concept which has inspired so luxuriant a literature".14 Nor would it be equitable to maintain that later authors had a clearer perception of legal problems faced by international organizations in their treaty practice; they had the advantage of disposing for their research of an ever-growing volume of documentation reflecting that practice. However, there can be no doubt that Jean Carroz made a valuable contribution to the above-mentioned thinking process and helped to pave the way for the development of treaty-making activities of international organizations.
13 The legal personality of international organizations, 22 Brit. YB of Int'l Law, 267, 269.
14 Chiu, H. 1966. The capacity of international organizations to conclude treaties, and the special legal aspects of treaties so concluded. The Hague.
SETTING THE STAGE FOR CODIFICATION
Before starting to draw up a new instrument to codify the rules that should apply to treaties concluded by or with international organizations, the ILC endeavoured to define its scope. Throughout the 16-year period (1950-66) when the ILC had been engaged in drawing up the articles which were to result in the 1969 Vienna Convention on the Law of Treaties (hereinafter referred to as the 1969 Convention), and even during the two sessions of the Diplomatic Conference in 1968 and 1969, the question whether the Convention should encompass treaties with or between international organizations was a recurrent theme. All four successive Special Rapporteurs15 favoured this solution and actually drafted specific articles to that effect.16 The reaction was mixed, consideration was repeatedly postponed and priority accorded to treaties between states and, in its final report, the ILC discarded that solution, considering "that it would unduly complicate matters and delay drafting of the present articles...".17 Amendments designed to extend the scope of the draft Convention were proposed at the 1968 session and discussed at length before being withdrawn. While Article 3 excluded from the scope of the Convention agreements between states and "other subjects of international law", it provided that this should not affect:
"... (b) the application to them of any rules set forth in the present Convention to which they would be subject under international law independently of this Convention."15 Professor Brierly, Sir Hersch Lauterpacht, Sir Gerald Fitzmaurice and Sir Humphrey Waldock.
16 The texts proposed are reproduced by Hartmann, G. 1975. Capacity of organizations to conclude treaties. In Zemanek, K., ed. Oesterreichische Zeitschrift für öffentliches Recht, Suppl. 1, p. 128.
17 YB 1966, II, p. 177. The historical account given by Professor Paul Reuter in his first Report (YB 1972, II, pp. 177 et seq.) casts some doubt on the explanation as recorded. ("YB" stands for Yearbook of the ILC).
Apparently, this was not enough. The Drafting Committee "... to clarify a point, as appeared to be desired by certain delegations..." added the following paragraph which was approved in plenary without dissenting vote:
"(c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties."
As a consequence, the 1969 Convention would apply to inter-state treaty relations while such relations between states and international organizations were to be governed by rules yet to be determined. It was in vain that FAO had cautioned against any solution whereby a double regime would apply to a single treaty.18 This "makeshift solution", which the Special Rapporteur (Reuter) characterized as a "clever but debatable expedient", could do little harm as long as the 1969 Convention was not in force and the new companion instrument had not been drawn up. Sensing that the time was propitious for corrective action, Reuter proposed a text for draft Article 1 (defining the "scope of the present articles") including the following sentence: "Article 3(c) of the Vienna Convention on the Law of Treaties does not apply to such treaties" [sc. treaties between states and international organizations].19
18 "In our opinion, it would be desirable to avoid a situation in which two different sets of rules would be applied to one and the same international instrument, the choice depending on whether a given problem arising in connection with the instrument concerns relations between states or between states and international organizations." (A/CONF.39/5 (Vol. I) p. 62).
19 Third Report, YB 1974 II, p. 137
During the Commission's deliberations, only two members spoke in favour of the proposed clause, nearly all others opted for postponing consideration which implied (for the time being, anyway) its deletion.20 The debate revealed an underlying apprehension that the ILC might tamper with the legal position accorded to states under the 1969 Convention - a phenomenon that was to recur periodically in subsequent sessions. After it had appeared, during the discussion of draft articles on reservations, that, due to Article 3(c) of the 1969 Convention, a treaty as a whole might be governed alternatively by one or the other convention,21 Reuter made another determined effort, supported by convincing legal argument, to eliminate or attenuate the dual regime. He proposed that a provision be inserted (possibly in the Final Clauses) whereby, for states parties to both conventions, Article 3(c) of the 1969 Convention would not apply to treaties within the scope of the "new" Convention; this solution would be in keeping with the stopgap nature of Article 3(c) and in conformity with the general principles on successive treaties (Art. 30.4(c) of the 1969 Convention).22 Several members showed sympathy, others reserved their position. Although various problems concerning relationship with the 1969 Convention came up on the ILC from time to time, the issue of Article 3(c) remained unsolved.23 It continued to weigh as a mortgage on the entire codification exercise inasmuch as Article 3(c) was frequently invoked by those opposed to assimilating the treatment of international organizations to that of states.
20 YB 1974 I, pp. 124-131. The ILC Report did not even mention the clause.
21 ILC, 1349th and 1350th Meetings. YB 1975 I, pp. 240-248.
22 Fifth Report, YB 1976 II, Pt. 1, pp. et seq. 142.
23 The issue was resuscitated in 1986 during the Vienna Conference, in the form of a proposal for a new article - adopted as Article 73 - which, unfortunately, was the exact opposite of the solution advocated by Reuter: it transposed the substance of Article 3(c) into the new Convention, thereby conferring permanent character on the dual regime.
Certain other questions affecting international organizations were also to some extent prejudged by the definitions laid down in the 1969 Convention.
(a) The term "international organization" had been defined by Article 2.1(i) as meaning "intergovernmental organization". Reuter's proposal to take over this definition with change24 was accepted after some discussion of possible alternatives. In particular, the ILC discarded the suggestion that the scope be limited to the fairly homogeneous category of intergovernmental organizations (hereinafter referred to as "IGOs") within the UN system, in line with the precedent set by the 1975 Convention on the Representation of States in their Relations with International Organizations of a Universal Character (hereinafter referred to as "1975 Convention"), rather than that of the 1969 Convention. Such a narrow definition would, in fact, have excluded a number of important regional organizations that carried out extensive treaty-making activities.
24 Third Report, YB 1974 II, Pt. 1, pp. 142 et seq. The same text is in the 1986 Convention.
(b) Another question was whether the definition should not be broadened to take into account the constantly growing treaty-making activities of certain subsidiary organs, mainly of the UN - e.g. UNICEF, UNDP, UNIDO and WFP. Reuter had already discussed the question in his first and second Reports25 and reached the conclusion that "there was nothing to indicate that there should be a set of rules" to cover this type of agreement which apparently had not given rise to any problems in practice. The ILC considered the question in connection with Articles 2.1(a)(i), 3 and 6, but finally decided that it was not ripe for codification.26
25 YB 1972 II, p.188; YB 1973 II, pp. 85 et seq.
26 cf. YB 1974 II, pp. 294 et seq.
(c) A related problem arose from Article 5 of the 1969 Convention which declared that Convention applicable to constituent instruments and to treaties adopted "within" an organization, "without prejudice to any relevant rules of the Organization". In his third Report, Reuter discarded the inclusion of a parallel provision in the draft, by a single lapidary sentence: "It is obvious that there can be no article in the draft articles similar to Article 5 of the 1969 Convention".27
27 YB 1974 II, Pt. 1, p. 145.
The blank space remained until 1981 when the ILC inserted an identical provision to cover the - admittedly exceptional - contingency of an intergovernmental organization acquiring membership in another IGO or becoming a party to a treaty concluded "within" the latter IGO.28
28 cf. final ILC draft (YB 1982 II, Pt. 2, p. 23), enumerating seven treaties whereby the EEC has acquired membership in international commodity organizations.
The method of codification was outlined by Reuter and quickly accepted by the ILC. The possibility of amending the 1969 Convention or of drafting a protocol thereto was discarded, as also was - at least implicitly - the method of drawing up a semi-autonomous instrument which might have listed the provisions of the 1969 Convention to be applied without a change using a system of cross-references for provisions requiring only minor adaptations. The ILC would take the text of each provision of the 1969 Convention in turn and consider what changes of drafting or substance were needed to adapt it to treaties concluded between states and IGOs or between IGOs. In the numbering of articles, the draft would follow that of the 1969 Convention; additional articles or paragraphs would be marked "bis", "ter", etc. It would resist the temptation of improving on or refining the 1969 Convention, but it foresaw that, in some cases, "new and original provisions are required to deal with problems or situations unknown to treaties between States".29 The method seemed simple enough, but the ILC was to find out quickly that inherent problems and obstacles posed by its members and by governments would occasionally make its application extremely difficult. The idea, announced from the start (though opposed by Reuter and other members), that treaties between states and IGOs should be kept separate from treaties between IGOs,30 was to lead to a confusing proliferation of articles and paragraphs during the first reading - fortunately corrected, to a large extent, due to pressure from within the ILC and from the Sixth Committee of the General Assembly. If the "splitting" of provisions had simply been a drafting technique, it could be disregarded here. However, the underlying purpose was to permit equality between parties only in treaties between IGOs and to provide for differential treatment in state-IGO treaties. In fact, there was a continuing tendency, influenced by what might be termed "conservative doctrine", to draw a sharp distinction between states and IGOs. One of the recurrent themes - with variations - was that states were reluctant to allow IGOs to have a status comparable to states. An IGO was not sovereign and did not possess the full range of powers of a state; it was bound by its constituent instrument, which was an act of will on the part of states, and had no powers beyond those conferred upon it explicitly or by implication in that instrument. Accordingly, it could not possibly be treated on the same footing as a state. Another theme was that, while states enjoyed sovereign equality, IGOs varied considerably in character, each having its own features, thus making it hazardous to try to lay down rules applicable to all IGOs. It is obviously difficult to reconcile these positions with the principle of consensuality which implies that treaties are based essentially on the equality of contracting parties and which should normally entail an assimilation of the treaty situations of IGOs with that of states.31
29 ILC Report, YB 1974 II Pt. 1, pp. 292 et seq.
30 YB 1973 I, p. 189; YB 1974 I, p. 125.
31 It is hardly surprising that, after three years of deliberations, Professor Ago expressed the view that "it would be a mistake to believe that the rules of the Vienna Convention ... could be very easily adapted ... to the situations contemplated in the draft articles under consideration ... at every point, the Commission would have to consider whether the rule taken from the Vienna Convention did not need further adaptation ..." (YB 1975, I, p. 212).
In view of the extensive treaty-making activities of IGOs in many fields32 - both with states and with other IGOs - and their current participation in the drafting and implementation of numerous treaties between states, it was evident from the outset that their cooperation and advice would be indispensable for ensuring the success of codification of the Law of Treaties. The degree and form of cooperation and the range of IGOs to be consulted had to be determined by the competent legislative organs in the light of political and practical considerations. According to an established practice, comments on draft articles for a proposed international instrument are solicited from governments and from the UN Secretariat, the specialized agencies and certain other IGOs; moreover, these organizations were usually invited to attend UN codification conferences in an observer capacity. Both the 1969 Conference and the General Assembly had recommended that the ILC, in studying the question of treaties concluded by or with IGOs, should work "in consultation with the principal international organizations".33 Following this lead, the Special Rapporteur prepared a questionnaire which was addressed to the IGOs concerned under a covering letter from the Secretary-General.34 Suggestions were made by some members at an early stage to the effect that IGOs or their legal advisers be invited to participate as observers in the ILC's deliberations.35 Although the suggestion was brought up again later, the ILC took no concrete action. Judging from observations presented by IGOs on the draft articles which formed the basis of the 1969 Convention, Reuter identified "two contradictory concerns: on the one hand, a strong desire to see the same juridical regime applied to treaties between states and to agreements concluded by organizations and, on the other, the desire to avoid confining the creative freedom of international organizations within rules which would not be fully adapted to their needs".36 This ambivalent attitude may have subsided to some extent but remained noticeable throughout the new codification exercise.37
32 According to the statistical data elaborated by Hartmann, (supra note 16, pp. 155 et seq.), approximately one third of the instruments published in the UN Treaty Series were concluded by or with IGOs. These data do not include the unknown (but probably large) number of agreements which, because of their limited scope and duration, have not been registered or filed and recorded with the UN Secretariat.
33 Resolution relating to Article 1 of the Vienna Convention (Official Records of the Conference, Vol. 1, p. 287); General Assembly Resolution 2501 (XXIV), para. 5.
34 While the questionnaire was published in the Annex to the Special Rapporteur's second Report (YB 1973, II, pp. 93 et seq.), the replies remained confidential, in accordance with an undertaking given in the covering letter. Although Reuter made extensive use of the information received, the precise source was never disclosed.
35 cf. ILC, 1242nd Meeting, SR para. 31; 1243rd Meeting, SR para. 8 (1973).
36 First Report, YB 1972, II, p. 186, with detailed references to comments by FAO, IBRD, ILO and the UN.
37 While supporting the idea that representatives of IGOs "ought to attend some private meetings of the [ILC], at which they would be able to speak freely", the Special Rapporteur pointedly remarked: "The Commission should not be under any illusions: [IGOs] were not favourable to the draft articles, not least because the draft was deliberately aimed at limiting their liberties." (YB 1980, I, p. 63).
Finally, the prominent role played by the Special Rapporteur, Professor Paul Reuter, calls for a few observations. It is, of course, a customary practice for the ILC to start codification work on a new topic by appointing a Special Rapporteur who, in successive reports, analyses problems, provides expert advice during the ILC's deliberations, and tries to find compromise formulae susceptible of achieving a large measure of consensus, and also taking into account comments of governments expressed in the General Assembly or in the form of written observations. While Reuter faithfully followed this tradition,38 his manner of handling the dynamic interplay between giving and receiving guidance exercised a decisive influence on the work of the ILC and on the shape of the final draft. Although he occasionally defended his own views as a member of the ILC, his versatility induced him to draft a series of variants and additional clauses designed to cover all contingencies and to meet the views of his fellow members. Most additional clauses also entailed a deviation from the 1969 Convention, usually accentuating the differential treatment as between states and IGOs. In the concluding phases of the (re-) drafting effort - mainly in the course of the second reading - Reuter, who had always favoured the tendency toward assimilation of IGOs to states, was able to apply his exceptional drafting skills to reduce the gaps between the 1969 Convention and the final draft.39
38 Between 1972 and 1982, Reuter submitted eleven reports, the first three being problem-oriented, the remaining eight containing draft articles and commentaries.
39 Cf. Tribute to the Special Rapporteur by the ILC (YB 1980, I, pp. 292-294).
THE HEART OF THE MATTER: TREATY-MAKING CAPACITY
Pursuant to Article 6 of the 1969 Convention, "Every State possesses capacity to conclude treaties". This lapidary sentence asserts such an obvious fact that it might almost be regarded as redundant. In effect, it is the remnant of a series of more complex versions drawn up and repeatedly revised by the ILC between 1950 and 1966 when it still envisaged that treaties concluded by IGOs would be covered by the proposed Convention. From the extensive and well-documented account of the successive versions, and of the ILC's draft article and of deliberations thereon, which is given in Reuter's first Report,40 one may infer that practically all questions relating to the sources of treaty-making capacity (TMC) exercised by IGOs had been examined: inherent capacity derived from customary law or theories of "objective personality"41 and implied or delegated authority based on constituent instruments or on rules and practices applied by each IGO. After prolonged discussions, the Special Rapporteur in 1965 (Sir Humphrey Waldock) had proposed, and the ILC had accepted, the deletion of the provision on TMC. Although the 1969 Vienna Conference eventually adopted the short version quoted above, the difficulties previously experienced by the ILC may have been in Reuter's mind when he suggested that it might be desirable to refrain from defining the TMC of IGOs in the proposed draft. As evidenced by his detailed expose, he certainly did not try to play down the importance of the issue, but he considered that the "fundamental inequality" characterizing IGOs would make it difficult to find a generally acceptable common denominator and the need for flexibility might be defeated by an attempt to impose uniformity.42 In his second Report, Reuter again reached the conclusion that he could not recommend the insertion of an article on the TMC of IGOs. He admitted, however, "that he has arrived at this decision after much hesitation and ... is prepared ... to follow any guidance which the [ILC] may wish to give to him".43 Sensing that the ILC might not follow his approach, he tentatively put forward two clauses as a basis for discussion. The first, reflecting the concepts of functional capacity and implied powers, had been suggested by Dupuy in a report to the Institute of International Law:
"Unless the constituent instrument provides otherwise, every [IGO] has the capacity to conclude agreements in the exercise of its functions and for the achievement of its purposes".4440 YB 1972 II, pp. 178 et seq.
41 Main protagonist of this theory: Seyersted, F. 1963. Objective personality of intergovernmental organizations - Do their capacities really depend upon the Conventions establishing them?, Copenhagen.
42 YB 1972, II, p. 196.
43 YB 1973, II, p. 83.
44 Dupuy, R.J., 1972. L'application des règles de droit international général des traités aux accords conclus par les organisations internationales, Geneva. (English version given in Reuter's second Report, YB 1973, II, p. 82).
The second clause, derived from a proposal submitted to the ILC by Sir Humphrey Waldock in 1965, was based on the concept of "rules of the organization":
"In the case of international organizations, the capacity to conclude treaties depends on any relevant rule of the organization".4545 YB 1973, II, p. 83.
During the four meetings devoted by the ILC to the discussion of Reuter's second Report,46 special attention was given to TMC. While views differed widely, all members evidently favoured a pragmatic approach and tried to avoid the pitfalls of doctrinal disputes centring on legal personality, which had caused so many obstacles during the previous codification exercise. A few members favoured - for different, even diametrically-opposed reasons - the omission of any provision corresponding to Article 6 of the 1969 Convention, but it was also pointed out that such omission could, per argumentum a contrario, entail the presumption that IGOs did not possess TMC. The formula proposed by Dupuy was opposed by several members as too far-reaching and received little support, although an even more sweeping proposal was made, according to which, for the purposes of the present instrument, IGOs were deemed to have TMC.47 The prevailing opinion tended toward the development of a provision based on the Waldock formula.
46 cf. SRs of 1238th, 1241st to 1243rd Meetings.
47 Quentin-Baxter, SR of 1242nd Meeting, para. 39.
The proposal for Article 6 presented in the third Report was identical to the second text previously suggested by Reuter (quoted above). In his detailed commentary,48 Reuter referred to deliberations of the ILC and of the Sixth Committee, which revealed two principal trends: one in favour of the growing TMC of IGOs, the other "concerned over the need to respect the will of [Member States] ... manifested above all in the constituent instrument of the organization" (para. 4). After analysing the law and practice of some IGOs (especially the UN, IAEA and EEC), Reuter concluded that the purpose of the draft article "must be to point out the fundamental rule of the constitutional autonomy of each organization" (para. 8). From this rule, which also finds support in the ICJ Advisory Opinion on "Certain Expenses of the United Nations ...",49 one may derive the principle of "functional competence of each organization" (para. 10). If this principle is accepted, every IGO must therefore be in a position to have recourse to those methods and means (not expressly precluded by constitutional provisions) which enable it to exercise its functions and fulfil its mandate. Functional competence, while going well beyond the law of treaties, comprises TMC. In the closing part of the commentary (paras. 26-28), the implications of the expression "the relevant rules of each organization" are analysed. First, its basically neutral character: "it imposes nothing but excludes nothing". Second, it covers the practice of each organization, comprising also "practices which are not yet established but liable to become so". The constitutional regime of each IGO is therefore reserved: "It is this regime, not the draft articles, which will determine the scope of this practice". The formulation chosen would also meet the concerns expressed by IGOs, to the effect that (i) progressive development of law and practice of IGOs should not be hampered, and (ii) the constitutional autonomy of each IGO should be respected, in the sense that its competent organs must retain full authority to shape and interpret its rules.
48 YB 1974, II, Pt. 1, pp. 145-152. The commentary consists of 28 paragraphs, hereafter referred to in the text as "para ...".
49 ICJ Reports 1962, p. 157.
At this point, it may be appropriate to bring "the relevant rules of the organization" into sharper focus, not so much because of the interpretation of draft Article 6, as on account of the role which this expression was to play in the drafting of numerous other articles.50 While it had been used but not defined in the 1969 Convention, Reuter already anticipated in his first Report that a definition might become necessary.51 However, it was only in connection with Article 27 that the Drafting Committee proposed a definition in the form of a new Article 2.1(j).52 Following the lead given in a footnote to the commentary relating to Article 27,53 the ILC took over, without discussion, the definition given in Article 1(34) of the 1975 Convention. However, criticisms were voiced in the Sixth Committee and in government and IGO comments. Drafting was considered defective: too casuistic and descriptive and not sufficiently precise, terminology was drawn from UN practice and might be unsuitable for other IGOs and the term "relevant" preceding "rules" was found to be unnecessary and potentially confusing.54 As regards substance, several governments, insisting on priority for the constituent instrument, stressed that it was inadmissible to recognize as "rules" any decisions or practices adopted in violation of such instrument. However, it was also contended that, despite the reassuring commentary of the Special Rapporteur regarding Article 6, the risk of freezing development of practice remained if the word "established" were not deleted. However, The formulation of the text proposed by the ILC was also supported as being based on precedent as well as being sufficiently clear and supple.55 After discussing the above comments, the ILC decided to maintain its own version of Article 2.1(j) in the final draft.56 At the Vienna Conference, several delegations proposed the deletion of "established"57 but refrained from tabling a formal amendment. Strong pleas were made for ensuring priority of the constituent instrument among the "rules"58 and two amendments to that effect were submitted.59 They were reflected in an attenuated form, in the text proposed by the Committee of the Whole,60 which also decided that the word "relevant" preceding "rules" should be deleted throughout the text of the draft Convention. The text was adopted in plenary without a vote.61
50 Clauses tying IGOs to the "rules of the organization" were included in Article 2.2, 5, 6, 7.3, 35, 36.2, 37.3, 65.4. They had been even more numerous in the ILC drafts.
51 YB, 1972 II, p. 198.
52 YB, 1977 I, p. 238.
53 Fourth Report, YB, 1975 II, p. 40, footnote 58.
54 Cf. ILC Report 1981, Annex, pp. 423, 434; document A/CN.4/L.339.
55 Cf. ILC Report 1981, Annex, pp. 456, 440.
56 YB 1982, II, Pt. 2, p. 21. Further observations by governments and IGOs were made, along similar lines, in 1982 and 1983; cf. A/CONF.129/5, pp. 111-113.
57 Austria, Switzerland, UN. Cf. A/CONF.129/C.1/SR.2.
58 German Democratic Republic, Romania, Czechoslovakia, USSR. Ibid., SR.2 and SR.3.
59 One by Eastern European States, one by China (A/CONF.129/C.1/L.2 and L.15)
60 A/CONF.129/C.1/L.74/Add.1. In particular, while the first amendment (1.2) would only recognize legally binding instruments and established practice based on the constituent instrument, the final version maintained the text proposed by the ILC, only qualifying the words "decisions and resolutions" by "adopted in accordance with [constituent instruments]".
Reverting to Article 6, it may be recalled that Reuter would originally have preferred to refrain from including a rule on TMC. In introducing his draft, he stated, however, that the comments of ILC members "showed that draft Article 6 was the most important article".62 Some members regretted the absence of a reference to customary international law: others would have preferred a clause along the lines of the formulation proposed by Dupuy, recognizing the principle of TMC, without referring to the rules of the organization. Most members, however, found Reuter's proposal to be an acceptable compromise between different doctrinal positions in that it relied on the extent, rather than the source, of TMC. What seems remarkable is that no proposal was made to render the text more restrictive. Disparities between the two principal schools of thought became clearly evident during the discussions in the Sixth Committee between 1981 and 1983 and in written comments by governments between 1982 and 1984.63 Apart from these comments, which reflected the views expressed in the ILC, certain new aspects came up, partly due to problems encountered by the UN Conference on the Law of the Sea (UNCLOS) and partly on account of the growing participation of the EEC in multilateral treaty negotiations. The status and powers of the future Sea-bed Authority and Enterprise might pose problems to which Article 6 could not provide adequate answers. In the case of the EEC, attention was drawn to situations where treaties were being concluded on matters falling within the exclusive competence of the EEC and on other matters where competence was shared by the EEC and its member states and where the distribution of responsibilities might vary with time. This was liable to cause confusion. Moreover, where the EEC, side by side with its member states, became a party to a treaty which was the constituent instrument of an IGO, this would not only give rise to problems of plural representation, but also to the question whether such a treaty would fall within the scope of the 1969 Convention or of the proposed new Convention. Obviously, these questions went well beyond the scope and intent of Article 6 - however formulated. This seems to have been recognized by governments prior to the opening of the 1986 Vienna Conference. During the ample discussion on Article 6 in the Committee of the Whole,64 none of the delegations entered into the substance of questions relating to UNCLOS or EEC, and none of the three amendments which were tabled (and subsequently withdrawn) had any bearing on these questions. Accordingly, except for the deletion of the word "relevant", as a consequence of the above-mentioned parallel amendment to Article 2.1(j), Article 6 was adopted in the form proposed by the ILC.
62 YB 1974, I, p. 164. For summary records of deliberations during 1275th and 1277th Meetings of the ILC; ibid., pp. 135 et seq.; 144 et seq.
63 For Sixth Committee debate in 1981, cf. A/CN.4/L.339. Both oral and written observations from 1982 to 1984 are reproduced, article by article, in document A/CONF.129/5.
TESTING TREATY-MAKING CAPACITY - THE CONCLUSION OF TREATIES
The first area where TMC and the principle of consensuality were put to a practical test was Part II, Section 1 (Articles 7-18) of the ILC draft, in conjunction with certain definitions contained in Article 2.1. Some of these definitions, while being relevant to Section 1, relate to terms that are used fairly widely throughout the text, whereas others are closely linked to specific articles in this section. The first group will be discussed separately in the following paragraph, while the definitions belonging to the second group will need to be considered jointly with the substantive provision to which each definition relates.
(a) The definition of "Treaty" proposed and commented by Reuter in his third Report65 corresponds to that contained in Article 2.1 (a) of the 1969 Convention but was adapted to the scope of the new instrument laid down in Article 1. The suggested definition characterized the agreements to be covered, inter alia by specifying that they should be "governed principally by general international law" (emphasis added). The ILC gave sympathetic consideration but little support to these qualifying terms, whereupon Reuter decided to withdraw them.66 The definition approved by the ILC in 197467 was incorporated in the 1986 Convention without any change. The definition in Article 2.1(a) must, of course, be read in conjunction with Article 3 as, under the 1969 Convention, agreements "not in written form" are excluded from the scope of the new instrument, and so are agreements concluded with, or between, subjects of international law other than states and IGOs. To attenuate the adverse effects of such exclusions, a saving clause (similar to that of the 1969 Convention) was built into Article 3, defining the circumstances under which the proposed instrument may be applied to those categories of agreements.
65 YB 1974, II, pp. 138 et seq.
66 ILC, 1275th, 1277th, 1279th Meetings; YB 1974, I, pp. 133 et seq, 144, 162.
67 YB 1974, II, Vol. 1, p. 294. Of course, the Vienna Conference changed, throughout the instrument, the term "present articles" to read "present Convention".
(b) The definition of "Party" proposed and commented in Reuter's fourth Report takes over Article 2.1(g) of the 1969 Convention, relating to "a State" and adds a clause extending it to an organization "when its position is identical to that of a State party".68 The commentary explains this addition by the fact that an IGO may not ipso facto be accorded the status of "party" unless its position in relation to the treaty is in every respect comparable to that of "State parties". This may seem logical and innocuous, but the palpable assimilation of IGOs to states gave rise to an allergic reaction in the ILC.69 The formula proposed by the Drafting Committee,70 which is identical with the final text, has the double advantage of avoiding a specific allusion to equality between states and IGOs and of being closer to the 1969 Convention.
68 YB 1975, II, p. 21.
69 ILC, 1346th Meeting; YB 1975, I, pp. 220 et seq.
70 Ibid., p. 265. cf. Commentary in ILC Report (YB 1975 II, p. 182), stressing, in relation to Article 15, that an IGO as "party" is bound by the treaty itself, not only by the rules laid down therein.
Once the questions of principle regarding TMC had been provisionally settled, Article 7, which was introduced jointly with Article 2.1(c) defining "full powers", was the first major stumbling block. Both provisions had a rather tortuous iter extending over ten years. Only two problems will be examined in the present context: first, the criteria that are applied to the exemption from the production of full powers and, second, the term to be used for designating such powers. The 1969 Convention had introduced, in Article 7, a fairly liberal regime by providing for a general exemption from full powers in favour of specified state dignitaries and diplomatic envoys (para. 2) and by allowing for dispensation of a person if:
"it appears from the practice of the States concerned ... that it was their intention to consider that person as representing the State and to dispense with full powers ..." (para 1(b)).
These criteria were taken over in the text of paragraph 1(b) proposed by Reuter, suitably adapted: both "practice" and "intention" were to be attributed to states as well as IGOs and a parallel provision was proposed for paragraph 3, concerning full powers of IGO representatives.71 There was consensus in the ILC about the desirability of maintaining the liberal regime and (with some reservations) about the proposed "parallel" provision in paragraph 3. However, strong opposition was voiced against the inclusion in sub-paragraph 1(b) of a reference to IGO "practice" and "intention". As regards the latter, some members found it unacceptable that IGOs should be enabled to participate in a decision as to whether a state representative would be required to produce full powers. With respect to IGO "practice", it was argued that it was only in a process of formation and differed from one IGO to the other. On the other hand, the insertion of a reference to IGOs in paragraph 3 (and its omission from sub-paragraph 1(b)) would have created unequal treatment, which other ILC members found unjustifiable.72 The Drafting Committee produced a compromise solution: the reference to "intention" (of negotiating parties) was eliminated and the term "practice" was left bare, without being attributed to states or IGOs.73 Due to an amendment proposed at the Vienna Conference, the expression "intention of the States and international organization concerned" was re-inserted in sub-paragraphs 1(b) and 3(b).74 The only substantive difference that remained from beginning to end was that, in the case of states, the dignitaries and diplomats who would not need to produce full powers were enumerated, while for IGOs no person was to be considered as ipso facto exempt. Although it was pointed out that, based on established practice, executive heads of IGOs should be exempt, no formal proposal was made at the Vienna Conference for amending Article 7 to that effect.75
71 Fourth Report, YB 1975 II, pp. 20 et seq.
72 ILC, 1344th, 1345th meetings; YB 1975, I, pp. 207 et seq. These arguments do not take into account that (i) many IGOs have adopted rules on credentials of government representatives and (ii) practices of individual states are far from uniform.
73 YB 1975, I, pp. 265 et seq.; ILC Report, YB 1975, II, pp. 174 et seq.
74 Proposal by Japan and the United Kingdom, accepted by the Committee of the Whole, cf. A/CONF.129/C.1/L.26 and L.74/Add.2.
75 The UN and the ILO gave a description of their practice: see ILC Report 1981, pp. 454 et seq., 460. Only an oral amendment designed to exempt the "chief administrative officer" from any such requirement was presented at the Vienna Conference, but not adopted (cf. A/CONF.129/C.1/L.74/Add.2, p.5). The reference to the "rules of the organization" in paragraph 3(b) probably implies such exemption.
The longest and most byzantine discussions throughout the codification process relating to Articles 2.1(c) and 7 centred on the question whether certain terms applied to states in the 1969 Convention were also suitable for IGOs.
(a) The term "appropriate full powers" in Article 7.1 (a) of the 1969 Convention was taken over without change in Reuter's draft, for both states and IGOs, as also was the definition in Article 2.1(c), subject to the insertion of a reference to IGOs.76 Sensing the likelihood of some opposition in the ILC, Reuter stressed in the commentary (paragraph 5) that he "would consider it inadvisable to try to tone down the term 'full powers' by using any other expression which would indicate that these powers are not necessarily given in a very solemn form". In fact, one member forcefully asserted that, since full powers were an emanation of the exercise of governmental authority and nothing equivalent existed for IGOs, the best way of resolving the question would be to delete sub-paragraph 3(b) altogether and to find another term for "appropriate full powers" in sub-paragraph 3(a). Several members strongly opposed this view as reflecting an outdated doctrinal position. It was pointed out that contemporary practice of states and IGOs no longer required the presentation of an elaborately formal lettre de cabinet, and that there was no reason for placing restrictions on an IGO in a matter that was governed by its own rules and practice.76 Strangely enough, the Drafting Committee came forward with a revised version of Article 7 which, inter alia, maintained "full powers" exclusively for states while IGOs were to issue only "powers". This was accompanied by a new definition of "powers" (Article 2.1(c) bis). Despite strong opposition by some members who considered the proposed distinction "both unnecessary and confusing" and "entirely artificial", the ILC gave its approval.77
76 ILC, 1344th Meeting; YB 1975 I pp. 209 et seq.; in particular statements by Ushakov, Tsuruoka, Ramangasoavina.
77 ILC, 1353rd Meeting; YB 1975, I., pp. 264 et seq., especially statements by Kearney and Hambro. The reasons given in the ILC Report (YB 1975, II, p. 176, commentary paras. 9-11) are hardly convincing.
(b) While the controversy over (full) powers was essentially limited to Article 7, another terminological aberration permeates many subsequent provisions. In his fourth Report, Reuter took over from the 1969 Convention the phrase "expressing consent to be bound [by a treaty]" and used it for both state and IGO representatives in Articles 7 and 11 to 16; it would recur again, inter alia, in Articles 47, 50 and 51. Although no critical observations were made during the first reading of Article 7, the Drafting Committee, somewhat surprisingly, proposed - and the ILC accepted - that the verb "to express" be retained exclusively for the consent by states and that representatives of IGOs would be allowed only to "communicate" the consent of their respective organizations. Where this verb made no sense for grammatical reasons, "give" or "establish" was used instead. The difference in vocabulary not only made the style much more cumbersome, but it compelled the Special Rapporteur and the ILC to a proliferation and duplication of clauses dealing separately with acts of states and of IGOs. The principal reason given in the ILC commentary was that the verb "express" might be understood as giving the representative of an [IGO] the right to determine himself "... whether the organization should be bound ...".78
78 YB 1975 II, p. 176.
(c) The matter did not rest there. Delegates in the Sixth Committee and governments as well as IGOs, in written observations, repeatedly requested that "full powers" and "to express consent" should be used for states and IGOs alike, for reasons of simplicity, clarity and logic, and also because it would be in conformity with prevailing practice.79 It was only in its Final Report on this topic that the ILC, after considerable soul searching reflected in its commentary on Article 7,80 reverted to the uniform use of the verb "to express" for states and IGOs throughout the draft convention. However, it maintained the distinction between "powers" and "full powers", on the grounds (likewise explained in the commentary) that "it seemed inappropriate to use the term 'full powers' for organizations, for the capacity of such a body to bind itself is never unlimited". At the Vienna Conference, no less than nine amendments were proposed for Article 7. While some were intended to impose additional restrictions on IGOs, two comprehensive amendments presented by China and by Japan and the United Kingdom suggested a simplification of the text and the extension of "full powers" to IGOs. The Committee of the Whole extensively discussed the ILC text and the draft amendments to Article 7, without reaching any conclusion, except to establish a working group.81 The revised version produced by the Working Group did not incorporate the restrictive amendments but maintained the distinction between "powers" and "full powers". While the Committee of the Whole approved the text proposed by its Working Group, consultations were held concurrently, under the chairmanship of the President of the Conference, with a view to arriving at an agreed formulation of Article 2. The text which emerged from these consultations eliminated sub-paragraph 1(c bis) (defining "powers" for IGOs) and incorporated a reference to IGOs side by side with states. The task of reconciling these two contradictory provisions fell to the Drafting Committee, which opted in favour of sub-paragraph 1(c) and thereby ensured the uniform use of "full powers" for states and IGOs throughout the Convention.82
79 cf. ILC Report 1981, Annex, pp. 428, 454 et seq., 460 et seq.; A/CN.4/L.311, p. 56; A/CN.4/339, pp. 28 et seq.; A/CONF.129/5, pp. 103 et seq., 125 et seq.
80 YB 1982. II, Pt. 2, pp. 26 et seq., commentary paragraphs 10-13.
81 All amendments, as well as the consolidated redraft emerging from the Committee of the Whole, are reproduced in A/CONF.129/Add.2, pp. 2-7. Debates: A/CONF.129/C.1/SR.7, SR.8, SR.27.
82 cf. A/CONF.129/DC/17/SR.5, p. 7.
Consideration of Article 9 offered another opportunity for putting the principle of consensuality to the test. For the adoption of a treaty, Article 9 of the 1969 Convention established as a general rule the consent of all negotiating parties. For treaties adopted at an international conference, Article 9.2 established the requirement of a two-thirds majority, subject to any other rule that may be decided upon by the conference. The first question that inevitably arose when Article 9 had to be transposed into the new instrument was whether, for applying the unanimity or majority rule, IGOs should be put on an equal footing with states. Reuter's approach to the question in his fourth Report was very cautious.83 He introduced the concept of IGOs "participating as potential parties" in the drawing up of a treaty. If they participated in this capacity, their consent for adoption would be required in the same way as that of states - or of other IGOs in the same position. Treaties to be negotiated at a conference with IGO and state participation were likely to pose even more delicate problems. In Reuter's view, "the hesitations of States to admit [IGOs] as full and complete parties, especially in the case of multilateral treaties may lead to a special status for organizations...". He did not think the time had come for proposing a general framework. Regarding the two-thirds majority vote for adoption of a treaty, "the vote of [IGOs] should not be placed on the same footing as the vote of States, unless the organizations have the same rights as States at that conference". Turned into normative language, this resulted in the following opening phrase of the relevant paragraph:
"The adoption of the text of a treaty at an international conference admitting, in addition to States, one or more international organizations possessing the same rights as States at that conference, takes place by a vote of two thirds ..."
83 YB 1975 II, pp. 28-30.
During the ILC's deliberations, appreciation was expressed for the cautious approach, but the form in which it was reflected in the draft was opposed by nearly all members, either for reasons of principle or on tactical grounds.84 Some members found the idea of IGO participation in a vote on the adoption of a treaty unacceptable on principle. Others saw no reason to, deprive IGOs of the right to vote if the participants in the conference wished them to have that right, but considered that it would be undesirable to specify that organizations should have "the same rights as States"85. It was also pointed out that the rules to be established by the proposed instrument were residual rules; the primary rules would be those laid down in the rules of procedure of the conference. From this, one member drew the conclusion that paragraph 3 should merely refer to the rules established by the conference at which the treaty was to be adopted. In the text proposed by the Drafting Committee86, the term "potential party" was deleted, and reference was made to "participants in the drawing up of the treaty". In the second paragraph, the reference to "same rights" was eliminated, and the phrase on voting for adoption read: "by the vote of two thirds of the participants present and voting, unless by the same majority the latter shall decide to apply a different rule". The text proposed by the Drafting Committee was adopted without change, nor did the second reading in 1981 bring any substantive changes.87 At the Vienna Conference, paragraph 1 was among the supposedly uncontroversial provisions referred straight to the Drafting Committee,88 while paragraph 2 was amply discussed in the Committee of the Whole, in the light of a series of amendments. Most of them reflected views previously expressed in the ILC. In addition, however, eight international organizations submitted a proposal containing three amendments designed to remove the wording which gave IGOs a secondary role; in particular, after the words "international conference" the phrase "of States in which international organizations participate" was to be deleted. In the course of consultations held under the chairmanship of the President, a revised version was worked out which gave clear priority to the rules that may be adopted by an international conference and which fully reflected the amendments proposed by the eight organizations; in fact, it was rendered entirely neutral by the removal of all references to states and IGOs.89 After some editorial improvements to paragraph 2 by the Drafting Committee, the text of Article 9 was adopted in plenary without a vote.90
84 ILC, 1345th and 1346th Meetings; YB 1975 I, p. 219 et seq.
85 In this connection, Kearney pointed out that representatives of IGOs might not be eligible to hold office at a conference but might nevertheless be given the right to vote.
86 YB 1975, I, pp. 266 et seq. cf. also Commentary in ILC Report, YB 1975, II, pp. 177 et seq.
87 ILC Report 1981, pp. 303-305.
88 Pursuant to Rule 28 of the Rules of Procedure (recommended by the General Assembly as Annex I to Resolution 40/76, and adopted by the Conference without change), only the articles "requiring substantive consideration" would be referred to the Committee of the Whole, with the proviso that the latter could, at the request of a representative or of the Drafting Committee, also give substantive consideration to any provision that had initially been referred directly to the Drafting Committee.
89 For discussions in the Committee of the Whole, see document A/CONF.129/C.1/SR.8, pp. 12 et seq., SR.9, pp. 2-13 and SR.10, pp. 2-7. The proposed amendments and the revised text resulting from the consultations are given in document A/CONF.129/C.1/L.74/Add.2.
90 A/CONF.129/SR.5, p. 8
(a) After negotiation and adoption of the text of a treaty, the expression of the will to be bound by the treaty and thus to assume all obligations and rights deriving therefrom is not only the decisive step but perhaps also the core of treaty-making capacity. Article 11 enumerates the acts by which states (paragraph 1) and IGOs (paragraph 2) may express their intention to be so bound; each of the ensuing articles determines the modalities applicable to those acts, e.g. signature (Article 12), exchange of instruments (Article 13), ratification, acceptance and approval (Article 14) and accession (Article 15). Since all these acts were specified and adequately dealt with in the 1969 Convention, there was no reason for not transposing them into the new instrument. This might have been done simply by the insertion in each article of suitable references to IGOs, and this was, by and large, the method followed by Reuter - subject to one exception. As he explained in his commentary,91 he was "deterred from adopting that course by a scruple concerning ratification". He mentioned a "lengthy tradition" of monarchical origin, linking that term to the head of state; he also thought (on the basis of somewhat scanty data) that it had rarely been used by IGOs. The first paragraph of draft Article 11 presented to the ILC was taken over from the 1969 Convention and it was incorporated without any change in the 1986 Convention; the second was an exact replica, except for the omission of a reference to ratification. Article 2(b) of the 1969 Convention, enumerating the acts whereby a state could establish its consent to be bound, was transposed by the insertion of a reference to IGOs and the formulation of a separate clause concerning ratification, applicable to states only.
91 Fourth Report, YB 1975, II, p. 33, para. 4.
(b) In his oral introduction before the ILC, Reuter pointed out that the escape clause at the end of each paragraph "or by any other means if so agreed" left the possibility to provide, in the final clauses of a treaty, for ratification by IGOs also. Moreover, the acts enumerated in the draft articles related to the "international plane". Pursuant to Article 2.2, the definitions given in this instrument were "without prejudice ... to the meanings given to [the relevant terms] ... in the rules of any international organization".92 The views in the ILC were divided. Seven members saw no reason to imply that it was either impossible or undesirable for an IGO to ratify a treaty since, in contemporary treaty practice, ratification was nothing more than a process of approval or confirmation by the competent organ. As against this, three members maintained that ratification was associated with the highest expression of sovereignty, the most solemn means by which a state expressed its consent to be bound by a treaty. Three members agreed that in modern practice "ratification" was often used without any consideration of solemnity, but they shared the "scruples" expressed by Reuter. Taking into account strong susceptibilities of certain governments regarding this "act of State", they felt that it would be preferable to reserve the term "ratification" for states. Speaking as a member of the ILC, Reuter agreed with previous speakers that there was no logical reason for preventing IGOs from using the word "ratification" to describe a procedure of giving final consent following upon a first or provisional consent; the procedure was frequently used and, in certain organizations (such as the EEC) currently referred to as "ratification". However, as Special Rapporteur, he would submit a revised version to the Drafting Committee, taking into account the "psychological factor".
92 ILC 1347th meeting; YB 1975, I, pp. 227 et seq. Ibid, for ensuing discussion of the ILC (extending to 1348th Meeting).
(c) The text proposed by the Drafting Committee93 introduced, in paragraph 2, the term "act of formal confirmation", corresponding to ratification by states. Of course, this entailed a number of consequential changes in other provisions; in particular, a new paragraph had to be inserted in Article 14, and Article 2.1(b) was modified and supplemented to rearrange the definitions of "ratification"; (b bis) "act of formal confirmation" (b ter) "acceptance", "approval" and "accession".
93 ILC 1353rd meeting; YB 1975, I, pp. 263 et seq. cf. also commentary in ILC Report, YB 1975, II, pp. 178 et seq.
(d) Comments by governments and IGOs were not very numerous and generally reflected the differing views already expressed in the ILC. It was observed, however, that the proposed distinction was inappropriate, inter alia, because "act of formal confirmation" had never been used in international treaty practice (Zaire) and because it was cumbersome and could lead to confusion since similar terms with a different meaning were used in other provisions (UN, WHO).94
94 cf. 1975 Report of the Sixth Committee, paras. 181 et seq.; ILC Report 1981, Annex, pp. 428, 464; A/CONF.129/5, pp. 100-103, 131-133.
(e) At the Vienna Conference, a preliminary discussion on Article 2.1(b) revealed various tendencies: (i) several states were strongly in favour of maintaining the text proposed by the ILC; (ii) other states and all IGOs favoured the deletion of sub-paragraph 1(b bis) and the merger of 1 (b) and 1(b ter), thus creating a uniform regime for states and IGOs; (iii) an oral amendment by Austria, also supported by other delegations, was intended to merge all three subparagraphs, maintaining the "act of formal confirmation" but leaving the choice of acts indistinctly to states and IGOs.95 Article 11.2 was discussed in the Committee of the Whole, together with an amendment proposed by the German Democratic Republic to add a sentence whereby the consent expressed by an IGO would have to be "in accordance with the rules of the organization". This was strongly opposed, and the debate was suspended pending examination of the question whether the amendment should not be considered in connection with Article 27 or Article 46.96 After consultations held under the President's chairmanship on a series of controversial articles, the Committee of the Whole eventually approved the texts of Articles 2.1(b), (b bis), (b ter) and 2.2 in the form proposed by the ILC, as part of a "package deal", and this was endorsed in Plenary.97
96 Ibid., SR.10, pp. 7-10; SR. 11, p. 2.
97 Ibid., SR.27, pp. 2, 3; A/CONF.129/SR.5, pp. 5, 8. Article 2.1(b) was finally the only provision of the Convention in which the use of "bis" and "ter" was maintained.
(f) The structure and nomenclature of the remaining Articles 12 to 18, concerning the conclusion of treaties was almost entirely predetermined by the decisions of "principle" with regard to Articles 7, 9 and 11. Their transposition from the 1969 Convention gave rise to very few substantive questions. For example, Ushakov doubted whether it was appropriate to provide for consent by signature on behalf of an IGO. Since consent, to be bound, depended on decisions of the competent organ, it was hardly conceivable that an expression of intention by an IGO representative during negotiations (para. 1(c)) could be recognized as valid;98 however, the matter was not pursued. What caused greater concern to some members of the ILC and, subsequently, to governments was the growing tendency to split up paragraphs within each article, which stemmed not only from the desire (mentioned in para. 13, above) to separate IGO-state treaties from inter-agency treaties, but also from the apparent need to reflect the different terminology introduced for IGOs.99 A reversal of the course was initiated during the second reading by the ILC and pursued during the Vienna Conference.100
98 cf. YB 1975, I, pp. 229 et seq.
99 In Section 2 considered here (i.e. Arts. 7-18), five Articles (7, 12, 14, 15, 16) were affected by the first factor and four (11, 16, 17, 18) by the second factor.
100 Of the aforementioned provisions, only Articles 14 and 16 were not entirely brought back to the format of the corresponding Articles of the 1969 Convention.
A comparison of the provisions on the conclusion of treaties of the 1986 Convention with those of the 1969 Convention reveals that the treatment accorded to IGOs is, for all practical purposes, the same as that provided for states. Nearly all initiatives to impose restrictions or a capitis deminutio on IGOs, some of which were strongly reflected in the first ILC draft, were eventually defeated. The fact that TMC under Article 6 remains subject to the "rules of the organization" can be justified on objective grounds and should not adversely affect the status and capacity of IGOs as long as they retain jurisdiction to interpret and apply these rules. That an "act of formal confirmation" was created for IGOs in order to reserve "ratification" to states may be regarded as a manifestation of pride and prejudice or as a symbolic reverence to traditional concepts of sovereignty. Its impact is likely to be minimal because (i) the autonomy of IGOs with regard to the use of terminology according to their own rules and customs is guaranteed by Article 2.2, (ii) the phrase "or by any other means if so agreed" in Article 11.2 opens the way for ratification by IGOs to be provided for in a treaty concluded with one or more states or among IGOs. Bilateral treaty practice will presumably not be adversely affected by the provisions discussed above; the form and degree of participation of IGOs in multilateral treaties is likely to depend much more cm practical and policy considerations than on the terms of the 1986 Convention, which will nevertheless provide a useful legal framework for such participation.
OTHER ISSUES RELATED TO TREATY-MAKING CAPACITY
The problems relating to the conclusion of treaties have been examined in considerable detail because, in this area, TMC is the cardinal issue. Moreover, the legislative history of the relevant provisions can serve to illustrate the legal theories (as well as political currents) that were decisive in determining the role to be accorded to IGOs as contracting parties. These theories (and currents) were also noticeable in the drawing up of other provisions where only certain aspects were directly related to TMC. A simple example concerns the entry into force of a treaty. If a specified number of instruments (of ratification, accession, etc.) is required for the entry into force, do instruments deposited by IGOs count toward reaching that number? Article 25, while making no apparent distinction between states and IGOs, does not answer this question: it contains a renvoi to the provisions of the treaty which means that each multilateral treaty will necessarily have to stipulate the conditions for entry into force. Whether instruments of acceptance issued by IGOs will be treated in the same way as those of states will be an autonomous decision of the negotiating parties. Other examples are more complex and will require more detailed consideration.
The first of these examples concerns reservations. The essential characteristics of a reservation are defined in Articles 2.1(d) and 21.1 (a): a unilateral declaration whereby the reserving party modifies its treaty relations with the other party or parties, which may accept or object to that reservation. The fact that, on the one hand, reservations tend to upset the balance or rights and obligations between contracting parties while, on the other hand, a prohibition or serious restriction on reservations discourages wide ratification and accession, gave rise to serious controversies during the previous codification exercise relating to the Law of Treaties. The 1969 Convention introduced a basically liberal regime for reservations, subject to four exemptions specified in Articles 19 and 20.2. Based on the same considerations, it tried to limit the "nullifying" effects of objections (Articles 20.4; 20.5; 21). The transposition of Articles 19 to 23 into the new instrument proved extremely difficult: in no other area was the ILC led further astray, and on no other occasion were so many additional articles drawn up to distinguish between acts of IGOs and acts of states.101 Due to the very small (though gradually increasing) number of multilateral treaties with IGO participation and the almost complete absence of reservations to such treaties, the discussions were largely based on hypothetical assumptions. Nevertheless, some of the controversial issues are worth mentioning. First, if the liberal regime of the 1969 Convention is taken over, should IGOs be authorized to make reservations on the same conditions as states? The application of a stricter regime to IGOs was justified as follows: reservations were a means of protecting vital interests of states, and were therefore closely linked to the concept of sovereignty; an IGO might be tempted to make a reservation on matters outside its competence or in violation of the rules of the organization; complications would arise if an IGO and its member states made different and possibly conflicting reservations. Accordingly, reservations by IGOs in a treaty with states should be admitted only to the extent specifically authorized by the treaty. With regard to procedure, reservations by an IGO at the time of signature could not be admitted unless that act was specified in the IGO representative's (full) powers. The prevailing opinion in favour of equal treatment was supported, inter alia, by the following arguments: if treaty-making capacity was recognized by Article 6, it could not be limited to the conclusion of a treaty but covered all pertinent acts, including participation in the reservations regime; IGOs could be expected to act responsibly and in accordance with internal rules, all the more so as the secretariat was accountable to intergovernmental bodies; problems that might arise in the unlikely event of divergent reservations of an IGO and its member states were primarily of an "internal" nature and thus outside the scope of the draft articles; the possibility of a reservation at the time of signature was a highly desirable safeguard which, if it should prove unnecessary, could be withdrawn (or simply not confirmed) at a later stage. Similar controversies arose over acceptances of, and objections to, reservations. To some ILC members it seemed inadmissible that IGOs should be allowed to object to reservations by states, while others found that it might prove necessary to exercise such a right. Failure to object to a reservation within a specified period is construed as acceptance (Article 20.5). It was argued that tacit acceptance should be limited to states, while acceptance by an IGO should always be explicit and pronounced by the competent organ. Most of the initiatives designed to place IGOs under a stricter regime than states were reflected in the first ILC draft but had practically disappeared in the final draft. Several amendments following the same purpose were introduced at the Vienna Conference,102 but none of them found its way into the 1986 Convention.
101 For details, see Reuter's fourth, fifth and tenth Reports: YB 1975, II, pp. 36 et seq.; YB 1976, II, Pt. 1, pp. 138 et seq.; YB 1981, II, Pt. 1, pp. 56 et seq. Deliberations of ILC: 1348th-1350th meetings - YB 1975, I, pp. 132 et seq.; 1429th-1434th meetings, 1446th-1448th meetings - YB 1977, I, pp. 71 et seq.; 165 et seq.; 1648th-1657th meetings - YB 1981, I, pp. 38 et seq. ILC Reports: YB 1977, II, Pt. 2, pp. 32 et seq. Comments by governments and IGOs: cf. ILC Report 1981, Annex; A/CONF.129/5, pp. 137 et seq.
102 Debates in Committee of the Whole: see A/CONF.129/C.1/SR. 10-14, 27. Amendments are reproduced, and decisions thereon summarized in documents A/CONF.129/C.1/L.74/Add.2 and Add.3.
The connection between the rules giving effect to TMC and those applicable to "un-doing" a treaty became evident during the discussion on Articles 27 and 46. Although Article 27 deals with non-observance and Article 46 with invalidity of a treaty (through avoidance), the arguments adduced for or against equal treatment of states and IGOs under each of these articles are largely interchangeable, probably because the common denominator resides in the question whether the "rules of the organization" can be assimilated to the internal law of a state for the purpose of judging non-observance or avoidance of a treaty.103 One school of thought maintained that the rules of the organization - in particular the constituent instrument - must be deemed to prevail in the event of a conflict with a treaty concluded by the organization. Accordingly, an IGO should be able to invoke these rules under Article 27 as a ground for failure to observe a treaty and, as regards Article 46, the clause relating to IGOs should not refer to "rules of fundamental importance" but to "any of its rules regarding the competence to conclude treaties". In effect, if this kind of hierarchy of norms were established each organization would have its own set of jus cogens. The opposite view relied, inter alia, on the following arguments: Articles 27 and 46 were the key: provisions for safeguarding the stability of a treaty regime; an IGO could be expected to act responsibly and it should be encouraged to do so by not being permitted to invoke the violation of any one of its rules without restriction, as a ground for failing to meet its treaty obligations; if IGOs were afforded exceptional opportunities to avoid their treaty obligations, this would make them rather unreliable partners and would thus not be conducive to the achievement of their objectives. The differential treatment as between states and IGOs in the first draft of Articles 27 and 46 was partly maintained (for Article 46) in the final draft, but completely removed during the Vienna Conference.104
103 For details on Articles 27 and 46, see Reuter's fourth, eighth and eleventh Reports: YB 1975, II, pp. 39 et seq.; YB 1979, II, Pt. 1, pp. 132 et seq.; YB 1982, II, Pt. 1, pp. 6 et seq., 11. Deliberations of ILC: 1435th, 1436th, 1459th meetings - YB 1977, I, pp. 107 et seq., 238 et seq.; 1550th-1552nd meetings - YB 1979 I, pp. 87 et seq.; 1720th, 1721st meetings - YB 1982 I, pp. 133 et seq., ILC Reports: YB 1977, II, Pt. 2, pp. 118 et seq.; Rep. 1979, pp. 418 et seq.; YB 1982, II, Pt. 2, pp. 38 et seq., 51 et seq. Comments by Governments and IGOs: cf. ILC Report 1981, Annex; A/CONF.129/5, pp. 146 et seq., 185 et seq.
104 Debates in Committee of the Whole: A/CONF.129/C.1/SR.14, SR.17, SR.18, SR.27. Amendments are reproduced, and decisions thereon summarized, in documents A/CONF.129/C.1/L.74, Add. 3 and Add. 4.
Finally, it may be appropriate to refer briefly to the provisions on the settlement of disputes - Article 66 and Annex - which caused the most serious controversies, first in the ILC and the Sixth Committee105 and thereafter during the Vienna Conference.106 The connection between TMC and dispute settlement may be seen in the assumption that an IGO which has the capacity to become party to a treaty should also be recognized as a party to a dispute arising from that treaty so as to be able to protect its legal position as far as possible in the same way as other parties. The 1969 Convention distinguishes between disputes arising from Articles 53 and 64 (relating to jus cogens) and other disputes concerning invalidity, termination or suspension of treaties. For the former category, it provides for compulsory recourse to the International Court of Justice or to arbitration. For the latter category, it introduced a conciliation procedure, as defined in the Annex to the Convention. Pursuant to Article 34 of the ICJ Statute, only states have access to the Court as parties to contentious proceedings. If the competence of the ICJ were to be extended to the settlement of disputes involving IGOs, provision would have to be made for a procedure leading to a request for an advisory opinion, in accordance with Article 96 of the UN Charter and Article 65 of the ICJ Statute, bearing in mind also that certain IGOs falling within the scope of the Convention would not be entitled to address a request to the Court directly. It was necessary to specify whether the advisory opinion would be binding on the parties to the dispute and it was also considered desirable to supplement the Annex by suitable provisions for arbitration proceedings. In view of the highly political nature of these questions, it is hardly surprising that IGOs took a low profile throughout the discussions at the Vienna Conference. The text of Article 66 (and Annex) as finally adopted seems satisfactory on the whole, since it accords to IGOs a treatment analogous to that of states, to the extent possible under the provisions of the UN Charter and the ICJ Statute.
105 For details, see Reuter's ninth Report: YB 1980, II, Pt. 1, pp. 137 et seq. Deliberations of ILC: 1589th, 1590th meetings - YB 1980, I, pp. 25 et seq.; 1724th, 1726th, 1741st Meetings - YB 1982, 1, pp. 155 et seq., 169 et seq., 268 et seq. ILC Reports: 1980, pp. 195 et seq., 228 et seq.; YB 1982, II, Pt. 2, pp. 64 et seq., 75 et seq. Comments by governments and IGOs: YB 1982, II, Pt. 2, Annex, pp. 127 et seq.; A/CONF.129/5, pp. 208 et seq., 243 et seq.
106 Debates in Committee of the Whole: see A/CONF.129/C.1/SR. 24-30. Amendments are reproduced, and decisions thereon summarized, in document A/CONF.129/C.1/L.74/Add.6.
TESTING THE ROLE OF IGOs IN TREATY MAKING: IGO PARTICIPATION IN THE 1986 CONVENTION
Before the provisions of the draft instrument concerning the role of IGOs in treaty making could be put to a practical test, three distinct though interrelated questions had to be resolved, at least in principle:
· the form of the final instrument
· the manner of IGO participation in the formulation and adoption of the instrument
· the procedure whereby the instrument would become binding on, or otherwise applicable to, IGOs.
These questions were occasionally raised in the ILC, but the prevailing opinion was that, in view of their political nature, the General Assembly would be the proper forum for discussion and decision. Nevertheless, in submitting its final draft, the ILC made a recommendation on the form of the instrument and outlined various modalities for enabling IGOs to participate in the elaboration and implementation of the instrument.
The two principal options for the form of the instrument were an international convention or a set of guidelines recommended by the General Assembly. In the case of a convention, it could be adopted either by the General Assembly or at a conference of plenipotentiaries. The ILC, based on Article 23 of its Statute, decided to recommend the convening of a conference, which would pursue (if not complete) the work of earlier codification conferences in 1969, 1975 and 1978.107 The position of IGOs in the UN system was hesitant, mainly because of the uncertainty about the manner in which they would be able to participate in shaping the Convention and about the status that would be accorded to IGOs under the Convention, but also because certain provisions might be difficult to apply and might thus hamper the development of IGO treaty practice. After having outlined the advantages and disadvantages of various solutions, the International Labour Organisation (ILO) tended to favour the "soft law" approach, i.e. adoption by the General Assembly of a set of articles "as a standard of reference for action destined to harden into customary law"; such adoption could be accompanied by a recommendation that the articles be submitted to the competent organs of the IGOs concerned.108 The Administrative Committee on Coordination (ACC) in substance endorsed the position taken by the ILO.109 However, the General Assembly decided in 1982 that a UN conference should be convened for this purpose. The date and place of the conference and the categories of IGOs to be invited, as well as the procedure for preparing the conference, were determined in 1984 and final decisions on all outstanding questions were taken in 1985.110 The way was thus paved for the negotiation and adoption, with IGO participation, of a convention at a single conference session to be held in Vienna from 18 February to 21 March 1986.
107 Preliminary examination by ILC: cf. Reuter, ninth Report (YB 1980, II, Pt. 1, p. 133); 1586th meeting (YB 1980, I, pp. 7 et seq.). Recommendation by ILC; 1727th and 1728th meetings (YB 1982 I, pp. 178 et seq.); ILC Report (YB 1982 II, Pt, 2, p. 16).
108 Written comments by ILO: ILC Report 1981, Annex, pp. 459 et seq.
109 ACC Decision 1982/17: Doc. A/C.6/37/L.12. It will be recalled that the ACC is composed of the executive heads of all organizations of the UN system and chaired by the UN Secretary-General.
110 See General Assembly Resolutions 37/112, 38/139, 39/86, 40/76, including Annexes I (Draft rules of procedure), II (List of draft articles requiring substantive consideration), III (Draft final clauses).
As regards the extent of participation of IGOs in the Conference, opinions in the ILC were divided; in its 1982 report, it merely included the generic statement that "it is hardly conceivable that [IGOs] will not be associated in some way with the drafting of the convention ...". The ACC, which examined this question concurrently with that of the form of the instrument, envisaged IGO participation (a) on the same footing as states; (b) as observers and (c) with full rights of participation except the right to vote. It favoured option (c) which it found to be "in tune with the legal philosophy" underlying the ILC draft and apt to facilitate active participation "without involving the complex and delicate matter" of the exercise of the right to vote. Having decided in 1984 that IGOs with a standing invitation (or being traditionally invited) to UN codification conferences as observers should be invited to participate in the Vienna Conference in a capacity still to be determined, the General Assembly requested that preliminary consultations among future participants be organized to examine all questions relating to the methods of work, including the rules of procedure and the final clauses, as well as the major substantive questions, so as to facilitate general agreement at the Conference. Following this request, three rounds of informal consultations were held, between March and November 1985, under the joint chairmanship of the UN Legal Counsel and Ambassador R.M.S. Al-Qasi, Iraqi Permanent Representative to the UN and a member of the ILC.111 As a result of these consultations, the co-chairmen submitted to the Sixth Committee a draft General Assembly resolution with the three annexes referred to above. In the present context, Annex I is in the foreground since the extent of participation of IGOs in the conference is primarily determined by its Rules of Procedure. To a relatively large degree, representatives of IGOs were accorded the same rights as those of government representatives. Pursuant to Rule 60, they were admitted to participate in public and private meetings of the Conference and of its subsidiary organs, "as well as in the process leading to general agreement", provided that they must not "prevent on their own the achievement of a general agreement"; they were allowed to submit documents for circulation, to intervene in debates in order to explain their position or to exercise the right of reply; substantive proposals by IGOs were receivable but could only be put to a vote upon request by a state. Assimilation to states was more limited with regard to primarily procedural matters. Procedural motions by IGOs could "not be put to a vote unless supported by a State" - a subtle difference compared with substantive motions. An IGO representative could not object to any procedural motion by a state representative, nor raise a point of order or appeal against a ruling of the President of the Conference (Rule 20). In two respects, the difference was particularly marked: representatives of IGOs were not eligible to hold office or to serve on the Credentials Committee or the Drafting Committee (Rules 3, 4, 6, 48 and 49) and could not exercise "decision-taking rights" (Rules 34 and 51). However, as noted above, the ACC had already expressed a preference for reserving voting rights to states and, since consensus was achieved through negotiations and consultations - with active participation of IGOs - on nearly all provisions that were of particular interest to IGOs, their participation in the drawing up of the Convention was apparently not impaired by the aforementioned procedural handicaps. Moreover, it would seem that the compromise solutions obtained by consensus were, by and large, in line with the position taken by IGOs during debates in the Committee of the Whole and were thus the results of the few votes in plenary on matters of concern to IGOs.
111 Cf. account given by Ambassador Al-Qasi, as Chairman of the Sixth Committee, in A/C.6/40/SR.46, paras. 45 et seq.
In recommending that the draft articles should form the basis for a convention, the ILC stressed that the "adoption of a convention... will only be meaningful if the rules in that convention can bind... organizations". To achieve this purpose, there were basically two methods that could be envisaged: (i) the Convention would be open to participation of IGOs in a manner identical or analogous to that of states, as envisaged by the substantive provisions of the Convention, and (ii) IGOs would be given an opportunity of binding themselves by the rules of the Convention without technically becoming parties to it. The legal implications and the procedural devices whereby rights and obligations could be conferred upon IGOs by inter-state treaties had already been examined in earlier reports of the Special Rapporteur and during ILC deliberations on draft articles concerning third parties.112 The principal examples for this type of treaty - the two Conventions on Privileges and Immunities of the UN (CPIUN) or "accepted" (CPISA) by the representative organs of the organizations and open to ratification or accession by states - speak of "being in force" between an accepting organization and ratifying and acceding states. The ACC, in the "decision" referred to above, seriously considered this option, but found that it would be "more difficult to envisage where the proposed convention would affect a substantially larger number of organizations". During the preparatory consultations for the Vienna Conference, that solution was finally discarded in favour of full participation by IGOs in the Convention, though not entirely on an equal footing with states. The final clauses proposed by the co-chairmen and reproduced in Annex III to Resolution 40/76, envisaged the following solution: (i) all states and those IGOs that were invited to participate in the Vienna Conference could sign the Convention until a date to be specified - subsequently fixed by the Conference at 30 June 1987 (Article 82);113 (ii) the Convention was to be subject to "ratification" by states, but to an "act of formal confirmation" by (signatory) IGOs (Art. 83); (iii) accession would be open to states and IGOs but the instrument of accession of an IGO had to contain a "declaration that it has the capacity to conclude treaties" (Art. 84); and (iv) for the purpose of determining the date of entry into force of the Convention, only instruments of ratification or accession deposited by states would be taken into account (Art. 85). At the Conference, the text summarized above was put forward as a "five-State proposal", concurrently with a Soviet proposal that was similar but limited signing of the Convention to states and, consequently, did not provide for acts of formal confirmation; the only procedure open to IGOs would have been the deposit of an instrument of accession accompanied by a declaration testifying to the treaty-making capacity of the organization. The Soviet proposal having been rejected, the "five-State proposal" was adopted without a vote.114
112 cf. Reuter, first, second and sixth Reports (YB 1972 II, pp. 191 et seq., 197; 1973 II, pp. 90 et seq.; 1977 II, Pt. 1, pp. 119 et seq.); ILC 1438th to 1440th Meetings (YB 1977 I, pp. 124 et seq.).
113 Article 81 in the draft articles considered by the General Assembly. Due to the insertion by the Vienna Conference of a new Article 73 (concerning relationship with the 1969 Convention), all subsequent articles were renumbered.
114 Only 12 socialist states voted in favour of the USSR proposal. Text proposals and record of votes in A/CONF.129/L.74/Add.9; for discussion cf. A/CONF.129/C.1/SR.30.
Notwithstanding the spate of amendments inundating the Conference, a determined joint effort to reach compromise solutions that were more or less acceptable to all participants prevailed to such an extent that nearly all substantive provisions were approved without a vote. With the few exceptions referred to above, the positions adopted by IGOs both before and during the Conference were fully taken into account in the final text, and there are good reasons to assume that the technical knowledge and negotiating skill of IGO representatives made up for the procedural handicaps imposed by the Rules of Procedure. The two issues on which the Conference was compelled to resort to voting - Article 66 and the Annex concerning settlement of disputes procedure115, as well as the final clauses referred to above - were not of immediate practical interest to IGOs, although the former might become topical in the event of disputes. The result of the vote on the final clauses was favourable to IGOs in the sense that those which had been invited to participate in the Conference were authorized to sign the Convention ad referendum. The Convention itself was adopted by 67 votes to one, with 23 abstentions. In the absence of a roll-call vote, the explanations of vote are the only reliable (though incomplete) indication of the identity of certain states that were not sufficiently satisfied with the Convention to cast a positive vote. France voted negatively because it was opposed to the provisions on jus cogens (in particular Articles 53 and 64) - an issue of little concern to IGOs, except possibly the UN. The socialist group and some other states explained their abstention mainly by the inclusion of clauses on compulsory recourse to the ICJ or to arbitration in regard to disputes concerning jus cogens.116 None of these explanations of vote casts any doubt on any of the provisions of the Convention recognizing the capacity of IGOs to conclude treaties and to assume the rights and obligations deriving therefrom.
115 The amendments proposed and the decisions taken in the Committee of the Whole are given in A/CONF.129/C.1/L.74/Add.6; for discussions, see SR.24 and 26-30.
116 Vote on Convention: A/CONF.129/SR.7, p. 11; explanations of vote: idem, SR.8, pp. 2-5
In the meantime, all interested IGOs will no doubt have an opportunity to review their treaty-making practice and to adapt it, as appropriate, to the terms of the new international instrument. In any event, there can be no doubt that, in this area, their position in the international community has been considerably strengthened by the adoption of the 1986 Vienna Convention.
By Decision 41/420, the UN General Assembly welcomed the adoption of the Convention, considered that it should be signed on behalf of the UN, and expressed the hope that states and IGOs would consider taking steps to become parties at an early date. As of 29 June 1987, the Convention had been signed by twenty-five states and by eight IGOs including FAO.117
117 The eight IGOs are: United Nations, International Labour Organisation, World Health Organization, Council of Europe, United Nations Educational, Scientific and Cultural Organization, International Civil Aviation Organization, International Telecommunication Union and the Food and Agriculture Organization of the United Nations.
20 March 1986
UNITED NATIONS CONFERENCE ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS
Vienna, 18 February - 21 March 1986
VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS
V.86 55409 0723x
The Parties to the present Convention,
Considering the fundamental role of treaties in the history of international relations,
Recognizing the consensual nature of treaties and their ever-increasing importance as a source of international law,
Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized,
Affirming the importance of enhancing the process of codification and progressive development of international law at a universal level,
Believing that the codification and progressive development of the rules relating to treaties between States and international organizations or between international organizations are means of enhancing legal order in international relations and of serving the purposes of the United Nations,
Having in mind the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all States, of non-interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all,
Bearing in mind the provisions of the Vienna Convention on the Law of Treaties of 1969,
Recognizing the relationship between the law of treaties between States and the law of treaties between States and international organizations or between international organizations,
Considering the importance of treaties between States and international organizations or between international organizations as a useful means of developing international relations and ensuring conditions for peaceful co-operation among nations, whatever their constitutional and social systems,
Having in mind the specific features of treaties to which international organizations are parties as subjects of international law distinct from States,
Noting that international organizations possess the capacity to conclude treaties which is necessary for the exercise of their functions and the fulfilment of their purposes,
Recognizing that the practice of international organizations in concluding treaties with States or between themselves should be in accordance with their constituent instruments,
Affirming that nothing in the present Convention should be interpreted as affecting those relations between an international organization and its members which are regulated by the rules of the organization,
Affirming also that disputes concerning treaties, like other international disputes, should be settled, in conformity with the Charter of the United Nations, by peaceful means and in conformity with the principles of justice and international law,
Affirming also that the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention.
Have agreed as follows:
PART I - INTRODUCTION
Article 1 - Scope of the present Convention
The present Convention applies to:
(a) treaties between one or more States and one or more international organizations, and
(b) treaties between international organizations.
Article 2 - Use of terms
1. For the purposes of the present Convention:
(a) "treaty" means an international agreement governed by international law and concluded in written form:(i) between one or more States and one or more international organizations; or
(ii) between international organizations,
whether that agreement is embodied in a single instrument or in two or more related instruments and whatever its particular designation;
(b) "ratification" means the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;
(b bis) "act of formal confirmation" means an international act corresponding to that of ratification by a State, whereby an international organization establishes on the international plane its consent to be bound by a treaty;
(b ter) "acceptance", "approval" and "accession" mean in each case the international act so named whereby a State or an international organization establishes on the international plane its consent to be bound by a treaty;
(c) "full powers" means a document emanating from the competent authority of a State or from the competent organ of an international organization designating a person or persons to represent the State or the organization for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State or of the organization to be bound by a treaty, or for accomplishing any other act with respect to a treaty;
(d) "reservation" means a unilateral statement, however phrased or named, made by a State or by an international organization when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State or to that organization;
(e) "negotiating State" and "negotiating organization" mean respectively:(i) a State, or
(ii) an international organization,
which took part in the drawing up and adoption of the text of the treaty;
(f) "contracting State" and "contracting organization" mean respectively:(i) a State, or
(ii) an international organization,
which has consented to be bound by the treaty, whether or not the treaty has entered into force;
(g) "party" means a State or an international organization which has consented to be bound by the treaty and for which the treaty is in force;
(h) "third State" and "third organization" mean respectively:(i) a State, or
(ii) an international organization,
not a party to the treaty;(i) "international organization" means an intergovernmental organization;
(j) "rules of the organization" means, in particular, the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organization.
2. The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State or in the rules of any international organization.
Article 3 - International agreements not within the scope of the present Convention
The fact that the present Convention does not apply:
(i) to international agreements to which one or more States, one or more international organizations and one or more subjects of international law other than States or organizations are parties;
(ii) to international agreements to which one or more international organizations and one or more subjects of international law other than States or organizations are parties;
(iii) to international agreements not in written form between one or more States and one or more international organizations, or between international organizations; or
(iv) to international agreements between subjects of international law other than States or international organizations;
shall not affect:
(a) the legal force of such agreements;
(b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention;
(c) the application of the Convention to the relations between States and international organizations or to the relations of organizations as between themselves, when those relations are governed by international agreements to which other subjects of international law are also parties.
Article 4 - Non-retroactivity of the present Convention
Without prejudice to the application of any rules set forth in the present Convention to which treaties between one or more States and one or more international organizations or between international organizations would be subject under international law independently of the Convention, the Convention applies only to such treaties concluded after the entry into force of the present Convention with regard to those States and those organizations.
Article 5 - Treaties constituting international organizations and treaties adopted within an international organization
The present Convention applies to any treaty between one or more States and one or more international organizations which is the constituent instrument of an international organization and to any treaty adopted within an international organization, without prejudice to any relevant rules of the organization.
PART II - CONCLUSION AND ENTRY INTO FORCE OF TREATIES
SECTION 1. CONCLUSION OF TREATIES
Article 6 - Capacity of international organizations to conclude treaties
The capacity of an international organization to conclude treaties is governed by the rules of that organization.
Article 7 - Full powers
1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:
(a) that person produces appropriate full powers; or
(b) it appears from practice or from other circumstances that it was the intention of the States and international organizations concerned to consider that person as representing the State for such purposes without having to produce full powers.
2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty between one or more States and one or more international organizations;
(b) representatives accredited by States to an international conference, for the purpose of adopting the text of a treaty between States and international organizations;
(c) representatives accredited by States to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that organization or organ;
(d) heads of permanent missions to an international organization, for the purpose of adopting the text of a treaty between the accrediting States and that organization.
3. A person is considered as representing an international organization for the purpose of adopting or authenticating the text of a treaty, or expressing the consent of that organization to be bound by a treaty if:
(a) that person produces appropriate full powers; or
(b) it appears from the circumstances that it was the intention of the States and international organizations concerned to consider that person as representing the organization for such purposes, in accordance with the rules of the organization, without having to produce full powers.
Article 8 - Subsequent confirmation of an act performed without authorization
An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State or an international organization for that purpose is without legal effect unless afterwards confirmed by that State or that organization.
Article 9 - Adoption of the text
1. The adoption of the text of a treaty takes place by the consent of all the States and international organizations or, as the case may be, all the organizations participating in its drawing up except as provided in paragraph 2.
2. The adoption of the text of a treaty at an international conference takes place in accordance with the procedure agreed upon by the participants in that conference. If, however, no agreement is reached on any such procedure, the adoption of the text shall take place by the vote of two-thirds of the participants present and voting unless by the same majority they shall decide to apply a different rule.
Article 10 - Authentication of the text
1. The text of a treaty between one or more States and one or more international organizations is established as authentic and definitive:
(a) by such procedure as may be provided for in the text or agreed upon by the States and organizations participating in its drawing up; or
(b) failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States and those organizations of the text of the treaty or of the Final Act of a conference incorporating the text.
2. The text of a treaty between international organizations is established as authentic and definitive:
(a) by such procedure as may be provided for in the text or agreed upon by the organizations participating in its drawing up; or
(b) failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those organizations of the text of the treaty or of the Final Act of a conference incorporating the text.
Article 11 - Means of expressing consent to be bound by a treaty
1. The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.
2. The consent of an international organization to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, act of formal confirmation, acceptance, approval or accession, or by any other means if so agreed.
Article 12 - Consent to be bound by a treaty expressed by signature
1. The consent of a State or of an international organization to be bound by a treaty is expressed by the signature of the representative of that State or of that organization when:
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations were agreed that signature should have that effect; or
(c) the intention of the State or organization to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation.
2. For the purposes of paragraph 1:
(a) the initialling of a text constitutes a signature of the treaty when it is established that the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations so agreed;
(b) the signature ad referendum of a treaty by the representative of a State or an international organization, if confirmed by his State or organization, constitutes a full signature of the treaty.
Article 13 - Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty
The consent of States or of international organizations to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when:
(a) the instruments provide that their exchange shall have that effect; or
(b) it is otherwise established that those States and those organizations or, as the case may be, those organizations were agreed that the exchange of instruments should have that effect.
Article 14 - Consent to be bound by a treaty expressed by ratification, act of formal confirmation, acceptance or approval
1. The consent of a State to be bound by a treaty is expressed by ratification when:
(a) the treaty provides for such consent to be expressed by means of ratification;
(b) it is otherwise established that the negotiating States and negotiating organizations were agreed that ratification should be required;
(c) the representative of the State has signed the treaty subject to ratification; or
(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.
2. The consent of an international organization to be bound by a treaty is expressed by an act of formal confirmation when:
(a) the treaty provides for such consent to be expressed by means of an act of formal confirmation;
(b) it is otherwise established that the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations were agreed that an act of formal confirmation should be required;
(c) the representative of the organization has signed the treaty subject to an act of formal confirmation; or
(d) the intention of the organization to sign the treaty subject to an act of formal confirmation appears from the full powers of its representative or was expressed during the negotiation.
3. The consent of a State or of an international organization to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification or, as the case may be, to an act of formal confirmation.
Article 15 - Consent to be bound by a treaty expressed by accession
The consent of a State or of an international organization to be bound by a treaty is expressed by accession when:
(a) the treaty provides that such consent may be expressed by that State or that organization by means of accession;
(b) it is otherwise established that the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations were agreed that such consent may be expressed by that State or that organization by means of accession; or
(c) all the parties have subsequently agreed that such consent may be expressed by that State or that organization by means of accession.
Article 16 - Exchange or deposit of instruments of ratification, formal confirmation, acceptance, approval or accession
1. Unless the treaty otherwise provides, instruments of ratification, instruments relating to an act of formal confirmation or instruments of acceptance, approval or accession establish the consent of a State or of an international organization to be bound by a treaty between one or more States and one or more international organizations upon:
(a) their exchange between the contracting States and contracting organizations;
(b) their deposit with the depositary; or
(c) their notification to the contracting States and to the contracting organizations or to the depositary, if so agreed.
2. Unless the treaty otherwise provides, instruments relating to an ace of formal confirmation or instruments of acceptance, approval or accession establish the consent of an international organization to be bound by a treaty between international organizations upon:
(a) their exchange between the contracting organizations;
(b) their deposit with the depositary; or
(c) their notification to the contracting organizations or to the depositary, if so agreed.
Article 17 - Consent to be bound by part of a treaty and choice of differing provisions
1. Without prejudice to articles 19 to 23, the consent of a State or of an international organization to be bound by part of a treaty is effective only if the treaty so permits, or if the contracting States and contracting organizations or, as the case may be, the contracting organizations so agree.
2. The consent of a State or of an international organization to be bound by a treaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates.
Article 18 - Obligation not to defeat the object and purpose of a treaty prior to its entry into force
A State or an international organization is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) that State or that organization has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, act of formal confirmation, acceptance or approval, until that State or that organization shall have made its intention clear not to become a party to the treaty; or
(b) that State or that organization has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
SECTION 2. RESERVATIONS
Article 19 - Formulation of reservations
A State or an international organization may, when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.
Article 20 - Acceptance of and objection to reservations
1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the contracting States and contracting organizations or, as the case may be, by the contracting organizations unless the treaty so provides.
2. When it appears from the limited number of the negotiating States and negotiating organizations or, as the case may be, of the negotiating organizations and the object and purpose of a treaty that the application of the treaty in its entirely between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.
3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.
4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:
(a) acceptance of a reservation by a contracting State or by a contracting organization constitutes the reserving State or international organization a party to the treaty in relation to the accepting State or organization if or when the treaty is in force for the reserving State or organization and for the accepting State or organization;
(b) an objection by a contracting State or by a contracting organization to a reservation does not preclude the entry into force of the treaty as between the objecting State or international organization and the reserving State or organization unless a contrary intention is definitely expressed by the objecting State or organization;
(c) an act expressing the consent of a State or of an international organization to be bound by the treaty and containing a reservation is effective as soon as at least one contracting State or one contracting organization has accepted the reservation.
5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State or an international organization if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.
Article 21 - Legal effects of reservations and of objections to reservations
1. A reservation established with regard to another party in accordance with articles 19, 20 and 23:
(a) modifies for the reserving State or international organization in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and
(b) modifies those provisions to the same extent for that other party in its relations with the reserving State or international organization.
2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.
3. When a State or an international organization objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State or organization, the provisions to which the reservation relates do not apply as between the reserving State or organization and the objecting State or organization to the extent of the reservation.
Article 22 - Withdrawal of reservations and of objections to reservations
1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State or of an international organization which has accepted the reservation is not required for its withdrawal.
2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time.
3. Unless the treaty otherwise provides, or it is otherwise agreed:
(a) the withdrawal of a reservation becomes operative in relation to a contracting State or a contracting organization only when notice of it has been received by that State or that organization;
(b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State or international organization which formulated the reservation.
Article 23 - Procedure regarding reservations
1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and contracting organizations and other States and international organizations entitled to become parties to the treaty.
2. If formulated when signing the treaty subject to ratification, act of formal confirmation, acceptance or approval, a reservation must be formally confirmed by the reserving State or international organization when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation.
3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation.
4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.
SECTION 3. ENTRY INTO FORCE AND PROVISIONAL APPLICATION OF TREATIES
Article 24 - Entry into force
1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations may agree.
2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States and negotiating organizations or, as the case may be, all the negotiating organizations.
3. When the consent of a State or of an international organization to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State or that organization on that date, unless the treaty otherwise provides.
4. The provisions of a treaty regulating the authentication of its text, the establishment of consent to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text.
Article 25 - Provisional application
1. A treaty or a part of a treaty is applied provisionally pending its entry into force if:
(a) the treaty itself so provides; or
(b) the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations have in some other manner so agreed.
2. Unless the treaty otherwise provides or the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State or an international organization shall be terminated if that State or that organization notifies the States and organizations with regard to which the treaty is being applied provisionally of its intention not to become a party to the treaty.
PART III - OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES
SECTION 1. OBSERVANCE OF TREATIES
Article 26 - Pacta sunt servanda
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
Article 27 - Internal law of States, rules of international organizations and observance of treaties
1. A State party to a treaty may not invoke the provisions of its internal law as justification for its failure to perform the treaty.
2. An international organization party to a treaty may not invoke the rules of the organization as justification for its failure to perform the treaty.
3. The rules contained in the preceding paragraphs are without prejudice to article 46.
SECTION 2. APPLICATION OF TREATIES
Article 28 - Non-retroactivity of treaties
Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.
Article 29 - Territorial scope of treaties
Unless a different intention appears from the treaty or is otherwise established, a treaty between one or more States and one or more international organizations is binding upon each State party in respect of its entire territory.
Article 30 - Application of successive treaties relating to the same subject-matter
1. The rights and obligations of States and international organizations parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs.
2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or lacer treaty, the provisions of that other treaty prevail.
3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.
4. When the parties to the later treaty do not include all the parties to the earlier one:
(a) as between two parties, each of which is a party to both treaties, the same rule applies as in paragraph 3;
(b) as between a party to both treaties and a party to only one of the treaties, the treaty to which both are parties governs their mutual rights and obligations.
5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State or for an international organization from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards a State or an organization under another treaty.
6. The preceding paragraphs are without prejudice to the fact that, in the event of a conflict between obligations under the Charter of the United Nations and obligations under a treaty, the obligations under the Charter shall prevail.
SECTION 3. INTERPRETATION OF TREATIES
Article 31 - General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32 - Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Article 33 - Interpretation of treaties authenticated in two or more languages
1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.
3. The terms of a treaty are presumed to have the same meaning in each authentic text.
4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.
SECTION 4. TREATIES AND THIRD STATES OR THIRD ORGANIZATIONS
Article 34 - General rule regarding third States and third organizations
A treaty does not create either obligations or rights for a third State or a third organization without the consent of that State or that organization.
Article 35 - Treaties providing for obligations for third States or third organizations
An obligation arises for a third State or a third organization from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State or the third organization expressly accepts that obligation in writing. Acceptance by the third organization of such an obligation shall be governed by the rules of that organization.
Article 36 - Treaties providing for rights for third States or third organizations
1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.
2. A right arises for a third organization from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third organization, or to a group of international organizations to which it belongs, or to all organizations, and the third organization assents thereto. Its assent shall be governed by the rules of the organization.
3. A State or an international organization exercising a right in accordance with paragraph 1 or 2 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty.
Article 37 - Revocation or modification of obligations or rights of third States or third organizations
1. When an obligation has arisen for a third State or a third organization in conformity with article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State or the third organization, unless it is established that they had otherwise agreed.
2. When a right has arisen for a third State or a third organization in conformity with article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State or the third organization.
3. The consent of an international organization party to the treaty or of a third organization, as provided for in the foregoing paragraphs, shall be governed by the rules of that organization.
Article 38 - Rules in a treaty becoming binding on third States or third organizations through international custom
Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State or a third organization as a customary rule of international law, recognized as such.
PART IV - AMENDMENT AND MODIFICATION OF TREATIES
Article 39 - General rule regarding the amendment of treaties
1. A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide.
2. The consent of an international organization to an agreement provided for in paragraph 1 shall be governed by the rules of that organization.
Article 40 - Amendment of multilateral treaties
1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs.
2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States and all the contracting organizations, each one of which shall have the right to take part in:
(a) the decision as to the action to be taken in regard to such proposal;
(b) the negotiation and conclusion of any agreement for the amendment of the treaty.
3. Every State or international organization entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended.
4. The amending agreement does not bind any State or international organization already a party to the treaty which does not become a party to the amending agreement; article 30, paragraph 4(b), applies in relation to such State or organization.
5. Any State or international organization which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State or that organization:
(a) be considered as a party to the treaty as amended; and
(b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement.
Article 41 - Agreements to modify multilateral treaties between certain of the parties only
1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if:
(a) the possibility of such a modification is provided for by the treaty; or
(b) the modification in question is not prohibited by the treaty and:(i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;
(ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.
2. Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.
PART V - INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES
SECTION 1. GENERAL PROVISIONS
Article 42 - Validity and continuance in force of treaties
1. The validity of a treaty or of the consent of a State or an international organization to be bound by a treaty may be impeached only through the application of the present Convention.
2. The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty.
Article 43 - Obligations imposed by international law independently of a treaty
The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State or of any international organization to fulfil any obligation embodied in the treaty to which that State or that organization would be subject under international law independently of the treaty.
Article 44 - Separability of treaty provisions
1. A right of a party, provided for in a treaty or arising under article 56, to denounce, withdraw from or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides or the parties otherwise agree.
2. A ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty recognized in the present Convention may be invoked only with respect to the whole treaty except as provided in the following paragraphs or in article 60.
3. If the ground relates solely to particular clauses, it may be invoked only with respect to those clauses where:
(a) the said clauses are separable from the remainder of the treaty with regard to their application;
(b) it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole; and
(c) continued performance of the remainder of the treaty would not be unjust.
4. In cases falling under articles 49 and 50, the State or international organization entitled to invoke the fraud or corruption may do so with respect either to the whole treaty or, subject to paragraph 3, to the particular clauses alone.
5. In cases falling under articles 51, 52 and 53, no separation of the provisions of the treaty is permitted.
Article 45 - Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty
1. A State may no longer invoice a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming aware of the facts:
(a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or
(b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be.
2. An international organization may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming aware of the facts:
(a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or
(b) it must by reason of the conduct of the competent organ be considered as having renounced the right to invoke that ground.
SECTION 2. INVALIDITY OF TREATIES
Article 46 - Provisions of internal law of a State and rules of an international organization regarding competence to conclude treaties
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. An international organization may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of fundamental importance.
3. A violation is manifest if it would be objectively evident to any State or any international organization conducting itself in the matter in accordance with the normal practice of States and, where appropriate, of international organizations and in good faith.
Article 47 - Specific restrictions on authority to express the consent of a State or an international organization
If the authority of a representative to express the consent of a State or of an international organization to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the negotiating States and negotiating organizations prior to his expressing such consent.
Article 48 - Error
1. A State or an international organization may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State or that organization to exist at the time when the treaty was concluded and formed an essential basis of the consent of that State or that organization to be bound by the treaty.
2. Paragraph 1 shall not apply if the State or international organization in question contributed by its own conduct to the error or if the circumstances were such as to put that State or that organization on notice of a possible error.
3. An error relating only to the wording of the text of a treaty does not affect its validity; article 80 then applies.
Article 49 - Fraud
A State or an international organization induced to conclude a treaty by the fraudulent conduct of a negotiating State or a negotiating organization may invoke the fraud as invalidating its consent to be bound by the treaty.
Article 50 - Corruption of a representative of a State or of an international organization
A State or an international organization the expression of whose consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by a negotiating State or a negotiating organization may invoke such corruption as invalidating its consent to be bound by the treaty.
Article 51 - Coercion of a representative of a State or of an international organization
The expression by a State or an international organization of consent to be bound by a treaty which has been procured by the coercion of the representative of that State or that organization through acts or threats directed against him shall be without any legal effect.
Article 52 - Coercion of a State or of an international organization by the threat or use of force
A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.
Article 53 - Treaties conflicting with a peremptory norm of general international law (jus cogens)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
SECTION 3. TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES
Article 54 - Termination of or withdrawal from a treaty under its provisions or by consent of the parties
The termination of a treaty or the withdrawal of a party may take place:
(a) in conformity with the provisions of the treaty; or
(b) at any time by consent of all the parties after consultation with the contracting States and contracting organizations.
Article 55 - Reduction of the parties to a multilateral treaty below the number necessary for its entry into force
Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the fact that the number of the parties falls below the number necessary for its entry into force.
Article 56 - Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal
1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:
(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or
(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.
2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw from a treaty under paragraph 1.
Article 57 - Suspension of the operation of a treaty under its provisions or by consent of the parties
The operation of a treaty in regard to all the parties or to a particular party may be suspended:
(a) in conformity with the provisions of the treaty; or
(b) at any time by consent of all the parties after consultation with the contracting States and contracting organizations.
Article 58 - Suspension of the operation of a multilateral treaty by agreement between certain of the parties only
1. Two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of provisions of the treaty, temporarily and as between themselves alone, if:
(a) the possibility of such a suspension is provided for by the treaty; or
(b) the suspension in question is not prohibited by the treaty and:(i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;
(ii) is not incompatible with the object and purpose of the treaty.
2. Unless in a case falling under paragraph 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend.
Article 59 - Termination or suspension of the operation of a treaty implied by conclusion of a later treaty
1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and:
(a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or
(b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time.
2. The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties.
Article 60 - Termination or suspension of the operation of a treaty as a consequence of its breach
1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:
(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:(i) in the relations between themselves and the defaulting State or international organization, or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State or international organization;
(c) any party other than the defaulting State or international organization to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.
3. A material breach of a treaty, for the purposes of this article, consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.
5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.
Article 61 - Supervening impossibility of performance
1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
Article 62 - Fundamental change of circumstances
1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty between two or more States and one or more international organizations if the treaty establishes a boundary.
3. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
4. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.
Article 63 - Severance of diplomatic or consular relations
The severance of diplomatic or consular relations between States parties to a treaty between two or more States and one or more international organizations does not affect the legal relations established between those States by the treaty except in so far as the existence of diplomatic or consular relations is indispensable for the application of the treaty.
Article 64 - Emergence of a new peremptory norm of general international law (jus cogens)
If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.
SECTION 4. PROCEDURE
Article 65 - Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty
1. A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor.
2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in article 67 the measure which it has proposed.
3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations.
4. The notification or objection made by an international organization shall be governed by the rules of that organization.
5. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settlement of disputes.
6. Without prejudice to article 45, the fact that a State or an international organization has not previously made the notification prescribed in paragraph 1 shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation.
Article 66 - Procedures for judicial settlement, arbitration and conciliation
1. If, under paragraph 3 of article 65, no solution has been reached within a period of twelve months following the date on which the objection was raised, the procedures specified in the following paragraphs shall be followed.
2. With respect to a dispute concerning the application or the interpretation of article 53 or 64:
(a) if a State is a party to the dispute with one or more States, it may, by a written application, submit the dispute to the International Court of Justice for a decision;
(b) if a State is a party to the dispute to which one or more international organizations are parties, the State may, through a Member State of the United Nations if necessary, request the General Assembly or the Security Council or, where appropriate, the competent organ of an international organization which is a party to the dispute and is authorized in accordance with Article 96 of the Charter of the United Nations, to request an advisory opinion of the International Court of Justice in accordance with article 65 of the Statute of the Court;
(c) if the United Nations or an international organization that is authorized in accordance with Article 96 of the Charter of the United Nations is a party to the dispute, it may request an advisory opinion of the International Court of Justice in accordance with article 65 of the Statute of the Court;
(d) if an international organization other than those referred to in sub-paragraph (c) is a party to the dispute, it may, through a Member State of the United Nations, follow the procedure specified in sub-paragraph (b);
(e) the advisory opinion given pursuant to sub-paragraph (b), (c) or (d) shall be accepted as decisive by all the parties to the dispute concerned;
(f) if the request under sub-paragraph (b), (c) or (d) for an advisory opinion of the Court is not granted, any one of the parties to the dispute may, by written notification to the other party or parties, submit it to arbitration in accordance with the provisions of the Annex to the present Convention.
3. The provisions of paragraph 2 apply unless all the parties to a dispute referred to in that paragraph by common consent agree to submit the dispute to an arbitration procedure, including the one specified in the Annex to the present Convention.
4. With respect to a dispute concerning the application or the interpretation of any of the articles in Part V, other than articles 53 and 64, of the present Convention, any one of the parties to the dispute may set in motion the conciliation procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations.
Article 67 - Instruments for declaring invalid, terminating, withdrawing from or suspending the operation of a treaty
1. The notification provided for under article 65, paragraph 1 must be made in writing.
2. Any ace declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of article 65 shall be carried out through an instrument communicated to the other parties. If the instrument emanating from a State is not signed by the Head of State, Head of Government or Minister for Foreign Affairs, the representative of the State communicating it may be called upon to produce full powers. If the instrument emanates from an international organization, the representative of the organization communicating it may be called upon to produce full powers.
Article 68 - Revocation of notifications and instruments provided for in articles 65 and 67
A notification or instrument provided for in articles 65 or 67 may be revoked at any time before it takes effect.
SECTION 5. CONSEQUENCES OF THE INVALIDITY, TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY
Article 69 - Consequences of the invalidity of a treaty
1. A treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force.
2. If acts have nevertheless been performed in reliance on such a treaty:
(a) each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed;
(b) acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty.
3. In cases falling under articles 49, 50, 51 or 52, paragraph 2 does not apply with respect to the party to which the fraud, the act of corruption or the coercion is imputable.
4. In the case of the invalidity of the consent of a particular State or a particular international organization to be bound by a multilateral treaty, the foregoing rules apply in the relations between that State or that organization, and the parties to the treaty.
Article 70 - Consequences of the termination of a treaty
1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:
(a) releases the parties from any obligation further to perform the treaty;
(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.
2. If a State or an international organization denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State or that organization and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.
Article 71 - Consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law
1. In the case of a treaty which is void under article 53 the parties shall:
(a) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law; and
(b) bring their mutual relations into conformity with the peremptory norm of general international law.
2. In the case of a treaty which becomes void and terminates under article 64, the termination of the treaty:
(a) releases the parties from any obligation further to perform the treaty;
(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination; provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law.
Article 72 - Consequences of the suspension of the operation of a treaty
1. Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the operation of a treaty under its provisions or in accordance with the present Convention:
(a) releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of the suspension;
(b) does not otherwise affect the legal relations between the parties established by the treaty.
2. During the period of the suspension the parties shall refrain from aces tending to obstruct the resumption of the operation of the treaty.
PART VI - MISCELLANEOUS PROVISIONS
Article 73 - Relationship to the Vienna Convention on the Law of Treaties
As between States parties to the Vienna Convention on the Law of Treaties of 1969, the relations of those States under a treaty between two or more States and one or more international organizations shall be governed by that Convention.
Article 74 - Questions not prejudged by the present Convention
1. The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty between one or more States and one or more international organizations from a succession of States or from the international responsibility of a State or from the outbreak, of hostilities between States.
2. The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from the international responsibility of an international organization, from the termination of the existence of the organization or from the termination of participation by a State in the membership of the organization.
3. The provisions of the present Convention shall not prejudge any question that may arise in regard to the establishment of obligations and rights for States members of an international organization under a treaty to which that organization is a party.
Article 75 - Diplomatic and consular relations and the conclusion of treaties
The severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between two or more of those States and one or more international organizations. The conclusion of such a treaty does not in itself affect the situation in regard to diplomatic or consular relations.
Article 76 - Case of an aggressor State
The provisions of the present Convention are without prejudice to any obligation in relation to a treaty between one or more States and one or more international organizations which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State's aggression.
PART VII - DEPOSITARIES, NOTIFICATIONS, CORRECTIONS AND REGISTRATION
Article 77 - Depositaries of treaties
1. The designation of the depositary of a treaty may be made by the negotiating States and negotiating organizations or, as the case may be, the negotiating organizations, either in the treaty itself or in some other manner. The depositary may be one or more States, an international organization or the chief administrative officer of the organization.
2. The functions of the depositary of a treaty are international in character and the depositary is under an obligation to act impartially in their performance. In particular, the fact that a treaty has not entered into force between certain of the parties or that a difference has appeared between a State or an international organization and a depositary with regard to the performance of the latter's functions shall not affect that obligation.
Article 78 - Functions of depositaries
1. The functions of a depositary, unless otherwise provided in the treaty or agreed by the contracting States and contracting organizations or, as the case may be, by the contracting organizations, comprise in particular:
(a) keeping custody of the original text of the treaty and of any full powers delivered to the depositary;
(b) preparing certified copies of the original text and preparing any further text of the treaty in such additional languages as may be required by the treaty and transmitting them to the parties and to the States and international organizations entitled to become parties to the treaty;
(c) receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it;
(d) examining whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the State or international organization in question;
(e) informing the parties and the States and international organizations entitled to become parties to the treaty of acts, notifications and communications relating to the treaty;
(f) informing the States and international organizations entitled to become parties to the treaty when the number of signatures or of instruments of ratification, instruments relating to an ace of formal confirmation, or of instruments of acceptance, approval or accession required for the entry into force of the treaty has been received or deposited;
(g) registering the treaty with the Secretariat of the United Nations;
(h) performing the functions specified in other provisions of the present Convention.
2. In the event of any difference appearing between a State or an international organization and the depositary as to the performance of the latter's functions, the depositary shall bring the question to the attention of:
(a) the signatory States and organizations and the contracting States and contracting organizations; or
(b) where appropriate, the competent organ of the international organization concerned.
Article 79 - Notifications and communications
Except as the treaty or the present Convention otherwise provide, any notification or communication to be made by any State or any international organization under the present Convention shall:
(a) if there is no depositary, be transmitted direct to the States and organizations for which it is intended, or if there is a depositary, to the latter;
(b) be considered as having been made by the State or organization in question only upon its receipt by the State or organization to which it was transmitted or, as the case may be, upon its receipt by the depositary;
(c) if transmitted to a depositary, be considered as received by the State or organization for which it was intended only when the latter State or organization has been informed by the depositary in accordance with article 78, paragraph 1(e).
Article 80 - Correction of errors in texts or in certified copies of treaties
1. Where, after the authentication of the text of a treaty, the signatory States and international organizations and the contracting States and contracting organizations are agreed that it contains an error, the error shall, unless those States and organizations decide upon some other means of correction, be corrected:
(a) by having the appropriate correction made in the text and causing the correction to be initialled by duly authorized representatives;
(b) by executing or exchanging an instrument or instruments setting out the correction which it has been agreed to make; or
(c) by executing a corrected text of the whole treaty by the same procedure as in the case of the original text.
2. Where the treaty is one for which there is a depositary, the latter shall notify the signatory States and international organizations and the contracting States and contracting organizations of the error and of the proposal to correct it and shall specify an appropriate time-limit within which objection to the proposed correction may be raised. If, on the expiry of the time-limit:
(a) no objection has been raised, the depositary shall make and initial the correction in the text and shall execute a procès-verbal of the rectification of the text and communicate a copy of it to the parties and to the States and organizations entitled to become parties to the treaty;
(b) an objection has been raised, the depositary shall communicate the objection to the signatory States and organizations and to the contracting States and contracting organizations.
3. The rules in paragraphs 1 and 2 apply also where the text has been authenticated in two or more languages and it appears that there is a lack of concordance which the signatory States and international organizations and the contracting States and contracting organizations agree should be corrected.
4. The corrected text replaces the defective text ab initio, unless the signatory States and international organizations and the contracting States and contracting organizations otherwise decide.
5. The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations.
6. Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procès-verbal specifying the rectification and communicate a copy of it to the signatory States and international organizations and to the contracting States and contracting organizations.
Article 81 - Registration and publication of treaties
1. Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication.
2. The designation of a depositary shall constitute authorization for it to perform the acts specified in the preceding paragraph.
PART VIII - FINAL PROVISIONS
Article 82 - Signature
The present Convention shall be open for signature until 31 December 1986 at the Federal Ministry for Foreign Affairs of the Republic of Austria, and subsequently, until 30 June 1987, at United Nations Headquarters, New York by:
(a) all States;
(b) Namibia, represented by the United Nations Council for Namibia;
(c) international organizations invited to participate in the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations.
Article 83 - Ratification or act of formal confirmation
The present Convention is subject to ratification by States and by Namibia, represented by the United Nations Council for Namibia, and to acts of formal confirmation by international organizations. The instruments of ratification and those relating to acts of formal confirmation shall be deposited with the Secretary-General of the United Nations.
Article 84 - Accession
1. The present Convention shall remain open for accession by any State, by Namibia, represented by the United Nations Council for Namibia, and by any international organization which has the capacity to conclude treaties.
2. An instrument of accession of an international organization shall contain a declaration that it has the capacity to conclude treaties.
3. The instruments of accession shall be deposited with the Secretary-General of the United Nations.
Article 85 - Entry into force
1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession by States or by Namibia, represented by the United Nations Council for Namibia.
2. For each State or for Namibia, represented by the United Nations Council for Namibia, ratifying or acceding to the Convention after the condition specified in paragraph 1 has been fulfilled, the Convention shall enter into force on the, thirtieth day after deposit by such State or by Namibia of its instrument of ratification or accession.
3. For each international organization depositing an instrument relating to an act of formal confirmation or an instrument of accession, the Convention shall enter into force on the thirtieth day after such deposit, or at the date the Convention enters into force pursuant to paragraph 1, whichever is later.
Article 86 - Authentic texts
The original of the present Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized by their respective Governments, and duly authorized representatives of the United Nations Council for Namibia and of international organizations have signed the present Convention.
DONE AT VIENNA this twenty-first day of March one thousand nine hundred and eighty-six.
ANNEX - ARBITRATION AND CONCILIATION PROCEDURES ESTABLISHED IN APPLICATION OF ARTICLE 66
I. ESTABLISHMENT OF THE ARBITRAL TRIBUNAL OR CONCILIATION COMMISSION
1. A list consisting of qualified jurists, from which the parties to a dispute may choose the persons who are to constitute an arbitral tribunal or, as the case may be, a conciliation commission, shall be drawn up and maintained by the Secretary-General of the United Nations. To this end, every State which is a Member of the United Nations and every party to the present Convention shall be invited to nominate two persons, and the names of the persons so nominated shall constitute the list, a copy of which shall be transmitted to the President of the International Court of Justice. The term of office of a person on the list, including that of any person nominated to fill a casual vacancy, shall be five years and may be renewed. A person whose term expires shall continue to fulfil any function for which he shall have been chosen under the following paragraphs.
2. When notification has been made under article 66, paragraph 2, sub-paragraph (f), or agreement on the procedure in the present Annex has been reached under paragraph 3, the dispute shall be brought before an arbitral tribunal. When a request has been made to the Secretary-General under article 66, paragraph 4, the Secretary-General shall bring the dispute before a conciliation commission. Both the arbitral tribunal and the conciliation commission shall be constituted as follows:
The States, international organizations or, as the case may be, the States and organizations which constitute one of the parties to the dispute shall appoint by common consent:
(a) one arbitrator or, as the case may be, one conciliator, who may or may not be chosen from the list referred to in paragraph 1; and
(b) one arbitrator or, as the case may be, one conciliator, who shall be chosen from among those included in the list and shall not be of the nationality of any of the States or nominated by any of the organizations which constitute that party to the dispute, provided that a dispute between two international organizations is not considered by nationals of one and the same State.
The States, international organizations or, as the case may be, the States and organizations which constitute the other party to the dispute shall appoint two arbitrators or, as the case may be, two conciliators, in the same way. The four persons chosen by the parties shall be appointed within sixty days following the date on which the other party to the dispute receives notification under article 66, paragraph 2, sub-paragraph (f), or on which the agreement on the procedure in the present Annex under paragraph 3 is reached, or on which the Secretary-General receives the request for conciliation.
The four persons so chosen shall, within sixty days following the date of the last of their own appointments, appoint from the list a fifth arbitrator or, as the case may be, conciliator, who shall be chairman.
If the appointment of the chairman, or any of the arbitrators or, as the case may be, conciliators, has not been made within the period prescribed above for such appointment, it shall be made by the Secretary-General of the United Nations within sixty days following the expiry of that period. The appointment of the chairman may be made by the Secretary-General either from the list or from the membership of the International Law Commission. Any of the periods within which appointments must be made may be extended by agreement between the parties to the dispute. If the United Nations is a party or is included in one of the parties to the dispute, the Secretary-General shall transmit the above-mentioned request to the President of the International Court of Justice, who shall perform the functions conferred upon the Secretary-General under this sub-paragraph.
Any vacancy shall be filled in the manner prescribed for the initial appointment.
The appointment of arbitrators or conciliators by an international organization provided for in paragraphs 1 and 2 shall be governed by the rules of that organization.
II. FUNCTIONING OF THE ARBITRAL TRIBUNAL
3. Unless the parties to the dispute otherwise agree, the Arbitral Tribunal shall decide its own procedure, assuring to each party to the dispute a full opportunity to be heard and to present its case.
4. The Arbitral Tribunal, with the consent of the parties to the dispute, may invite any interested State or international organization to submit to it its views orally or in writing.
5. Decisions of the Arbitral Tribunal shall be adopted by a majority vote of the members. In the event of an equality of votes, the vote of the Chairman shall be decisive.
6. When one of the parties to the dispute does not appear before the Tribunal or fails to defend its case, the other party may request the Tribunal to continue the proceedings and to make its award. Before making its award, the Tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.
7. The award of the Arbitral Tribunal shall be confined to the subject-matter of the dispute and state the reasons on which it is based. Any member of the Tribunal may attach a separate or dissenting opinion to the award.
8. The award shall be final and without appeal. It shall be complied with by all parties to the dispute.
9. The Secretary-General shall provide the Tribunal with such assistance and facilities as it may require. The expenses of the Tribunal shall be borne by the United Nations.
III. FUNCTIONING OF THE CONCILIATION COMMISSION
10. The Conciliation Commission shall decide its own procedure. The Commission, with the consent of the parties to the dispute, may invite any party to the treaty to submit to it its views orally or in writing. Decisions and recommendations of the Commission shall be made by a majority vote of the five members.
11. The Commission may draw the attention of the parties to the dispute to any measures which might facilitate an amicable settlement.
12. The Commission shall hear the parties, examine the claims and objections, and make proposals to the parties with a view to reaching an amicable settlement of the dispute.
13. The Commission shall report within twelve months of its constitution. Its report shall be deposited with the Secretary-General and transmitted to the parties to the dispute. The report of the Commission, including any conclusions stated therein regarding the facts or questions of law, shall not be binding upon the parties and it shall have no other character than that of recommendations submitted for the consideration of the parties in order to facilitate an amicable settlement of the dispute.
14. The Secretary-General shall provide the Commission with such assistance and facilities as it may require. The expenses of the Commission shall be borne by the United Nations.