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Document:- A/CN.4/173

Report of the International Law Commission on the work of its Sixteenth Session, 11 July 1964, Official Records of the General Assembly, Nineteenth Session, Supplement (A/5809)

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Extract from the Yearbook of the International Law Commission:- 1964 , vol. II

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REPORT OF THE COMMISSION TO THE GENERAL ASSEMBLY

DOCUMENT A/5809*

Report of the International Law Commission covering the work of its sixteenth session, 11 May — 24 July 1964

CONTENTSChapter Paragraphs Page

I. ORGANIZATION OF THE SESSION 1-11 173

A. Membership and attendance 2-3 173B. Officers 4-9 174C. Agenda 10-11 174

II. LAW OF TREATIES 12-24 174

A. Introduction 12-24 174B. Draft articles on the law of treaties — 176

III. SPECIAL MISSIONS 25-35 208

A. Introduction 25-35 208B. Draft articles 1 to 16 and commentary — 210

IV. PROGRAMME OF WORK AND ORGANIZATION OF FUTURE SESSIONS 36-40 226

V. OTHER DECISIONS AND CONCLUSIONS OF THE COMMISSION 41-52 226

A. Relations between States and inter-governmental organizations 41-42 226B. Co-operation with other bodies 43-49 227C. Date and place of the next session 50 227D. Representation at the nineteenth session of the General Assembly 51 227E. Tribute to the Secretary of the Commission 52 227

* Also issued as Official Records of the General Assembly, Nineteenth Session, Supplement No. 9.

CHAPTER I A. MEMBERSHIP AND ATTENDANCE

Organization of the Session 2- T h e Commission consists of the followingmembers :

1. The International Law Commission, established ,» ^ , . n> i iin pursuance of General Assembly resolution 174 (II) of MT' * O D e r t o A S° <waW #21 November 1947, and in accordance with its Statute M r - Guberto Amado (Brazil)annexed thereto, as subsequently amended, held its Mr. Milan BartoS (Yugoslavia)sixteenth session at the European Office of the United Mr. Herbert W. Briggs (United States of America)Nations, Geneva. The session had been scheduled to last ]^[r Marcel Cadieux (Canada)from 11 May to 17 July and was extended to 24 July X/r — ., nneitrAr% rv^'^n^A\by a decision adopted by the Commission at its 728th ^ * r * £***? ( F m l a ^ } .meeting of 21 May 1964. The work of the Commission M r - Abdullah El-Enan (United Arab Republic)during this session is described in this report. Chapter II Mr. Taslim O. Elias (Nigeria)of the report contains nineteen articles on the appli- Mr. Eduardo Jimenez de Arechaga (Uruguay)cation, effects, modification and interpretation of treat- j^r Victor Kanga (Cameroon)ies. Chapter III contains sixteen articles on the topic m M a n f r e d L a c h s ( p o l d )of special missions. Chapter IV relates to the pro- . 'gramme of work and organization of future sessions of M r # L l u C n i e h (C n i n a)the Commission. Chapter V deals with a number of Mr. Antonio de Luna (Spain)administrative and other questions. Mr. Radhabinod Pal (India)

173

174 Yearbook of the International Law Commission, Vol. II

Mr. Angel M. Paredes (Ecuador)Mr. Obed Pessou (Dahomey)Mr. Paul Reuter (France)Mr. Shabtai Rosenne (Israel)Mr. Jose Maria Ruda (Argentina)Mr. Abdul Hakim Tabibi (Afghanistan)Mr. Senjin Tsuruoka (Japan)Mr. Grigory I. Tunkin (Union of Soviet Socialist

Republics)Mr. Alfred Verdross (Austria)Sir Humphrey Waldock (United Kingdom of Great

Britain and Northern Ireland)Mr. Mustafa Kamil Yasseen (Iraq)3. On 12 May 1964, the Commission elected

Mr. Paul Reuter (France) and Mr. Jose Maria Ruda(Argentina) to fill the vacancies which had arisen inconsequence of the election of Mr. Andre Gros (France)and Mr. Luis Padilla Nervo (Mexico) as judges of theInternational Court of Justice.

B. OFFICERS

4. At its 722nd meeting, held on 11 May 1964,the Commission elected the following officers :

Chairman: Mr. Roberto AgoFirst Vice-Chairman: Mr. Herbert W. BriggsSecond Vice-Chairman: Mr. Grigory I. TunkinRapporteur : Mr. Mustafa Kamil Yasseen5. At its 727th meeting, held on 20 May 1964, the

Commission appointed a Drafting Committee composedas follows:

Chairman: Mr. Herbert W. BriggsMembers: Mr. Taslim O. Elias; Mr. Eduardo

Jimenez de Arechaga ; Mr. Antonio de Luna ; Mr. PaulReuter ; Mr. Shabtai Rosenne ; Mr. Grigory I. Tunkin ;Sir Humphrey Waldock; Mr. Mustafa Kamil Yasseen.Mr. Milan BartoS took part in the Committee's workas a Special Rapporteur on special missions when thearticles relating to that topic were considered. In addi-tion, the Commission, at its 762nd meeting held on9 July, appointed Mr. Obed Pessou as a member of theCommittee. At its 727th meeting, the Commission alsodecided to request the Drafting Committee to assumeresponsibility for the preparation of the Spanish textsof the draft articles, in addition to the English andFrench texts.

6. The Secretary-General of the United Nationsattended the 767th meeting, held on 16 July 1964. TheChairman of the Commission and the Secretary-Generalmade statements on that occasion.

7. The Chairman stressed that at the time theUnited Nations was founded no one could have realizedthe extent and the urgency which the task of theInternational Law Commission, established under Ar-ticle 13 of the Charter, would have in the future.However, a great revolution was now taking place inthe world society under the auspices and with theencouragement of the United Nations, which had givenindependence to a great number of States. That event

had thrust into the foreground the pressing need for thecodification and evolution of the law of the communityof States. The Commission was devoting itself to therevision, clarification and codification of the maintopics of international law, where principles demandedto be restated on the basis of the widest possibleagreement of States and on a sound, scientific founda-tion, in matters like the law of treaties and Stateresponsibility. The Chairman expressed his convictionthat should the Commission complete its ambitiousprogramme, and if the States consummated this work indiplomatic conferences, progress without precedent sincethe time of Grotius would have been achieved.

8. The Secretary-General, in reply to the Chairmanof the International Law Commission, stated that fromall available accounts the Commission's work was quiteimpressive. He stressed that one of the basic principlesof the Charter was that all Member States should prac-tise tolerance, live as good neighbours and unite to-wards the achievement of common objectives. He feltconfident that the founding fathers of the Charter hadin mind the harmonizing of all United Nations activi-ties — political, economic, social and legal.

9. Mr. Constantin A. Stavropoulos, Legal Counsel,attended the 760th meeting, held on 7 July 1964.Mr. Yuen-li Liang, Director of the Codification Divisionof the Office of Legal Affairs, represented the Secre-tary-General and acted as Secretary to the Commission.

C. AGENDA

10. The Commission adopted an agenda for thesixteenth session consisting of the following items :

1. Filling of casual vacancies in the Commission(article 11 of the Statute).

2. Prolongation of the session.3. Law of treaties.4. Special missions.5. Relations between States and inter-governmental

organizations.6. Organization of future sessions.7. Date and place of the seventeenth session.8. Co-operation with other bodies.9. Other business.11. In the course of the session, the Commission

held fifty-three public meetings and four private meet-ings. In addition, the Drafting Committee held tenmeetings. The Commission considered all the itemson its agenda.

CHAPTER II

Law of Treaties

A. INTRODUCTION

Summary of the Commission's proceedings

12. At its fourteenth and fifteenth sessions the Com-mission provisionally adopted parts I (articles 1-29)*

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

Report of the Commission to the General Assembly 175

and II (articles 30-54)2 of its draft articles on the lawof treaties, consisting respectively of twenty-nine ar-ticles on the conclusion, entry into force and registra-tion of treaties and twenty-five articles on the invalidityand termination of treaties. In adopting parts I and IIthe Commission decided, in accordance with articles 16and 21 of its Statute, to submit them, through theSecretary-General, to Governments for their observa-tions. At its fifteenth session the Commission decidedto continue its study of the law of treaties at its nextsession, to give the topic priority, and to take up at thatsession the questions of the application, interpretationand effects of treaties.

13. At the present session of the Commission, theSpecial Rapporteur accordingly submitted a report(A/CN.4/167 and Add. 1-3) on the application, effects,revision and interpretation of treaties. The Commissionconsidered that report at its 726th-755th, 759th-760th,764th-767th and 770th meetings and adopted a provi-sional draft of articles upon the topics mentioned, whichis reproduced in the present chapter together with com-mentaries upon the articles. These articles (articles55-73) constitute part III — the final part — of theCommission's draft on the law of treaties.

14. The modification and interpretation of treatiesare topics which have not been the subject of reports byany of the Commission's three previous Special Rap-porteurs on the law of treaties. The topic of the appli-cation and effects of treaties, on the other hand, wasthe subject of a study by Sir Gerald Fitzmaurice in hisfourth and fifth reports in 1959 and I960.8 The Com-mission duly took these reports into account at thepresent session.

15. As stated in paragraph 18 of its report for1962 4 and repeated in paragraph 12 of its report for1963,5 the Commission will at a later stage considerwhether the three parts on the law of treaties shouldbe amalgamated to form a single draft convention orwhether the codification of the law of treaties shouldtake the form of a series of related conventions. Inaccordance with its decisions at its two previous ses-sions, the Commission has provisionally prepared thepresent draft in the form of a third group of articlesclosely related to parts I and II which have alreadybeen transmitted to Governments for their observations.The present draft has therefore been designated "TheLaw of Treaties — Part III". At the same time, follow-ing its decision at its previous session, and withoutthereby prejudging in any way its decision concerningthe form in which its work on the law of treatiesshould ultimately be presented, the articles in part IIIhave been numbered consecutively after the last articleof part II — the first article being numbered 55. TheCommission now intends, at its session in 1965, to

2 Yearbook of the International Law Commission, 1963,vol. II, pp. 189-217.

s Yearbook of the International Law Commission, 1959,vol. II, p. 37, and Yearbook of the International Law Commis-sion, 1960, vol. II, p. 69.

* Yearbook of the International Law Commission, 1962,vol. II, p. 160.

• Yearbook of the International Law Commission, 1963,vol. II, p. 189.

commence its re-examination of all the draft articles inthe light of the observations to be received from Gov-ernments. In the course of the present session theCommission has noted that apart from any matters ofsubstance that may be raised in the future, certain ofthe articles already provisionally adopted require fur-ther consideration in order to ensure their proper co-ordination with other articles. It has also noted that,while the juxtaposition of some topics had been con-venient for purposes of study, it may not necessarily beappropriate in the final arrangement of the draft ar-ticles, and that in consequence some readjustment ofthe material in the different parts and sections of thedraft may be found to be desirable. At the same time,it recognized that special attention will have to begiven to ensuring as full consistency as is possible inthe use of terminology in the final drafts.

16. In accordance with articles 16 and 21 of itsStatute, the Commission decided to transmit its draftconcerning the effects, application, modification andinterpretation of treaties, through the Secretary-Gen-eral, to Governments for their observations. The Com-mission, in this connexion, wishes to recall its decisionof 1958 6 that the Commission should prepare its finaldraft only at the second session following that in whichits first draft had been prepared. However, it expressesits hope that the observations of Governments onpart III of the law of treaties may be available to itbefore the commencement of its eighteenth sessionin 1966.

The scope of the present group of draft articles

17. The present group of draft articles covers thebroad topics of the application, effects, modification andinterpretation of treaties. Following the decision of theCommission in 1963 to postpone consideration of thequestion of conflicts between treaties until its sixteenthsession, the Commission has now re-examined thatquestion, which it found to be closely connected aboveall with the rules concerning the modification andinterpretation of treaties. It has therefore included anarticle — article 63 — on that matter in the presentgroup of draft articles. At the same time the Commis-sion re-affirmed its provisional decision of 1963,referred to in paragraph (2) of the commentary toarticle 41, to retain article 41 for the time being inpart II.

18. The matters dealt with in part III have a cer-tain connexion with two topics which are to be thesubject of separate studies by the Commission andwhich were, in 1963, assigned to two other SpecialRapporteurs, namely, State responsibility, and suc-cession of States and Governments. In the case of theresponsibility of States, the Commission consideredhow far it should formulate provisions regarding thelegal liability arising from a failure to perform treatyobligations. This question involves not only the generalprinciples governing the reparation to be made for abreach of a treaty, but also the grounds that may beinvoked in justification of the non-performance of a

* Yearbook of the International Law Commission, 1958,vol. II, pp. 107 and 108, paras, 60-61.


treaty. The Commission decided to exclude from itscodification of the law of treaties matters related to thetopic of State responsibility, and to take them up whenit comes to deal with that topic itself.7 In the case ofsuccession of States and Governments, the questionwas whether this topic should or should not be dealtwith in connexion with the territorial scope of treatiesand with the effects of treaties on third States. TheCommission decided that this question should be leftaside from the present group of draft articles. TheCommission, as already indicated in the decision re-corded in paragraph 58 of its report for 1963, intendsto study the question on the basis of a report to besubmitted by the Special Rapporteur on the topic ofsuccession of States and Governments.

19. In examining the question of the territorialapplication of treaties, the Commission consideredwhether it should include provisions dealing with thepossibility of the extension of a treaty to the territoryof a third State with its authorization. The Commis-sion concluded that although instances of these practicesare found, they are rare, and turn upon special circum-stances, so that particular treatment of them in theform of draft articles in part III would not bewarranted.

20. The Commission also considered whether itshould include an article covering the making of treatiesby one State on behalf of another or by an internationalorganization on behalf of a member State. As to thelatter type of case, some members felt that it was tooclosely connected with the general problem of the rela-tions between an international organization and itsmember States to be dealt with conveniently as part ofthe general law of treaties. Other members took theview that cases — and these are found in practice —where an international organization enters into a treatynot simply on its own behalf but in the name of itsmembers may constitute the latter actual parties to thetreaty and should therefore be covered in the generallaw of treaties. As to the former type of case — whereone State authorizes another to conclude a treaty inits name and thereby make it a party to the treaty —some members noted that, although instances occurred,they were infrequent, and these members felt hesitationabout including specific provisions to cover this prac-tice from the point of view of the principle of the equal-ity and independence of States. Other members pointedout that the practice, if not extensive, has a certainimportance with regard to economic unions, such asthe Belgo-Luxembourg Economic Union, where treatiesmay be concluded by one State on behalf of the Union.These members also felt that the expanding diplomaticand commercial activity of States and the variety oftheir associations with one another might lead to anincrease in cases of this type, and that it was, on thewhole, desirable to provide for them in the draft ar-ticles. The Commission decided that, in any event, thequestion really belonged to part I of the draft articlessince it concerned the conclusion rather than the appli-

7 However, a specific reservation on this matter is includedin article 63, paragraph 5, for the reasons given in the com-mentary to that article.

cation of treaties. It therefore postponed its decisionregarding the inclusion of an article on this questionuntil its next session when it intends to re-examine itsdraft of part I.

21. In examining the question of treaties and thirdStates, the Commission considered a proposal that itshould include a provision formally reserving from theoperation of articles 58 to 61 the so-called "most-favoured-nation clause". In support of this view it wasurged that the broad and general terms in which thosearticles had been provisionally adopted might blur thedistinction between provisions in favour of third Statesand the operation of the most-favoured-nation clause, amatter that might be of particular importance in con-nexion with article 61, dealing with the revocation oramendment of provisions regarding obligations or rightsof States not parties to treaties. The Commission, how-ever, while recognizing the importance of not prejudic-ing in any way the operation of most-favoured-nationclauses, did not consider that these clauses are in anyway touched by articles 58 to 61 and for that reasondecided that there was no need to include a savingclause of the kind proposed. In regard to most-favoured-nation clauses in general, the Commissiondid not think it advisable to deal with them in thepresent codification of the general law of treaties,although it felt that they might at some future timeappropriately form the subject of a special study.

22. The Commission also considered the applica-tion of treaties providing for obligations or rights to beperformed or enjoyed by individuals. Some membersof the Commission desired to see a provision on thatquestion included in the present group of draft articles,but other members considered that such a provisionwould go beyond the present scope of the law of treaties,and in view of the division of opinion the SpecialRapporteur withdrew the proposal.

23. The draft articles have provisionally been ar-ranged in three sections covering: (i) the applicationand effects of treaties, (ii) the modification of treaties,and (iii) the interpretation of treaties. The definitionscontained in article 1 of part I are applicable also topart III and it was not found necessary to add anyfurther definitions for the purposes of this part. Thearticles formulated by the Commission in this part, asin parts I and II, contain elements of progressivedevelopment as well as of codification of the law.

24. The text of draft articles 55-73 and the com-mentaries as adopted by the Commission on the pro-posal of the Special Rapporteur are reproduced below:

B. DRAFT ARTICLES ON THE LAW OF TREATIES

Part III. — Application, effects, modification andinterpretation of treaties

Section I: The application and effects of treaties

Article 55. Pacta sunt servanda

A treaty in force is binding upon the parties to itand mast be performed by them in good faith.


Commentary

(1) Pacta sunt servanda 8 — the rule that treaties arebinding on the parties and must be performed in goodfaith — is the fundamental principle of the law oftreaties. Its importance is emphasized by the fact thatit is enshrined in the preamble to the Charter of theUnited Nations. So far as the obligations of the Charteritself are concerned, paragraph 2 of Article 2 expresslyprovides that Members are to "fulfil in good faith theobligations assumed by them in accordance with thepresent Charter".

(2) There is much authority in the jurisprudenceof international tribunals for the proposition that inthe present context the principle of good faith is a legalprinciple which forms an integral part of the rule pactasunt servanda.9 In its opinion on the admission of aState to the United Nations (Article 4 of the Charter)10

the International Court of Justice, without referring toparagraph 2 of Article 2, said that the conditions foradmission laid down in Article 4 did not prevent aMember from taking into account in voting "any factorwhich it is possible reasonably and in good faith toconnect with the conditions laid down in that Article".Again, speaking of certain valuations to be made underarticles 95 and 96 of the Act of Algeciras, the Courtsaid in the Case concerning rights of nationals of theUnited States of America in Morocco (Judgement oj27 August 1952): " "The power of making the valua-tions rests with the Customs authorities, but it is apower which must be exercised reasonably and in goodfaith". Similarly, the Permanent Court of InternationalJustice, in applying treaty clauses prohibiting discrimi-nation against minorities, insisted in a number ofcases 12 that the clauses must be so applied as to ensurethe absence of discrimination in fact as well as in law ;in other words, the obligation must not be evaded by amerely literal application of the clauses. Numerousprecedents could also be found in the jurisprudence ofarbitral tribunals. To give only one example, in theNorth Atlantic Coast Fisheries Arbitration the Tri-bunal, dealing with Great Britain's right to regulatefisheries in Canadian waters in which she had grantedcertain fishing rights to United States nationals by theTreaty of Ghent, said:

" . . . from the Treaty results an obligatory rela-tion whereby the right of Great Britain to exerciseits right of sovereignty by making regulations is

8 See the full discussion of the principle pacta sunt servandain the commentary to article 20 of Harvard Law School, Re-search in International Law, part III, Law of Treaties, Ameri-can Journal of International Law (1935), Supplement No. 4,p. 977 ; J. L. Kunz, "The Meaning and the Range of the NormPacta Sunt Servanda". American Journal of InternationalLaw, vol. 39 (1945), pp. 180-197 ; C. Rousseau, Principes gene-raux du droit international public (1944), pp. 355-364.

• See especially Bin Cheng, General Principles of Law (1953),chapter III.

10 l.CJ. Reports 1948, p. 63." l.CJ. Reports 1952, p. 212.11 For example, Treatment of Polish Nationals and other

persons of Polish origin or speech in the Danzig territory,P.C.IJ. (1932), Series A/B, No. 44, p. 28 ; Minority Schoolsin Albania, P.C.IJ. (1935), Series A/B, No. 64, pp. 19-20.

limited to such regulations as are made in good faith,and are not in violation of the Treaty." 13

(3) Accordingly, the article provides that "a treatyin force is binding upon the parties to it and must beperformed by them in good faith". Some members hesi-tated to include the words "in force" as possibly lend-ing themselves to interpretations which might weakenthe clear statement of the rule. Other members, how-ever, considered that the words give expression to anelement which forms part of the rule and that, havingregard to other provisions of the draft articles, it wasnecessary on logical grounds to include them. The Com-mission had adopted a number of articles which dealtwith the entry into force of treaties, with cases of pro-visional entry into force, with certain obligations restingupon the contracting States prior to entry into force,with the nullity of treaties and with their termination.Consequently, from a drafting point of view, it seemednecessary to specify that it is treaties in force in accord-ance with the provisions of the present articles towhich the pacta sunt servanda rule applies.

(4) Some members felt that there might be ad-vantage in also stating that a party must abstain fromacts calculated to frustrate the objects and purposes ofthe treaty. The Commission, however, considered thatthis was implicit in the obligation to perform the treatyin good faith and that the rule should be stated in aspositive and simple a form as possible.

Article 56. Application of a treaty in point of time

1. The provisions of a treaty do not apply to a partyin relation to any fact or act which took place or anysituation which ceased to exist before the date of entryinto force of the treaty with respect to that party,unless the contrary appears from the treaty.

2. Subject to article 53, the provisions of a treatydo not apply to a party in relation to any fact or actwhich takes place or any situation which exists afterthe treaty has ceased to be in force with respect to thatparty, unless the treaty otherwise provides.

Commentary

(1) The present article concerns the temporal scopeof the provisions of a treaty. It is implicit in the veryconcept of a treaty's being in force that it shouldgovern the relations of the parties with respect to allfacts, acts or situations which occur or arise during theperiod while it is in force and which fall within itsprovisions. But it is a question as to whether and towhat extent a treaty may apply to facts, acts or situa-tions which occurred or arose before it came into forceor occur or arise after it has terminated.

(2) Prior facts, acts or situations. There is nothingto prevent the parties from giving a treaty, or some ofits provisions, retroactive effects if they think fit. It is

18 Reports of International Arbitral Awards, vol. XI, p. 188.The Tribunal also referred expressly to "the principle of inter-national law that treaty obligations are to be executed in perfectgood faith".


essentially a question of their intention. The generalrule, however, is that a treaty is not to be regardedas intended to have retroactive effects unless such anintention is expressed in the treaty or is clearly to beimplied from its terms. This rule was endorsed andacted upon by the International Court of Justice in theAmbatielos case (jurisdiction),14 where the GreekGovernment contended that under a treaty of 1926 itwas entitled to present a claim based on acts which hadtaken place in 1922 and 1923. Recognizing that itsargument ran counter to the general principle that atreaty does not have retroactive effects, that Govern-ment sought to justify its contention as a special caseby arguing that during the years 1922 and 1923 anearlier treaty of 1886 had been in force between theparties containing provisions similar to those of the1926 Treaty. This argument was rejected by the Courtwhich said:

"To accept this theory would mean giving retro-active effect to Article 29 of the Treaty of 1926,whereas Article 32 of this Treaty states that theTreaty, which must mean all the provisions of theTreaty, shall come into force immediately upon rati-fication. Such a conclusion might have been rebuttedif there had been any special clause or any specialobject necessitating retroactive interpretation. Thereis no such clause or object in the present case. It istherefore impossible to hold that any of its provisionsmust be deemed to have been in force earlier."

A good example of a treaty having such a " specialclause" or "special object" necessitating retroactiveinterpretation is to be found in the MavrommatisPalestine Concessions case.15 The United Kingdomcontested the Court's jurisdiction on the ground, interalia, that the acts complained of had taken place beforeProtocol XII to the Treaty of Lausanne had come intoforce, but the Court said:

"Protocol XH was drawn up in order to fix theconditions governing the recognition and treatmentby the contracting Parties of certain concessionsgranted by the Ottoman authorities before the con-clusion of the Protocol. An essential characteristictherefore of Protocol XII is that its effects extend tolegal situations dating from a time previous to itsown existence. If provision were not made in theclauses of the Protocol for the protection of therights recognized therein as against infringementsbefore the coming into force of that instrument, theProtocol would be ineffective as regards the veryperiod at which the rights in question are most inneed of protection. The Court therefore considersthat the Protocol guarantees the rights recognizedin it against any violation regardless of the date atwhich it may have taken place."

(3) The non-retroactivity principle has come underconsideration in international tribunals most frequentlyin connexion with jurisdictional clauses providing forthe submission to an international tribunal of "dis-putes", or specified categories of "disputes", betweenthe parties. Then the word " disputes " is apt to cover

14 Judgement of 1 July 1952; I.CJ. Reports 1952, p. 40.1§ P.CJJ. (1924), Series A, No. 2, p. 34.

any dispute which exists between the parties after thecoming into force of the treaty. It matters not eitherthat the dispute concerns events which took place priorto that date or that the dispute itself arose prior to it ;for the parties have agreed to submit to arbitration orjudicial settlement all their existing disputes withoutqualification. The Permanent Court said in theMavrommatis Palestine Concessions case:

"The Court is of opinion that, in cases of doubt,jurisdiction based on an international agreementembraces all disputes referred to it after its establish-ment. . . . The reservation made in many arbitrationtreaties regarding disputes arising out of eventsprevious to the conclusion of the treaty seems toprove the necessity for an explicit limitation of juris-diction and, consequently, the correctness of the ruleof interpretation enunciated above."ie

When a jurisdictional clause is attached to the sub-stantive clauses of a treaty as a means of securing theirdue application, the non-retroactivity principle mayoperate indirectly to limit ratione temporis the applica-tion of the jurisdictional clause. Thus in numerous casesunder the European Convention for the Protection ofHuman Rights and Fundamental Freedoms the Euro-pean Commission of Human Rights has held that it isincompetent to entertain complaints regarding allegedviolations of human rights said to have occurred priorto the entry into force of the Convention with respectto the State in question.17

(4) If, however, a fact, act or situation which firstoccurred or arose prior to the entry into force of atreaty continues to occur or exist after the treaty hascome into force it will be caught by the provisions ofthe treaty. The non-retroactivity principle cannot beinfringed by applying a treaty to matters that occur orexist when the treaty is in force, even if they first beganat an earlier date. Thus, while the European Commis-sion of Human Rights has not considered itself com-petent to inquire into the propriety of legislative,administrative or judicial acts completed and made finalbefore the entry into force of the European Convention,it has assumed jurisdiction where there were freshproceedings or recurring applications of those acts afterthe Convention was in force.18

(5) Paragraph 1 of the article accordingly statesthat the "provisions of a treaty do not apply to a party

16 Ibid., p. 35 ; cf. the Phosphates in Morocco case, P.CJJ.(1938), Series A/B, No. 74, p. 24. The application of the differ-ent forms of clause limiting ratione temporis the acceptance ofthe jurisdiction of international tribunals has not been free fromdifficulty, and the case law of the Permanent Court of Inter-national Justice and the International Court of Justice now con-tains a quite extensive jurisprudence on the matter. Importantthough this jurisprudence is in regard to the Court's jurisdic-tion, it concerns the application of particular treaty clauses,and the Commission does not consider that it calls for detailedexamination in the context of the general law of treaties.

11 See Yearbook of the European Convention of HumanRights (1955-1957), pp. 153-159; ibid. (1958-1959), pp. 214,376, 382, 407, 412, 492-494; ibid. (1960), pp. 222, 280, 444 ;and ibid. (1961), pp. 128, 132-145, 240, 325.

11 Case of De Becker, see Yearbook of the European Con-vention of Human Rights (1958-1959), pp. 230-235 ; Applica-tion No. 655/59, Yearbook of the European Convention ofHuman Rights (1960), p. 284.


in relation to any fact or act which took place or anysituation which ceased to exist before the date of entryinto force of the treaty with respect to that party, unlessthe contrary appears from the treaty". In other words,the treaty will not apply to facts or acts which are com-pleted or to situations which have ceased (and do notrecur) before the treaty comes into force. The moregeneral phrase "unless the contrary appears from thetreaty" is used in preference to "unless the treatyotherwise provides" in order to allow for cases wherethe very nature of the treaty indicates that it is intendedto have certain retroactive effects.

(6) Subsequent facts, acts or situations. After itstermination a treaty ex hypothesi does not operate uponany fact or act which then occurs or any situation whichthen arises or exists ; nor is a fact, act or situationwhich then occurs or exists brought within the treatymerely because it is a recurrence or continuation ofone which occurred or existed during the period whilethe treaty was in force. Moreover, it is only in rarecases, such as article XIX of the Convention on theLiability of the Operators of Nuclear Ships, that aprovision is expressed to be applicable after the termi-nation of the treaty. On the other hand, the treatycontinues to have effects for the purpose of determin-ing the legality or illegality of any act done while thetreaty was in force or of any situation resulting fromits application; in other words, rights acquired underthe treaty, whether in consequence of its performanceor its breach do not lapse on its termination.19 Thisaspect of the matter is covered in article 53 which dealswith the legal consequences of the termination of atreaty.20

(7) Paragraph 2 of the present article accordinglyprovides that "subject to article 53, the provisions of atreaty do not apply to a party in relation to any factor act which takes place or any situation which existsafter the treaty has ceased to be in force with respectto that party, unless the treaty otherwise provides". Inre-examining article 53 in connexion with the draftingof the present article, the Commission noted that itswording might need some adjustment in order to takeaccount of acquired rights resulting from the illegalityof acts done while the treaty was in force.

Article 57. The territorial scope of a treaty

The scope of application of a treaty extends to theentire territory of each party, unless the contrary appearsfrom the treaty.

Commentary(1) Certain types of treaty, by reason of their sub-

ject matter, are hardly susceptible of territorial appli-19 Thus, in the Case concerning the Northern Cameroons

(l.CJ. Reports 1963, p. 15), the International Court assumedthat a State remains responsible after the termination of atreaty for any breach that may have occurred while it was inforce. However, no reparation was claimed in that case and,owing to the special circumstances, the Court declined, after thetermination of the Trusteeship Agreement, to adjudicate uponthe question whether or not it had been infringed.

10 Yearbook of the International Law Commission, 1963,vol. II, p. 216.

cation in the ordinary sense. Most treaties, however,have their effect territorially and a question may thenarise as to what is their precise territorial scope. Insome cases the provisions of the treaty expressly relateto a particular territory or area, for example the Treatyof 21 October 1920 recognizing the sovereignty ofNorway over Spitzbergen21 and the Antarctic Treatyof 1 December 1959.22 In other cases, the terms of thetreaty indicate that it relates to particular areas. CertainUnited Kingdom treaties dealing with domestic mattersare expressly limited to Great Britain and NorthernIreland and do not relate to the Channel Islands andthe Isle of Man.23 So, too, after the creation of theUnited Arab Republic certain treaties were concludedby it whose scope was limited territorially to one partof the Republic. Again, States whose territory includesa free zone may find it necessary to except this zonefrom the scope of a commercial treaty. Another ex-ample is a boundary treaty which applies to particularareas and regulates problems arising from mixed popu-lations, such as the languages used for official purposes.On the other hand, many treaties, which are appli-cable territorially, contain ho indication of any restric-tion of their territorial scope, for example treaties ofextradition or for the execution of judgements.

(2) The Commission considers that the territorialscope of a treaty depends on the intention of the partiesand that it is only necessary in the present articles toformulate the general rule which should apply in theabsence of any specific provision or indication in thetreaty as to its territorial scope. State practice, the juris-prudence of international tribunals and the writings ofjurists appear to support the view that a treaty is tobe presumed to apply to all the territory of each partyunless a contrary intention appears from the treaty.24

Accordingly, it is this rule which is formulated in thepresent article.

(3) The term "the entire territory of each party" isa comprehensive term designed to embrace all the landand appurtenant territorial waters and air space whichconstitute the territory of the State. The Commissionpreferred this term to the term "all the territory orterritories for which the parties are internationally re-sponsible", which is found in some recent multilateralconventions. It desired to avoid the nuances and con-

21 League of Nations, Treaty Series, vol. II, p. 8.22 United Nations, Treaty Series, vol. 402, p. 71.21 For example, the Agreement between the Government of

Great Britain and Northern Ireland and the USSR on Rela-tions in the Scientific, Technological, Educational and SocialFields 1963-1965 (United Kingdom Treaty Series No. 42 of1963); the Convention of 1961 between Austria and GreatBritain for the Reciprocal Recognition and Enforcement ofForeign Judgements defines the UK as comprising Englandand Wales, Scotland and Northern Ireland (United Nations,Treaty Series, vol. 453, p. 268).

24 See Lord McNair, Law of Treaties (1961), pp. 116-117;S. Rosenne, "United Nations Treaty Practice", Recueil desCours de VAcadimie de droit international, vol. 86 (1954),pp. 374-375 ; Summary of practice of the Secretary-General asdepositary of multilateral agreements (ST/LEG/7), paras. 102-103 ; Succession of States in relation to General MultilateralTreaties of which the Secretary-General is Depositary (A/CN.4/150), paras. 73-74 and 138 (.Yearbook of the International LawCommission, 1962, vol. II, pp. 115, 123).


troversy arising from the association of the latter termwith the so-called "colonial clause". It held that its taskin codifying the modern law of treaties should be con-fined to formulating the general rule regarding theterritorial scope of a treaty.

(4) The point was made during the discussion thatthe territorial scope of a treaty may be affected byquestions of State succession. The Commission, as al-ready indicated in paragraph 18 above, decided thatthis aspect of the territorial scope of treaties shouldbe examined in connexion with its study of the topicof succession of States and Governments.

Article 58. General rule limiting the effectsof the treaties to the parties

A treaty applies only between the parties and neitherimposes any obligations nor confers any rights upona State not party to it without its consent.

Commentary

(1) There appears to be almost universal agree-ment that the rule laid down in this article — that atreaty applies only between the parties — is the funda-mental rule governing the effect of a treaty upon Statesnot parties.25 It appears originally to have been derivedfrom Roman law in the form of the well-known maximpacta tertiis nee nocent nee prosunt — agreementsneither impose obligations nor confer benefits upon thirdparties. In international law, however, the justificationfor the rule does not rest simply on this general conceptof the law of contract but on the sovereignty and inde-pendence of States. There is abundant evidence of therecognition of the rule in State practice and in the deci-sions of international tribunals, as well as in the writingsof jurists. In the Case concerning certain Germaninterests in Polish Upper Silesia 26 the Permanent Courtsaid that "A treaty only creates law as between theStates which are parties to i t ; in case of doubt, norights can be deduced from it in favour of third States".

(2) Obligations. International tribunals have beenfirm in laying down that in principle treaties, whetherbilateral or multilateral, neither impose any obligationon States which are not parties to them nor modifyin any way their legal rights without their consent.In the Island of Palmas case,27 for example, dealing witha supposed recognition of Spain's title to the islandin treaties concluded by that country with other States,Judge Huber said: "It appears further to be evidentthat Treaties concluded by Spain with third Powersrecognizing her sovereignty over the "Philippines" could

28 Professor G. Scelle, stressing the difference in characterbetween treaties and private law contracts, went so far as toobject to the application between States of the principle pactatertiis nee nocent nee prosunt, a principle devised for the pri-vate law contractual relations of individuals [Prtcis de droitdes gens (1934), vol. II, pp. 345-346 and 367-368]. But he isalone in disputing the validity in international law of the pactatertiis principle as a general principle of the law of treaties.

" P.C.IJ. (1926), Series A, No. 7, p. 29.27 Reports of International Arbitral Awards, vol. II, p. 831.

not be binding upon the Netherlands. . . ",28 In anotherpassage he said:29 ". . . whatever may be the rightconstruction of a treaty, it cannot be interpreted asdisposing of the rights of independent third Powers " ;and in a third passage30 he emphasized that " . . . theinchoate title of the Netherlands could not have beenmodified by a treaty concluded between third Powers".In short, treaties concluded by Spain with other Stateswere res inter alios acta which could not, as treaties,be in any way binding upon the Netherlands. In theCase of the Free Zones of Upper Savoy and the Districtof Gex'61 it was a major multilateral treaty — theVersailles Peace Treaty — which was in question,and the Permanent Court held that article 435 of theTreaty was "not binding upon Switzerland, who isnot a Party to that Treaty, except to the extent towhich that country accepted it". Similarly, in theRiver Oder Commission case 32 the Permanent Courtdeclined to regard a general multilateral treaty of alaw-making character — the Barcelona Convention of1921 on the Regime of Navigable Waterways of Inter-national Concern — as binding upon Poland, who wasnot a party to the treaty. Nor in the Eastern Careliacase33 did the Permanent Court take any differentposition with regard to the Covenant of the Leagueof Nations.

(3) Rights. Examples of the application of this ruleto substantive rights can also be found in the juris-prudence of arbitral tribunals. In the ClippertonIsland34 arbitration the arbitrator held that Mexico wasnot entitled to invoke against France the provision ofthe Act of Berlin of 1885 requiring notification ofoccupations of territory, inter alia, on the ground thatMexico was not a signatory to that Act. In the Forestsof Central Rhodopia case35 the arbitrator, whilstupholding Greece's claim on the basis of the provisionin the Treaty of Neuilly, went on to say:

" . . . until the entry into force of the Treaty ofNeuilly, the Greek Government, not being a signa-tory of the Treaty of Constantinople, had no legalgrounds to set up a claim based upon the relevantstipulations of that Treaty."36

(4) The question whether the rule pacta tertiis neenocent nee prosunt admits of any actual exceptions ininternational law is a controversial one which dividedthe Commission. There was complete agreement amongstthe members that there is no exception in the case ofobligations ; a treaty never by its own force alone createsobligations for non-parties. The division of opinion re-lated to the question whether a treaty may of its own

28 ibid., p. 850.2» Ibid., p. 842.ao Ibid., p. 870.31 P.C.U. (1932), Series A/B, No. 46, p. 141 ; and ibid.

(1929), Series A, No. 22, p. 17." Ibid. (1929), Series A, No. 23, pp. 19-22." Ibid. (1923), Series B, No. 5, pp. 27-28 ; cf. the some-

what special case of the Aerial Incident of 27 July 1955, I.CJ.Reports 1959, p. 138.

*4 Reports of International Arbitral Awards, vol. II, p. 1105." Ibid., vol. Ill, p. 1405.*" English translation from Annual Digest and Reports of

International Law Cases, 1933-1934, case No. 39, at p. 92.


force confer rights upon a non-party. One group ofmembers considered that, if the parties so intend, atreaty may have this effect, although the non-party isnot, of course, obliged to accept or exercise the right.Another group of members considered that no actualright exists in favour of the non-party unless and untilit is accepted by the non-party. The Commission wasable to agree upon a formulation of article 60 underwhich it is said that a right may arise for a State froma provision of a treaty to which it is not a party, if itexpressly or impliedly assents thereto. The matter isdiscussed more fully in the commentary to article 60and is mentioned here only because the division ofopinion in the Commission on this point complicated thedrafting of the present article. The first group of mem-bers would have preferred in the present article toqualify the general statement of the pacta tertiis ruleby the words "subject to article 60". The second group,however, considered that this would have presentedarticle 60 as an actual exception to the rule and havethereby implied that in certain cases a treaty may ofits own force create a right in favour of a non-party.The solution arrived at to preserve an equilibrium be-tween the respective doctrinal points of view was to en-title the present article "General rule limiting the effectsof treaties to the parties", thus indicating that there arefurther rules in the following articles, but without in-dicating whether or not they are to be regarded as ex-ceptions to the general rule. The words " without itsconsent" were included at the end of the article purelyfor logical reasons, since both articles 59 and 60 men-tion the element of consent and thereby safeguard theposition of the non-party with regard to the rejectionof the obligation or right.

Article 59. Treaties providing for obligationsfor third States

An obligation may arise for a State from a provisionof a treaty to which it is not a party if the parties intendthe provision to be the means of establishing thatobligation and the State in question has expressly agreedto be so bound.

Commentary

(1) The primary rule, formulated in the previousarticle, is that the parties to a treaty cannot impose anobligation on a third State without its consent. Thatrule is one of the bulwarks of the independence andequality of States, and the present article does not departfrom it. On the contrary, it underlines that the consentof a State is always necessary if it is to be bound by aprovision contained in a treaty to which it is not a party.Under it two conditions have to be fulfilled before a non-party can become bound: first, the parties to the treatymust have intended the provision in question to be themeans of establishing an obligation for the State not aparty to the treaty; and, secondly, the third State musthave expressly agreed to be bound by the obligation.The Commission recognized that when these conditionsare fulfilled there is, in effect, a second collateral agree-ment between the parties to the treaty, on the one hand,

and the third State on the other; and that the juridicalbasis of the latter's obligation is not the treaty itselfbut the collateral agreement. However, even if thematter is viewed in this way, the case remains onewhere a provision of a treaty concluded between certainStates becomes directly binding upon another Statewhich is not and does not become a party to the treaty.

(2) The application of this article is illustrated bythe Permanent Court's approach to article 435 of theTreaty of Versailles in the Free Zones case.37 By thatarticle the parties to the Treaty of Versailles declaredthat certain provisions of treaties, conventions anddeclarations and other supplementary acts concluded atthe end of the Napoleonic wars with regard to theneutralized zone of Savoy "are no longer consistent withpresent conditions" ; took note of an agreement reachedbetween the French and Swiss Governments to negotiatethe abrogation of the stipulations relating to this Zone ;and added that those stipulations "are and remain abro-gated". Switzerland was not a party to the Treaty ofVersailles, but the text of the article had been referredto her prior to the conclusion of the Treaty. The SwissFederal Council had further addressed a note38 to theFrench Government informing it that Switzerland foundit possible to "acquiesce" in article 435, but only oncertain conditions. One of those conditions was that theFederal Council made the most express reservations asto the statement that the provisions of the old treaties,coventions, etc., were no longer consistent with presentconditions, and said that it would not wish its acceptanceof the article to lead to the conclusion that it wouldagree to the suppression of the regime of the freezones. France contended before the Court that theprovisions of the old treaties, conventions, etc., concern-ing the free zones had been abrogated by article 435.In rejecting this contention, the Court pointed out thatSwitzerland had not accepted that part of article 435which asserted the obsolescence and abrogation of thefree zones :

"Whereas, in any event, Article 435 of the Treatyof Versailles is not binding on Switzerland, which isnot a Party to this Treaty, except to the extent towhich that country has itself accepted it; as this ex-tent is determined by the note of the Swiss FederalCouncil of May 5th, 1919, an extract from whichconstitutes Annex I to this article; as it is by thisaction and by this action alone that the Swiss Gov-ernment has 'acquiesced' in the 'provisions ofArticle 435', namely 'under the conditions andreservations' which are set out in the said note."

(3) During the discussion some members referred totreaty provisions imposed upon an aggressor State andraised the question of the application of the presentarticle to such provisions. The Commission recognizedthat they would fall outside the principle laid down inthe present article, and would concern the question ofthe sanctions for violations of international law. At thesame time, it noted that article 36, which provides for

17 P.CJJ. (1929), Series A, No. 22, pp. 17-18 ; ibid. (1932),Series A/B, No. 46, p. 141.

18 The text of the relevant part of this note was annexed toarticle 435 of the Treaty of Versailles.


the nullity of any treaty procured by the threat or useof force, is confined to cases where the threat or use offorce is "in violation of the principles of the Charter ofthe United Nations". A treaty provision imposed uponan aggressor State not a party to the treaty would notinfringe article 36.

Article 60. Treaties providing for rightsfor third States

1. A right may arise for a State from a provisionof a treaty to which it is not a party if (a) the partiesintend the provision to accord that right either to theState in question or to a group of States to which itbelongs or to all States, and (b) the State expressly orimpliedly assents thereto.

2. A State exercising a right in accordance withparagraph 1 shall comply with the conditions for itsexercise provided for in the treaty or established inconformity with the treaty.

Commentary

(1) This article deals with the case of rights andformulates the conditions under which a State may beentitled to invoke a provision of a treaty to which itis not a party. The case of rights, as already explainedin the commentary to article 58, is more controversialthan that of obligations. The reason is that the questionof the need for the consent of the third State presentsitself in a somewhat different light than in the case ofobligations. The parties to a treaty cannot, in the natureof things, impose a right on a third State because aright, even when effectively granted, may always bedisclaimed or waived. Consequently, under the presentarticle the question is not whether the third State'sconsent is required in order to protect it against anyderogation from its independence, but whether its"acceptance" of the provisions is or is not essential tothe creation of the right.

(2) The Commission noted that treaty practice showsa not inconsiderable number of treaties containing stipu-lations in favour of States not parties to them. Insome instances, the stipulation is in favour of individualStates, as, for example, provisions in the Treaty ofVersailles in favour of Denmark89 and Switzerland.40

In some instances, it is in favour of a group of States,as in the case of the provisions in the Peace Treatiesafter the two world wars which stipulated that thedefeated States should waive any claims arising outof the war in favour of certain States not parties to thetreaties.41 A further case is Article 35 of the UnitedNations Charter, which stipulates that non-membershave a right to bring disputes before the SecurityCouncil or General Assembly. Again, the Mandate andTrusteeship Agreements contain provisions stipulating

for certain rights in favour respectively of Members ofthe League and of the United Nations, though in thesecases the stipulations are of a special character as beingby one member of an international organization infavour of the rest.42 In other instances, the stipulationis in favour of States generally, as in the case ofprovisions concerning freedom of navigation in certaininternational rivers, and through certain maritime canalsand straits.

(3) A number of writers,43 including the authors ofboth the principal textbooks on the law of treaties,maintain that a treaty cannot of its own force create anactual right in favour of a third State. Broadly, theview of these writers is that, while a treaty maycertainly confer, either by design or by its incidentaleffects, a benefit on a third State, the latter can onlyacquire an actual right through some form of collateralagreement between it and the parties to the treaty. Inother words, they hold that a right will be created onlywhen the treaty provision is intended to constitute anoffer of a right to the third State which the latter hasaccepted. Similarly, for these writers it goes withoutsaying that, in the absence of such a collateral agree-ment, the parties to a treaty are completely free, withoutobtaining the consent of the third State, to abrogate oramend the provision creating the benefit in its favour.They take the position that neither State practice nor thepronouncements of the Permanent Court in the FreeZones case44 furnish any clear evidence of the recogni-tion of the institution of stipulation pour autrui in inter-national law.

(4) Another group of writers,45 which includes thethree previous Special Rapporteurs on the law oftreaties, takes a quite different position. Broadly, theview of these writers is that there is nothing in inter-national law to prevent two or more States from ef-fectively creating a right in favour of another State bytreaty, if they so intend ; and that it is always a questionof the intention of the parties in concluding the particulartreaty. According to them, a distinction has to be drawnbetween a treaty in which the intention of the partiesis merely to confer a benefit on the other State andone in which their intention is to invest it with an

*• Article 109 of the Treaty of Versailles." Articles 358 and 374 of the Treaty of Versailles.41 See E. Jimenez de Ar6chaga, "Treaty Stipulations in favor

of Third States", American Journal of International Law,vol. 50 (1956), p. 355.

42 See the South-West Africa Cases, l.CJ. Reports 1962,pp. 329-331 and p. 410; the Northern Cameroons Case, l.CJ.Reports 1963, p. 29.

° For example, C. Rousseau, Principes generaux du droitinternational public (1944), pp. 468-477; Lord McNair, Law ofTreaties (1961), pp. 309-312 ; L. A. Podesta Costa, Manual deDerecho Internacional Publico, para. 157; G. Salvioli, Lesregies generates de la Paix, Recueil des Cours de I'Academie dedroit international, vol. 46 (1933), pp. 29-30.

44 P.C.1J. (1932), series A/B, No. 46, p. 147.45 For example, J. L. Brierly, Law of Nations (5th edition,

1955), pp. 251-252; Sir Hersch Lauterpacht, Development ofInternational Law by the International Court (1958), pp. 306-310; Sir Gerald Fitzmaurice, Fifth Report on the Law ofTreaties, Yearbook of the International Law Commission, 1960,vol. II, pp. 81 and 102-104; E. Jimenez de Arechaga, "TreatyStipulations in favor of Third States", American Journal ofInternational Law, vol. 50 (1956), pp. 358-387 ; Harvard LawSchool, Research in International Law, American Journal ofInternational Law, vol. 29, Supplement (1935), part III, Lawof Treaties, pp. 924-937 ; M. Lachs, Le developpement et lesfonctions des traitds internationaux, Recueil des Cours deI'Academie de droit international, vol. 92 (1957), pp. 313-314.


actual right. In the latter case these writers hold thatthe other State acquires a legal right to invoke directlyand on its own account the provision conferring thebenefit, and does not need to enlist the aid of one ofthe parties to the treaty in order to obtain the executionof the provision. This right is not, in their opinion, con-ditional upon any specific act of acceptance by the otherState — any collateral agreement between it and theparties to the treaty. These writers maintain that, on thewhole, modern State practice confirms the recognitionin international law of the principle that a treaty mayconfer an enforceable right on a State not a party to it.They also maintain that authority for this view is to befound in the report of the Committee of Jurists to theCouncil of the League on the Aaland Islands question 46

and more especially in the judgement of the PermanentCourt in 1932 in the Free Zones case where it said :

"It cannot be lightly presumed that stipulationsfavourable to a third State have been adopted withthe object of creating an actual right in its favour.There is however nothing to prevent the will ofsovereign States from having this object and thiseffect. The question of the existence of a right acquiredunder an instrument drawn between other States istherefore one to be decided in each particular case:it must be ascertained whether the States which havestipulated in favour of a third State meant to createfor that State an actual right which the latter hasaccepted as such."47

(5) The opinion of the Commission, as stated inthe commentary to article 58, was divided on thisquestion. Some members in general shared the viewsof the first group of writers set out in paragraph 3above, while other members in general shared the viewsof the second group set out in paragraph 4. The Com-mission, however, concluded that this division of opinionamongst its members was primarily of a doctrinalcharacter and that the two opposing doctrines did notdiffer very substantially in their practical effects. Bothgroups considered that a treaty provision may be ameans of establishing a right in favour of a third State ;and that the third State is free to accept or reject theright as it thinks fit. The difference was that accordingto one group the treaty provision constitutes no morethan the offer of a right until the beneficiary State has insome manner manifested its acceptance of the right,whereas according to the other group the right arisesat once and exists unless and until disclaimed by thebeneficiary State. The first group, on the other hand,conceded that acceptance of a right by a third State,unlike acceptance of an obligation, need not be expressbut may take the form of a simple exercise of the rightoffered in the treaty. Moreover, the second group, for itspart, conceded that a disclaimer of what they considered

4* League of Nations, Official Journal, Special SupplementNo. 3 (October 1920), p. 18; see also Harvard Law School*Research in International Law. A.J.I.L., vol. 29, Supplement(1935), part III, Law of Treaties, pp. 927-928.

47 P.C.U. (1932), Series A/B. No. 46, pp. 147-148 ; in thecourse of that case, however, three judges expressly dissentedfrom the view that a stipulation in favour of a State not a partyto the treaty may of itself confer an actual right upon thatState.

to be an already existing right need not be expressbut may in certain cases occur tacitly through failure toexercise it. Consequently, it seemed to the Commissionthat in practice the two doctrines would be likely togive much the same results in almost every case. Nordid the Commission consider that the difference indoctrine necessarily led to different conclusions in regardto the right of the parties to the treaty to revoke oramend the provisions relating to the right. On the con-trary, it was unanimous in thinking that until the bene-ficiary State had manifested its assent to the grant ofthe right, the parties should remain free to revoke oramend the provision without its consent; and that after-wards its consent should always be required unless itappeared from the treaty that the provision was intendedto be revocable. Being of the opinion that the twodoctrines would be likely to produce different resultsonly in very exceptional circumstances,48 the Commis-sion decided to frame the article in a neutral formwhich, while meeting the requirements of State practice,would not prejudge the doctrinal basis of the rule.

(6) Paragraph 1 therefore lays down that a rightmay arise for a State from a provision of a treaty towhich it is not a party under two conditions. First,the parties must intend the provision to accord the righteither to the particular State in question or to a groupof States to which it belongs or to States generally.The intention to accord the right is of cardinal im-portance, since it is only when the parties have such anintention that a legal right, as distinct from a merebenefit, may arise from the provision. Examples ofstipulations in favour of individual States, groups orStates generally have already been mentioned in para-graph 2. The second condition is the express or im-plied assent of the beneficiary State. The formulationof this condition in the present tense "if the State ex-pressly or impliedly assents thereto" is designed toleave open the doctrinal question whether juridicallythe right is created by the treaty or by the beneficiaryState's act of acceptance. According to one school, ofthought, as already explained, the assent of the in-tended beneficiary, even though it may merely be im-plied from the exercise of the right, constitutes an"acceptance" of an offer made by the parties ; accordingto the other school of thought, assent is only significantas an indication that the right is not disclaimed by thebeneficiary.

(7) Paragraph 2 merely specifies that in exercisingthe right a beneficiary State must comply with theconditions for its exercise provided for in the treatyor established in conformity with the treaty. The words"or established in conformity with the treaty" takeaccount of the fact that not infrequently conditions forthe exercise of the right may be laid down in a supple-mentary instrument or in some cases unilaterally byone of the parties. For example, in the case of a provi-

48 See, for example, the controversy between the UnitedStates Treasury, and the State Department as to whether theFinnish Peace Treaty had actually vested a right in the UnitedStates to avail itself or not to avail itself of a waiver of Fin-land's claims; E. Jimenez de Arechaga, "Treaty Stipulations infavor of Third States", American Journal of InternationalLaw, vol. 50 (1956), p. 355.


sion allowing freedom of navigation in an internationalriver or maritime waterway, the territorial State hasthe right in virtue of its sovereignty to lay down relevantconditions for the exercise of the right provided, ofcourse, that they are in conformity with its obligationsunder the treaty.

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

When an obligation or right has arisen under article59 or 60 for a State from a provision of a treaty towhich it is not a party, the provision may be revokedor amended only with the consent of that State, unlessit appears from the treaty that the provision wasintended to be revocable.

Commentary

(1) Article 61 deals with the position of the partiesto a treaty in regard to the revocation or amendment ofa provision intended to give rise to an obligation orright for a State not a party to the treaty. The Com-,mission, as already stated in paragraph (5) of the com-mentary to the previous article, was unanimously of theview that in the case of a right, the parties are free to re-voke or amend the provision at any time before thebeneficiary State has manifested its assent; but thatafterwards they may do so only with its consent, unlessit appears from the treaty that the provision was in-tended to be revocable. It considered that the same ruleshould apply in the case of an obligation. Althougha beneficiary State would not normally have any interestin objecting to the revocation of a provision subjectingit to an obligation, this might not always be so ; and itsconsent was certainly necessary for any amendment ofa provision under which it had accepted an obligation.

(2) The article accordingly lays down that whenunder article 59 or 60 a State not a party to a treatyhas accepted an obligation or assented to a right, theprovision relating to such obligation or right may berevoked or amended only with the consent of that State,unless it appears from the treaty that the provision wasintended to be revocable. Thus, by implication, the articlealso lays down that prior to such assent the provisionmay be revoked or amended by agreement between theparties alone. The Commission recognized that the re-vocable character of the provision might also appearfrom transactions made between the parties and thebeneficiary State. It felt, however, that this would con-stitute an agreement between the parties and the bene-ficiary and need not be mentioned in the present article.

Article 62. Roles in a treaty becoming generallybinding through international custom

Nothing in articles 58 to 60 precludes rules set forthin a treaty from being binding upon States not partiesto that treaty if they have become customary rulesof international law.

Commentary

(1) The role played by custom in sometimes extend-ing the application of rules contained in a treatybeyond the contracting States is well recognized. Atreaty concluded between certain States may formulatea rule, or establish a territorial, fluvial or maritimeregime, which afterwards comes to be generally acceptedby other States as customary international law, as, forexample, the Hague Conventions regarding the rulesof land warfare,49 the agreements for the neutraliza-tion of Switzerland, and various treaties regarding inter-national riverways and maritime waterways. Or a multi-lateral treaty, formulating new general norms of inter-national law and drawn up between a large number ofStates, may be ratified only by some of the negotiatingStates and yet come to be generally accepted as enun-ciating rules of customary law. So too a codifying con-vention purporting to state existing rules of customarylaw may come to be regarded as the generally acceptedformulation of the customary rules in question even byStates not parties to the convention.

(2) In none of these cases, however, can it properlybe said that the treaty itself has legal effects for Statesnot parties to it. They are cases where, without estab-lishing any treaty relation between themselves and theparties to the treaty, other States recognize rules formu-lated in a treaty as binding customary law. In short, forthese States the source of the binding force of the rules iscustom, not the treaty. For this reason the Commissiondid not think that this process should be included inthe draft articles as a case of a treaty having legaleffects for third States. It did not, therefore, formulateany specific provisions concerning the operation of cus-tom in extending the application of treaty rules beyondthe contracting States. On the other hand, having regardto the importance of the process and to the nature ofthe provisions in articles 58 to 60, it decided to includein the present article a general reservation stating thatnothing in those articles precludes treaty rules frombeing binding on non-parties if they have becomecustomary law.

(3) In connexion with its examination of article 59and of the present article, the Commission consideredwhether treaties creating so-called "objective regimes",that is, obligations and rights valid erga omnes, shouldbe dealt with separately as a special case of treatieshaving effects for third States.50 Some members of theCommission favoured this course, expressing the viewthat the concept of treaties creating objective regimesexisted in international law and merited special treat-ment in the draft articles. In their view, treaties whichfall within this concept are treaties for the neutralizationor demilitarization of particular territories or areas,treaties providing for freedom of navigation in inter-

*' Held by the International Military Tribunal at Niirnbergto enunciate rules which had become generally binding rules ofcustomary law.

60 See generally Sir Gerald Fitzmaurice's Fifth Report onthe Law of Treaties, Yearbook of the International Law Com-mission, I960, vol. II, pp. 69-107 ; and Sir Humphrey Waldock'sThird Report, vide supra, pp. 5-65, article 63 and commentary.


national rivers or maritime waterways ; and they citedthe Antarctic Treaty as a recent example of such atreaty.51 Other members, however, while recognizingthat in certain cases treaty rights and obligations maycome to be valid erga omnes, did not regard these casesas resulting from any special concept or institution ofthe law of treaties. They considered that these casesresulted either from the application of the principle inarticle 59 or from the grafting of an international customupon a treaty under the process which is the subjectof the reservation in the present article. As the theoryof treaties creating objective regimes was controversialand its acceptability to States somewhat doubtful, theCommission concluded that to recognize that suchtreaties create special legal effects for non-parties wouldbe premature at the present stage of the developmentof international relations. It considered that article 60,which provides for treaties where the parties intend tocreate rights in favour of States generally, together withthe process mentioned in the present article, furnish alegal basis for the establishment of treaty obligations andrights valid erga omnes, which, if it falls short of whatsome members of the Commission regard as desirable,goes as far as is likely to be acceptable to States.Accordingly, it decided not to formulate any specialprovisions on treaties creating so-called objectiveregimes.

Article 63. Application of treaties havingincompatible provisions

1. Subject to Article 103 of the Charter of the UnitedNations, the obligations of States parties to treaties,the provisions of which are incompatible, shall bedetermined in accordance with the following paragraphs.

2. When a treaty provides that it is subject to, oris not inconsistent with, an earlier or a later treaty,the provisions of that other treaty shall prevail.

3. When all the parties to a treaty enter into a latertreaty relating to the same subject matter, but theearlier treaty is not terminated under article 41 of thesearticles, the earlier treaty applies only to the extentthat its provisions are not incompatible with those ofthe later treaty.

4. When the provisions of two treaties are incom-patible and the parties to the later treaty do not includeall the parties to the earlier one :

(a) As between States parties to both treaties, thesame rule applies as in paragraph 3 ;

(b) As between a State party to both treaties anda State party only to the earlier treaty, the earliertreaty applies;

(c) As between a State party to both treaties anda State party only to the later treaty, the later treatyapplies.

5. Paragraph 4 is without prejudice to any responsi-bility which a State may incur by concluding or ap-plying a treaty the provisions of which are incompatiblewith its obligations towards another State under anothertreaty.

Commentary

(1) The question of conflicts between incompatibleprovisions of successive treaties was discussed by SirHersch Lauterpacht in successive reports in 195352

and 1954 53 in the context of the validity of treaties, andagain by Sir Gerald Fitzmaurice in his third report M

in 1958 in the same context. The present Special Rap-porteur also examined this question in the context of"validity" in his second report55 presented to the Com-mission in 1963, but in that report he suggested thatthe question ought rather to be considered in the con-text of the "application" of treaties, and the Commis-sion, without in any way prejudging its position on thepoint, decided to postpone its consideration of thequestion until its present session.56

(2) One type of case is where the parties to a latertreaty do not include all the parties to an earlier treatywith which its provisions are incompatible. The majorityof the members of the Commission who took part in thediscussion in 1963 were inclined to take the view thatleaving aside the case of conflict with a rule of juscogens, which is an independent principle governed bythe provisions of articles 37 and 45 of part II, the factthat a treaty is incompatible with the provisions of anearlier treaty binding upon some of its parties doesnot deprive the later treaty of validity; and that, ac-cordingly, this type of case raises primarily questionsof priority of application and of State responsibility.Some members, however, although agreeing that thiswas true as a general rule, were not convinced that itnecessarily held good in every case. In particular, thesemembers expressed doubts as to the validity of a treatywhich conflicts with a prior treaty neutralizing ordemilitarizing a territory or embodying a political settle-ment of general importance. During that discussionreference was also made to : (1) clauses found in certaintreaties, e.g. Article 103 of the United Nations Charter,which claim priority for their provisions over those ofany other treaty; (2) clauses found in some treatiesdealing specifically with their relation to previous trea-ties ; and (3) possible cases of conflict between treatieshaving entirely different parties. Another point men-tioned was the relation of the question of conflicts be-tween treaties to that of the modification of treaties. Theother type of case is where all the parties to the earliertreaty are also parties to the later one. The Commissionin 1963 recognized that in those cases there is always

81 See also Lord McNair, Law of Treaties (1961), chapterXIV; C. Rousseau, Principes gineraux du droit internationalpublic (1948), pp. 462-464 and 477-484; M. Lachs, Le deve-loppement et les fonctions des traites internationaux, Recueildes Cours de VAcadimie de droit international, vol. 92 (1957),pp. 315-317.


83 Yearbook of the International Law Commission, 1954,vol. IL p. 133.

** Yearbook of the International Law Commission, 1958,vol. II, pp. 27 and 41.

" Yearbook of the International Law Commission, 1963,vol. II, pp. 53-54, article 14 and commentary.

s s Ibid., p. 189, para. 15 ; see also discussion at the 685th,687th and 703rd meetings of the Commission.


a preliminary question of construction of the two trea-ties in order to determine the extent of their incom-patibility and the intentions of the parties with respectto the maintenance in force of the earlier treaty. Somemembers considered that. for this reason these casesought not to be dealt with in part II under the heading,"implied termination of treaties" but in the presentpart under the heading, "application of treaties". TheCommission, however, decided that, even if there werea preliminary question of interpretation in these cases,there was still the problem of the conditions underwhich that interpretation should be regarded as leadingto the conclusion that the treaty has been terminated,and it adopted article 41 concerning the implied termina-tion of a treaty as a result of the subsequent conclusionof another treaty wholly incompatible with it. TheCommission also decided provisionally to retain thearticle in the section dealing with termination of treatiesbut to reconsider it at the sixteenth session.57 Accord-ingly the Commission has re-examined both categoriesof conflicts between treaties in connexion with its dis-cussion of the application of treaties on the basis of afresh study by tie Special Rapporteur oriented to theapplication instead of to the validity of treaties.

(3) The question of treaties having incompatibleprovisions, considered from the point of view of "ap-plication of treaties", has close connexions both withthe provisions of articles 58 to 60 concerning the legaleffects of treaties on third States, and with articles65 to 68 concerning the modification of treaties. Thus,the principle that a treaty cannot impose obligations ona third State or deprive it of its legal rights is ofparamount importance in those cases of incompatibilitywhere the parties to the later treaty do not includeall the parties to the earlier one. As to the link withmodification of treaties, an amending instrument isfrequently another treaty the parties to which do notinclude all the parties to the earlier treaty, so that theamendment gives rise to a case of incompatible treaties.

(4) In the discussion in 1963, some members of theCommission considered that the article should empha-size the invalidity of a treaty which conflicts with ajus cogens provision.58 However, in the light of articles37 and 45, one of the two treaties will be void; andsince that treaty is not a treaty in force there can be noquestion of its application. For this reason, the Commis-sion recognized that it is unnecessary to repeat the juscogens rule in the present article, which concerns theapplication of incompatible treaties.

(5) It was also suggested, in the discussion in 1963,that the overriding character of Article 103 of the Char-ter should find expression in the article. At the presentsession the Commission, without prejudging in any waythe interpretation of Article 103 or its application by thecompetent organs of the United Nations, decided torecognize in the present article the overriding characterof Article 103 of the Charter with respect to any treatyobligations of Members, and paragraph 1 accordinglyprovides that the rules laid down in the present article

for regulating the obligations of States parties to succes-sive treaties which are incompatible with one anotherare subject to Article 103 of the Charter.

(6) Paragraph 2 concerns clauses inserted in a treatyfor the purpose of determining the relation of itsprovisions to those of other treaties entered into by thecontracting States. Some of these clauses do no morethan confirm the general rules of priority contained inparagraphs 3 and 4 of this article. Others, like para-graph 2 of article 73 of the Vienna Convention of 1963on Consular Relations,59 which recognizes the right tosupplement its provisions by bilateral agreements, merelyconfirm the legitimacy of bilateral agreements which donot derogate from the obligations of the general Con-vention. Certain types of clause may, however, influencethe operation of the general rules, and therefore requirespecial consideration. For example, a number of treatiescontain a clause in which the parties declare either thatthe treaty is not incompatible with, or that it is not toaffect, their obligations under another designated treaty.Many older treaties 60 provided that nothing containedin them was to be regarded as imposing upon the partiesobligations inconsistent with their obligations underthe Covenant of the League ; and today a similar clausegiving pre-eminence to the Charter is found in certainregional treaties.61 Other examples are: article XVIIof the Universal Copyright Convention of 1952,62

which disavows any intention to affect the provisionsof the Berne Convention for the Protection of Literaryand Artistic Works ; article 30 of the Geneva Conven-tion of 1958 on the High Seas 63 and article 73 of theVienna Convention on Consular Relations, all of whichdisavow any intention of overriding existing treaties.Such clauses, in so far as they relate to existing treatiesconcluded by the contracting States with third States,merely confirm the general rule pacta tertiis non nocent.But they may go beyond that rule because in some casesnot only do they affect the priority of the respectivetreaties as between States parties to both treaties, butthey may also concern future treaties concluded by acontracting State with a third State. They appear inany case of incompatibility to give pre-eminence to theother treaty. Accordingly, even if in particular instancesthe application of these clauses may not differ from thegeneral rules of priority set out in paragraphs 3 and 4,it is thought that they should be made the subject of aseparate rule in the present article. Paragraph 2 accord-ingly lays down that, whenever a treaty provides thatit is subject to, or is not inconsistent with, an earlier

8T Yearbook of the International Law Commission, 1963,vol. II, p. 203, para. (2).

" Ibid., pp. 198-199, commentary to article 37.

89 United Nations Conference on Consular Relations,Official Records, vol. II, p. 187.

40 See article 16 of the Statute of 1921 on the R6gime ofNavigable Waterways of International Concern (League ofNations, Treaty Series, vol. VII, p. 61); Article 4 of the Pan-American Treaty of 1936 on Good Offices and Mediation(League of Nations, Treaty Series, vol. CLXXXVHI, p. 82)and the further list of treaties cited in C. Rousseau, Principesgeneraux du droit international public (1944), pp. 789-790.

91 For example, Article 10 of the Inter-American Treatyof Reciprocal Assistance (United Nations, Treaty Series, vol. 21,p. 101).

81 United Nations, Treaty Series, vol. 216, p. 148." United Nations Conference on the Law of the Sea, 1958,

Official Records, vol. II, p. 138.


or a later treaty, the provisions of that other treatyshould prevail.

(7) Certain treaties contain a clause of the reversetype by which it is sought to give the treaty priorityover another treaty incompatible with it. One form ofsuch clause looks only to the past, and provides forthe priority of the treaty over existing treaties of thecontracting States which are incompatible with it.Another form looks only to the future, and spe-cifically requires the contracting States not to enterinto any future agreement which would be incon-sistent with its obligations under the treaty. Sometreaties, like the Statute on the Regime of NavigableWaterways of International Concern,64 contain bothforms of clause; a few, like the League Covenant(Article 20) and the United Nations Charter (Article103), contain single clauses which look both to thepast and the future. Leaving Article 103 of the Charterout of the discussion for the reasons already indicated,it is clear that quite different legal considerations applyto clauses that look to the past from those which applyto clauses that look to the future.

(8) A clause purporting to override an earlier treatypresents no difficulty when all the parties to the earliertreaty are also parties to the treaty which seeks tooverride it. As the Commission pointed out in its com-mentary to article 41,65 the parties to the earlier treatyare always competent to abrogate it, whether in wholeor in part, by concluding another treaty with that object.That being so, when they conclude a second treatyincompatible with the first, they are to be presumedto have intended to terminate the first treaty or tomodify it to the extent of the incompatibility, unlessthere is evidence of a contrary intention. Accordingly,in these cases the inclusion of a clause in the secondtreaty expressly proclaiming its priority over the firstdoes no more than confirm the absence of any contraryintention. When, on the other hand, the parties to atreaty containing a clause purporting to override anearlier treaty do not include all the parties to the earlierone, the rule pactas tertiis non nocent automatically re-stricts the legal effect of the clause. The later treaty,clause or no clause, cannot deprive a State which isnot a party thereto of its rights under the earlier treaty.It is, indeed, clear that an attempt by some parties toa treaty to deprive others of their rights under it byconcluding amongst themselves a later treaty incom-patible with those rights would constitute an infringe-ment of the earlier treaty. For this reason clauses ofthis kind are normally so framed as expressly to limittheir effects to States parties to the later treaty. ArticleXIV of the Convention of 25 May 1962 on the Liabilityof Operators of Nuclear Ships, for example, provides:

"This Convention shall supersede any InternationalConventions in force or open for signature, ratifica-tion or accession at the date on which this Conven-tion is opened for signature, but only to the extentthat such Conventions would be in conflict with it;

however, nothing in this Article shall affect theobligations of Contracting States to non-ContractingStates arising under such International Conven-tions." «6

Similarly, many treaties amending earlier treaties pro-vide for the supersession of the earlier treaty in wholeor in part, but at the same time confine the operationof the amending instrument to those States which be-come parties to it.67 The effect then is that the amend-ments come into force only for the parties to the latertreaty in their relations inter se, while the earlier treatyremains applicable in their relations with States whichare parties to the earlier but not to the later treaty. Inother words, as between two States which are partiesto both treaties, the later treaty prevails, but as betweena State party to both treaties and a State party only tothe earlier treaty, the earlier treaty prevails. These arethe rules laid down in paragraph 4 (a) and (b) of thearticle, so that the insertion of this type of clause in noway modifies the application of the normal rules.

(9) When a treaty contains a clause purporting tooverride future treaties inconsistent with it, the clausecan be of no significance if all the parties to the earliertreaty are also parties to the later one, because whenconcluding the later treaty they are fully competent toabrogate or modify the earlier treaty which they them-selves drew up. More difficult, however, and more im-portant, is the effect of such a clause in cases wherethe parties to the later treaty do not include all theparties to the earlier one. The clause in the earliertreaty may be so framed as to prohibit the partiesfrom concluding with any State whatever a treaty con-flicting with the earlier treaty ; e.g. article 2 of the Nine-Power Pact of 1922 with respect to China.68 Or it mayrefer only to agreements with third States, as in thecase of article 18 of the Statute on the Rigime ofNavigable Waterways of International Concern:

"Each of the Contracting States undertakes not togrant, either by agreement or in any other way, to anon-Contracting State treatment with regard to navi-gation over a navigable waterway of internationalconcern which, as between Contracting States, wouldbe contrary to the provisions of this Statute." 69

"* Articles 13 and 18, League of Nations, Treaty Series, vol.VTL p. 36.

" Yearbook of the International Law Commission, 1963,vol. H, p. 203.

66 American Journal of International Law, vol. 57 (1963),p. 275.

" Article 1 of all the United Nations protocols amendingLeague of Nations treaties declares: "The Parties to the presentProtocol undertake that as between themselves they will, inaccordance with the provisions of the present Protocol, attributefull legal force and effect to, and duly apply, the amendmentsto this instrument as they are set forth in the annex to thepresent Protocol". See, for example, Protocol of 1948 amend-ing the International Convention of 1928 relating to EconomicStatistics (United Nations, Treaty Series, vol. 20, p. 229);Protocol of 1953 amending the Geneva Slavery Convention of1926 (United Nations, Treaty Series, vol. 182, p. 51). Cf. alsoarticle 59 of the Geneva Convention 1949 for the Ameliorationof the Condition of the Wounded and Sick in Armed Forces inthe Field (United Nations, Treaty Series, vol. 75, p. 66).

" League of Nations, Treaty Series, vol. XXXVIII, p. 281 :"The Contracting Powers agree not to enter into any treaty,agreement, arrangement, or understanding, either with oneanother, or, individually or collectively, with any Power orPowers, which would infringe or impair the principles statedin article 1.'*

*• League of Nations, Treaty Series, vol. VII, pp. 36-61.


Or, again, the aim of the clause may be to prohibit thecontracting States from entering into agreements interse which would derogate from their general obligationsunder a convention.70 These clauses do not appear tomodify the application of the normal rules for resolvingconflicts between incompatible treaties. Some obliga-tions contained in treaties are in the nature of thingsintended to apply generally to all the parties all thetime. An obvious example is the Nuclear Test-BanTreaty, and a subsequent agreement entered into by anyindividual party contracting out of its obligations underthat Treaty would manifestly be incompatible with theTreaty. Other obligations may be of a purely recipro-cal kind, so that a bilateral treaty modifying the appli-cation of the convention inter se the Contracting Statesis compatible with its provisions. But even then theparties may in particular cases decide to establish asingle compulsive regime for matters susceptible ofbeing dealt with on a reciprocal basis, e.g., copyrightor the protection of industrial property. The chieflegal relevance of a clause asserting the priority of atreaty over subsequent treaties which conflict with ittherefore appears to be in making explicit the inten-tion of the parties to create a single "integral" or "inter-dependent" treaty regime not open to any contractingout. In short, by expressly forbidding contracting out,the clause predicates in unambiguous terms the incom-patibility with the treaty of any subsequent agreementconcluded by a party which derogates from the provi-sions of the treaty. But it is not believed that theinsertion of such a clause can in any other respect givea treaty any greater priority than attaches to it by thefact of its being earlier in point of time.

(10) Any treaty laying down "integral" or "inter-dependent " obligations not open to contracting outmust be regarded as containing an implied undertakingnot to enter into subsequent agreements with conflictwith those obligations, and some members of the Com-mission considered that this should be specifically pro-vided for in the article itself. The very fact that a Stateaccepts obligations of that nature in a treaty impliesalso its acceptance of an obligation not to concludeany subsequent agreement conflicting with the treatyexcept with the consent of the other parties. If it doesso, it violates its obligations to the other parties underthe treaty and, by reason of the rule pacta tertiis nonnocent (article 58), it cannot invoke the subsequentagreement to relieve it of its responsibility for thatviolation. In consequence, as between that State andany party to the earlier treaty which has not consentedto the later treaty, the obligations of the earlier treatyprevail. This is the normal rule of priority formulatedin paragraph 4 (!>), and the insertion of a specialclause in the earlier treaty claiming priority for itsprovisions merely confirms, and does not 'modify, theoperation of that rule. To attribute special effects to theinsertion of such a clause would lead to absurd results.

Many treaties laying down the most fundamental"integral" or "interdependent" obligations do not con-tain any explicit undertaking against contracting out orany clause claiming special priority for their provisions.The Kellogg-Briand Pact, the Genocide Convention,and the Nuclear Test-Ban Treaty are examples, andit is impossible to suppose that the absence from suchtreaties of any explicit undertaking against contractingout and of any special priority clause weakens or affectstheir impact upon a subsequent agreement which isincompatible with their provisions. Accordingly, themajority of the Commission took the view that thepresence or absence of a specific clause regarding futuretreaties has no bearing on the formulation of the rulesgoverning the priority of conflicting treaties.

(11) It follows from paragraphs (5) to (10) abovethat none of the clauses found in treaty practice assert-ing the priority of a particular treaty over other treatiesrequires special mention in the present article, apartfrom Article 103 of the Charter. Viewing the matter asone of the application of treaties in force, none of theseclauses appears to modify the operation of the normalrules of priority. The real issue is a different one —the question discussed in a preliminary way by theCommission in 1963, whether a subsequent agreementwhich conflicts with a treaty containing "interde-pendent" or "integral" type obligations is merely in-capable of being invoked against parties to the earliertreaty or whether it is wholly void. This question,which is examined in paragraphs (14) to (17) of thiscommentary, does not turn on the presence or absenceof a special clause but on the "interdependent" or" integral" character of the obligations undertaken inthe earlier treaty.71

(12) Paragraph 3 deals with cases where all theparties to a treaty, whether with or without additionalStates, enter into a later treaty which is incompatiblewith the earlier one, and from a different angle itcovers the same ground as article 41 adopted at theprevious session. The provisional decision of the Com-mission in 1963 to characterize these cases as instancesof implied termination of an earlier treaty was con-firmed by the majority of members who took part in

70 For example, article 15 of the 1883 Convention for theInternational Protection of Industrial Property (de Martens,Nouveau Recueil giniral, 2eme serie, vol. X, p. 133) ; article20, Berlin Convention of 1908 for the Protection of LiteraryProperty (de Martens, Nouveau Recueil general, 3eme serie,vol. IV, p. 590).

71 A treaty containing "interdependent type" obligations asdefined by a previous Special Rapporteur (Sir Gerald Fitz-maurice, Third Report in Yearbook of the International LawCommission, 1958, vol. II, article 19 and commentary) is onewhere the obligations of each party are only meaningful in thecontext of the corresponding obligations of every other party,so that the violation of its obligations by one party prejudicesthe treaty regime applicable between them all and not merelythe relations between the defaulting State and the other parties.Examples given by him were treaties of disarmament, treatiesprohibiting the use of particular weapons, treaties requiringabstention from fishing in certain areas or during certain sea-sons, etc. A treaty containing "integral type" obligations wasdefined by the same Special Rapporteur as one where the forceof the obligation is "self-existent, absolute and inherent foreach party and not dependent on a corresponding performanceby the others". The examples given by him were the GenocideConvention, Human Rights Conventions, the Geneva Conven-tions of 1949 on prisoners of war, etc., International LabourConventions and treaties imposing an obligation to maintaina certain regime or system in a given area, such as the regimeof the Sounds and the Belts at the entrance to the Baltic Sea.


the discussion at the present session. On the otherhand, the fact that the question of the "implied termi-nation" of the earlier treaty can be determined onlyafter ascertaining the extent of the conflict betweenthe two treaties gives these cases a certain connexionwith the present article. It therefore seems desirable tomention these cases in paragraph 3, with a cross-reference to article 41. In examining the question atthe present session the Commission felt that a minormodification to article 41 may be desirable so as totransfer cases of a partial conflict between two treatiesfrom article 41 to the present article. As adopted in1963, the opening phrase of paragraph 1 of article 41speaks of termination "in whole or in part", but thedistinction between total and partial termination (orsuspension) is not continued in the drafting of the restof the article. Some modification of the wording of therest of that article might therefore be necessary in anycase. Without deciding at this stage on the final formof article 41, opinion in the Commission inclined toaccept the view that the appropriate course would beto eliminate the words "in whole or in part" from ar-ticle 41 and to assign to article 63 cases of partialconflict in which there does not appear to be anyintention to terminate the earlier treaty. Paragraph 3therefore provides, in effect, that, where there is evi-dence of an intention that the later treaty should governthe whole matter, or where the two treaties are notcapable of being applied at the same time, article 41applies and terminates the earlier treaty, and that inother cases the earlier treaty should apply to the extentthat its provisions are not incompatible with those ofthe later treaty.

(13) Paragraph 4 deals with cases where some, butnot all, the parties to an earlier treaty are parties to alater treaty which conflicts with their obligations underthe earlier treaty. In such cases the rule pacta tertiisnon nocent precludes the later treaty from deprivingthe other parties to the earlier treaty of their rightsunder that treaty. Then, if the question is viewedsimply as one of the priority of the obligations andrights of the interested States and of State responsi-bility for breach of treaty obligations, the applicablerules appear to be fairly clear. These are the rulesformulated in paragraph 4 of this article, under which :

(a) In the relations between two States that areparties to both treaties the later treaty prevails asbeing a more recent expression of their wills in theirmutual relations, i.e., the case is governed by thesame rule as in paragraph 3.

(b) In the relations between a State that is a partyto both treaties and a State that is a party only to theearlier treaty, the earlier treaty prevails (pacta tertiisnon nocent).

(c) In the relations between a State that is a partyto both treaties and a State that is a party only to thelater treaty, the later treaty prevails.

The rules in sub-paragraphs (a) and (b) can hardlybe open to doubt, as they are the assumed basis of lawupon which many revisions of multilateral treaties, in-cluding the United Nations protocols for revising

League of Nations treaties, have taken place.72 As tosub-paragraph (c), it seems clear that a State whichhas entered into both treaties is in principle liable, asbetween itself and parties to the later treaty, for anyfailure to perform its obligations under that treaty.Paragraph 5 accordingly reserves the question of re-sponsibility incurred by a State in concluding or apply-ing a treaty the provisions of which are incompatiblewith its obligations towards another State under anothertreaty.

(14) The Commission re-examined the questionwhether all these cases should be dealt with exclusivelyas questions of priority and of State responsibility forbreach of treaty obligations, or whether in some in-stances the later treaty should be considered void. Thisquestion was discussed by the Special Rapporteur atsome length in the commentary to article 14 of hissecond report,73 where he also summarized and ex-amined the views of the two previous Special Rappor-teurs. The Commission, without adopting any positionon the detailed considerations advanced by the SpecialRapporteur, decided to include below, for purposes ofinformation, certain passages in the second report ofthe Special Rapporteur on the Law of Treaties com-menting upon this question.

" . . . Treaties today serve many different pur-poses : legislation, conveyance of territory, adminis-trative arrangement, constitution of an internationalorganization, etc., as well as purely reciprocal con-tracts ; and, even if it can be accepted that the ille-gality of a contract to break a contract is a generalprinciple of law — a point open to question — it doesnot at all follow that the principle should be appliedto treaties infringing prior treaties. The imperfectstate of international organization and the manifolduses to which treaties are put seem to make it neces-sary for the Commission to be cautious in layingdown rules which brand treaties as illegal and void.This is not to say that to enter into treaty obligationswhich infringe the rights of another State under anearlier treaty does not involve a breach of inter-national law involving legal liability to make redressto the State whose rights have been infringed. Butit is another thing to say that the second treaty isvoid for illegality and a complete nullity as betweenthe Parties to it.

"The attitude adopted by the Permanent Court inthe Oscar Chinn and European Commission of theDanube cases hardly seems consistent with the exis-tence in international law of a general doctrine invali-dating treaties entered into in violation of the provi-sions of a prior treaty. In the Oscar Chinn case 74

the earlier treaty was the General Act of Berlin of1885, which established an international regime forthe Congo Basin. That treaty contained no provisionauthorizing the conclusion of bilateral arrangementsbetween particular parties ; on the contrary it con-

72 See "Resolutions of the General Assembly concerning theLaw of Treaties " (A/CN.4/154), in Yearbook of the Inter-national Law Commission, 1963, vol. II, pp. 6-9.

TS Ibid., pp. 55-60, paras. 6-30.74 P.C.IJ. (1934), Series A/B, No. 63.


tained a provision expressly contemplating that anymodification or improvement of the Congo regimeshould be introduced by 'common accord' of thesignatory States. Nevertheless in 1919 certain of theparties to the Berlin Act, without consulting theothers, concluded the Convention of St. Germainwhereby, as between themselves, they abrogated anumber of the provisions of the Berlin Act, replacingthem with a new regime for the Congo. The Courtcontented itself with observing that, no matter whatinterest the Berlin Act might have in other respects,the Convention of St. Germain had been relied on byboth the litigating States as the source of theirobligations and must be regarded by the Court asthe treaty which it was asked to apply. Admittedly,the question of the legality of the Convention ofSt. Germain had not been raised by either party. Butthe question was dealt with at length by Judges VanEysinga and Schiicking in dissenting opinions75

and had, therefore, evidently been debated within theCourt. Moreover, these Judges had expressly takenthe position that the question of the validity orotherwise of the treaty was not one which could be-pend on whether any Government had challenged itslegality, but was a question of public order which theCourt was bound itself to examine ex officio. In thesecircumstances, it is difficult to interpret the Court'sacceptance of the Convention of St. Germain as thetreaty which it must apply, as anything other than arejection of the doctrine of the absolute invalidityof a treaty which infringes the rights of third Statesunder a prior treaty.

"The line taken by the Court in its advisoryopinion on the European Commission of the Danube 76

was much the same. The Versailles Treaty containedcertain provisions concerning the international regimefor the Danube, including provisions concerning thecomposition and powers of the European Commissionfor that river ; at the same time it looked forward tothe early conclusion of a further Convention estab-lishing a definitive status for the Danube. A furtherConvention was duly concluded, the parties to whichdid not comprise all the parties to the Treaty ofVersailles but did include all the States which wereconcerned in the dispute giving rise to the requestfor the advisory opinion. In this case the questionof the capacity of the States at the later conferenceto conclude a treaty modifying provisions of theTreaty of Versailles was raised in the argumentspresented to the Court, which pronounced as follows :

" 'In the course of the present dispute, there hasbeen much discussion as to whether the Conferencewhich framed the Definitive Statute had authorityto make any provisions modifying either the com-position or the powers and functions of the EuropeanCommission, as laid down in the Treaty of Versailles,and as to whether the meaning and the scope of therelevant provisions of both the Treaty of Versaillesand the Definitive Statute are the same or not. Butin the opinion of the Court, as all the Governments

concerned in the present dispute have signed andratified both the Treaty of Versailles and the Defini-tive Statute, they cannot, as between themselves, con-tend that some of its provisions are void as beingoutside the mandate given to the Danube Conferenceunder Article 349 of the Treaty of Versailles.'"Here again, it is difficult not to see in the Court'spronouncement a rejection of the doctrine of the ab-solute invalidity of a later treaty which infringes therights of third States under a prior treaty.78 TheMavrommatis Palestine Concessions case 79 was, it istrue, a somewhat different type of case, but it alsoappears to proceed on a basis quite inconsistent withthe idea that a later treaty will be void to the extentthat it conflicts with an earlier multilateral treaty.

"In its advisory opinion on the Austro-GermanCustoms Union 80 the Court was only called upon toconsider the compatibility of the Protocol of Viennawith the Treaty of St. Germain ; it was not asked topronounce upon the legal consequences in the eventof its being found incompatible with the earlier treaty.In two cases concerning Nicaragua's alleged violationof the prior treaty rights of Costa Rica and Salvadorby concluding the Bryan-Chamorro Pact with theUnited States, the Central American Court of Justiceconsidered itself debarred from pronouncing upon thevalidity of the later treaty in the absence of theUnited States, over which it had no jurisdiction. Ittherefore limited itself to holding that Nicaragua hadviolated her treaty obligations to the other two Statesby concluding a later inconsistent treaty with theUnited States.

"International jurisprudence is not perhaps entirelyconclusive on the question whether and, if so, inwhat circumstances, a treaty may be rendered voidby reason of its conflict with an earlier treaty.Nevertheless, it seems to the present Special Rap-porteur strongly to discourage any large notions ofa general doctrine of the nullity of treaties infringingthe provisions of earlier treaties,81 and it accordinglyalso lends point to the hesitations of Sir G. Fitz-maurice in admitting any cases of nullity where theconflict is with an earlier treaty of a 'mutualreciprocating type'.

"The two cases of nullity tentatively suggested byhim,82 . . . although they are supported by the Harvard

76 Ibid., pp. 132-136 and pp. 148-150 ; see also Judge Hursts'explicit reference to the question, pp. 122-123.

" P.C.IJ. (1927), Series B, No. 14.

" Ibid., p. 23." The more so as two Judges, Nyholm and Negulesco, took

a different line from the Court, holding that any provision ofthe Statute which conflicted with the Treaty of Versailleswould be "null"; P.C.IJ. (1927), Series B, No. 14, pp. 73and 129.

" P.CJJ. (1924), Series A, No. 2.80 Ibid. (1931), Series A/B, No. 41.*1 See G. Schwarzenberger, International Law, pp. 482-487;

see also article 18 of the Havana Convention of 1928 onTreaties (Harvard Law School, Research in International Law,part JH, Law of Treaties, p. 1207) which provided: "Two ormore States may agree that their relations are to be governedby rules other than those established in general conventionsconcluded by them with other States".

11 See paragraph 13 of the commentary to article 14 inthe present Special Rapporteur's Second Report on the Lawof Treaties, Yearbook of the International Law Commission,1963, vol. H, p. 56.


Research Draft, hardly seem consistent with theattitude of the Court in the Oscar Chinn and Euro-pean Commission of the Danube cases. In the formercase there was an express stipulation that any modi-fications of the Berlin Act should be by ' commonaccord', yet the Court considered it sufficient thatno State had challenged the Convention of St. Ger-main. It does not seem that the Court would haveadopted any different view, if the stipulation hadtaken the form of an express prohibition againstcontracting out of the treaty otherwise than by'common accord'. It is also arguable that there isimplied in every multilateral treaty an undertakingnot to violate its provisions by entering into incon-sistent bilateral agreements.83 Accordingly, it hardlyseems justifiable to provide, as a special case, thata later treaty shall be void, if it conflicts with a priortreaty which contains an express prohibition againstinconsistent bilateral agreements. An undertaking ina treaty not to enter into a conflicting treaty doesnot, it is thought, normally affect the treaty-makingcapacity of the States concerned, but merely placesthem under a contractual obligation not to exercisetheir treaty-making powers in a particular way. Abreach of this obligation engages their responsibility ;but the later treaty which they conclude is not anullity. Similarly, if the general view be adopted —as it was by the previous Special Rapporteur — thata later treaty concluded between a limited group ofthe parties to a multilateral treaty is not normallyrendered void by the fact that it conflicts withthe earlier treaty, his second tentative exception tothe rule does not appear to justify itself. This ex-ception was cases where the later treaty ' necessarilyinvolves for the parties to it action in direct breachof their obligations under the earlier treaty'. Thequestion of nullity does not arise at all unless thelater treaty materially conflicts with the obligationsof the parties under the earlier treaty. Can it makeany difference whether the infringement of thoseobligations is direct or indirect, if it is the logicaleffect of the later treaty? Of course, if the latertreaty is susceptible of different interpretations oris capable of performance in different ways, it maynot be possible to know whether there is any conflictwith the earlier treaty until the later treaty has beeninterpreted and applied by the States concerned. Butif it is in fact interpreted and applied in a mannerwhich violates the earlier treaty, can it reasonably bedifferentiated from a treaty whose terms unambi-guously violate the earlier treaty ?"

(15) A number of precedents in State practice withregard to the modification of treaties appear to supportthe relativity of obligations principle applied by theCourt in the cases examined in the above passages ofthe Special Rapporteur's second report. Furthermore,as a previous Special Rapporteur pointed out,84 chainsof multilateral treaties dealing with the same subject-matter are extremely common, and are based on the

IS See the general discussion of this point in paragraph (10)above.

"* Sir Gerald Fitzmaurice, Third Report, Yearbook of theInternational Law Commission, 1958, vol. II, p. 43, para. 88.

assumed possibility of some of the parties to a treatyconcluding a new treaty modifying or superseding theearlier one in their relations inter se, while leaving itin force with respect to States which do not becomeparties to the new treaty. It is the exception ratherthan the rule for all the parties to the first treaty tobecome parties to the revising instrument, and untilthe state of international relations permits a muchlarger acceptance of majority decisions, the inter seprinciple is likely to remain an essential instrumentfor bringing treaty situations up to date. Moreover,multilateral treaties creating "interdependent" or"integral" type obligations are the very classes oftreaty in which a "chain" of instruments is found, e.g.the Hague Conventions on the rules of warfare, theGeneva Conventions on prisoners of war, etc., the"river" conventions and large numbers of technicalconventions. Accordingly, it seemed to the majority ofthe members of the Commission necessary to be cau-tious in proclaiming the absolute nullity of any typeof agreement purely on the ground of its conflict withan earlier one.

(16) The nullity of a treaty may result from a lackof competence of the parties to conclude it. If in anygiven case such a lack of competence results from theconclusion of a prior treaty, it is thought that it willbe because of the particular subject-matter of the ob-ligations and not because of their "integral" or "inter-dependent" character alone. "Integral" or "interde-pendent" obligations may vary widely in importance.Some, although important enough in their own spheres,may deal with essentially technical matters ; while othersdeal with matters of vital public concern, such as themaintenance of peace, nuclear tests, traffic in womenand children, or in narcotics. Some of the rules laiddown in treaties touching these matters may be of ajus cogens character, and the Commission has madespecific provision in articles 37 and 45 for the nullityof treaties which conflict with such rules. The majorityof the members of the Commission felt that it wouldbe undesirable to go beyond that. Paragraph 4 of thepresent article is therefore based on the relative priority,rather than the nullity, of the conflicting treaties, andparagraph 5, as stated, reserves all question of Stateresponsibility. To draw up the article in this way isnot to condone the conclusion of a treaty the effectof which is to violate obligations under an earlier treaty ;nor is it to authorize departures from the rules con-cerning the consents required for the modification oftreaties, as specified in articles 65 to 68. If a State inconcluding a treaty sets aside its obligations to anotherState under an earlier treaty without the latter's con-sent, it engages its international responsibility for thebreach of the earlier treaty. But it is believed that inthe present condition of international law the matteris to be resolved on the plane of State responsibilityand not of the competence of the offending State.

(17) Accordingly, no exceptions to the rules statedin paragraph 4 are provided, other than the generalexceptions of conflict with a rule of jus cogens andconflict with an obligation of Members of the UnitedNations under the Charter. Paragraph 5, however,underlines that even if a later treaty may under these


rules be valid and prevail in the relations of the partiesto that treaty, it does not mean that they may not beliable under the principle of State responsibility forany breach of their obligations under another treatywhich the conclusion or application of the later treatymay involve.

Article 64. The effect of severance ofdiplomatic relations on the application of treaties

1. The severance of diplomatic relations betweenparties to a treaty does not affect the legal relationsbetween them established by the treaty.

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

3. Under the conditions specified in article 46, if thedisappearance of such means relates to particular clausesof the treaty, the severance of diplomatic relations maybe invoked as a ground for suspending the operationof those clauses only.

Commentary

(1) This article contemplates only the situationwhich arises when diplomatic relations are severedbetween two parties to a treaty, whether bilateral ormultilateral, between which normal diplomatic relationshad previously subsisted. For the reasons stated inparagraph 14 of the Commission's report for 1963,85

the question of the effect upon treaties of the outbreakof hostilities — which may obviously be a case whendiplomatic relations are severed — is not being includedin the draft articles on the law of treaties. Similarly,any problems that may arise in the sphere of treatiesfrom the absence of recognition of a government donot appear to be such as should be covered in a state-ment of the general law of treaties. It is thought moreappropriate to deal with them in the context of othertopics with which they are closely related, either suc-cession of States and Governments, which is excludedfrom the present discussion for the reasons indicatedin paragraph 18 above, or recognition of States andGovernments, which the Commission, in 1949, decidedto include in its provisional list of topics selected forcodification.86

(2) There is wide support for the general proposi-tion that the severance of diplomatic relations does notin itself lead to the termination of treaty relationshipsbetween the States concerned.87 The Commission itself,in 1963, was disinclined to deal with this matter in


88 Yearbook of the International Law Commission, 1949,p. 281.

87 Cf. Sir Gerald Fitzmaurice, Second Report on the Law ofTreaties, article 5 (iii) and para. 34 of the commentary, Year-book of the International Law Commission, 1957, vol. II, p. 42 ;and Fourth Report on the Law of Treaties, article 4, Yearbookof the International Law Commission, 1959, vol. II, p. 54.

the context of the termination of treaties,88 and thisposition corresponds with that of many authorities whodo not include the severance of diplomatic relationsin their discussion of the grounds for the terminationor suspension of the operation of treaties.89 That thebreaking off of diplomatic relations does not as suchaffect the operation of the rules of law dealing withother aspects of international intercourse is indeedrecognized in article 2, paragraph 3, of the ViennaConvention on Consular Relations, 1963, which pro-vides : "The severance of diplomatic relations shall notipso facto involve the severance of consular relations" ;while the Vienna Convention on Diplomatic Relationsof 1961 contains an article — article 45 — dealingspecifically with the rights and obligations of the partiesin the event that diplomatic relations are broken off. Ittherefore seems correct to state that in principle themere breaking off of diplomatic relations does not ofitself affect the continuance in force of the treaty, or thecontinuance of the obligation of the parties to apply itin accordance with the rule pacta servanda sunt.

(3) On the other hand, the effect of the severanceof diplomatic relations on the continued operation ofthe treaty has to be considered in the light of thedecisions already reached by the Commission on thetermination and suspension of the operation of treaties.In those cases where the execution of the treaty isdependent upon the uninterrupted maintenance of diplo-matic relations between the parties the question of thetermination or of the suspension of the operation ofthe treaty clearly arises.90 It is sometimes suggestedthat in practice difficulties in implementing the treatycould be overcome by using the good offices of anotherState or by appointing a protecting State. No doubtin many cases this might be so. But a State does notappear to be under any obligation to accept the goodoffices of another State, or to recognize the nominationof a.protecting State in the event of a severance ofdiplomatic relations ; and articles 45 and 46 of theVienna Convention on Diplomatic Relations of 1961expressly require the consent of the receiving State ineither case. Furthermore, that Convention does notdefine what is included within the scope of the pro-tection of the interests of a third State. It thereforeseems necessary to recognize that cases of superveningimpossibility of performance leading to the temporarysuspension of the operation of the treaty may occurin consequence of the severance of diplomatic relations.

(4) The Commission was accordingly agreed that, ifthe severance of the diplomatic relations does not ofitself terminate the treaty relationships, it could never-theless produce cases of supervening impossibility ofperformance leading to the temporary suspension of the

88 Yearbook of the International Law Commission, 1963,vol. I, 697th meeting, p . 161, para . 56.

89 Included in this category a re C . Rousseau, Principes gene-raux du droit international public, t ome I ( 1 9 4 4 ) ; Academyof Sciences of the USSR, Insti tute of State and Law, Inter-national Law ( 1 9 6 1 ) ; the Amer i can L a w Insti tute, Resta tementof the Law, The Foreign Relations Law of the United States,proposed official draft (1962).

90 Ha rva rd L a w School, Research in International Law, III,Law of Treaties, pp . 1055 -1066 ; and cf. Lord McNai r , L a w ofTreat ies (1961), pp . 672-676.


operation of a treaty. Some members of the Commis-sion considered that, since the severance of diplomaticrelations indicated an abnormal state of political rela-tions between the two countries concerned, a criterionmay also be found in the nature of the treaty ; the con-tinued implementation of certain treaties, according tothose members, would be incompatible with the sever-ance of diplomatic relations. The view which prevailed,however, was that the situation was analogous to thatcovered by article 43, paragraph 2, and article 54, ofpart II, dealing respectively with supervening impos-sibility of performance and the legal consequences ofthe suspension of the operation of a treaty.

(5) Paragraph 1 accordingly provides, following thelanguage of article 54, paragraph 1 (ft), that the sever-ance of diplomatic relations between parties to a treatydoes not affect the legal relations between them estab-lished by the treaty. The expression "severance ofdiplomatic relations", which appears in article 41 ofthe Charter and in article 2, paragraph 3, of the ViennaConvention on Consular Relations, 1963, is used inpreference to the expression "breaking off of diplomaticrelations" found in article 45 of the Vienna Conven-tion of 1961 on Diplomatic Relations. Paragraph 2provides that the severance of diplomatic relations maybe invoked as a ground for suspending the operation ofa treaty if, but only if, it results in the disappearanceof the means necessary for the application of the treaty— above all where the application of the treaty is de-pendent upon the existence of the diplomatic channels.Paragraph 3 applies the principle of the separability oftreaty provisions as set forth in article 46 of part II,to cases of severance of diplomatic relations. In otherwords, if the absence of diplomatic relations frustratesthe execution only of a particular provision which isseparable from the remainder of the treaty under theconditions laid down in that article, it is that provi-sion only the operation of which will be suspended bythe severance of diplomatic relations.

Section II: Modification of treaties

Article 65. Procedure for amending treaties

A treaty may be amended by agreement betweenthe parties. If it is in writing, the rules laid down inpart I apply to such agreement except in so far as thetreaty or the established rules of an internationalorganization may otherwise provide.

Article 66. Amendment of multilateral treaties

1. Whenever it is proposed that a multilateral treatyshould be amended in relation to all the parties, everyparty has the right to have the proposal communicatedto it, and, subject to the provisions of the treaty orthe established rules of an international organization:

(a) To take part in the decision as to the action, ifany, to be taken in regard to it;

(b) To take part hi the conclusion of any agree-ment for the amendment of the treaty.

2. Unless otherwise provided by the treaty or bythe established rules of an international organization:

(a) An agreement amending a treaty does not bindany party to the treaty which does not become aparty to such agreement;

(b) The effect of the amending agreement is gover-ned by article 63.

3. The application of an amending agreement asbetween the States which become parties thereto maynot be invoked by any other party to the treaty as abreach of the treaty if such party signed the text ofthe amending agreement or has otherwise clearly indica-ted that it did not oppose the amendment.

Commentary

(1) A number of the rules contained in articlesadopted by the Commission touch one aspect oranother of the modification of treaties. The right ofdenunciation or withdrawal dealt with in articles 38and 39 furnishes a means by which a party may applypressure for the amendment of a treaty which it con-siders to be out of date or defective. The provisions ofarticles 43 and 44 regarding the termination of treatyclauses by reason of a supervening impossibility of per-formance or a fundamental change of circumstancesmay, under the principle of separability laid down inarticle 46, have the effect of modifying a treaty. Article58 protects a State from having its rights under a treatymodified by a later treaty unless it is a party to thelater treaty or has consented to the modification inquestion. Article 61 contemplates that in certain spe-cial cases a State not a party to a treaty may be en-titled to be consulted with regard to the amendmentof particular provisions which create legal rights in itsfavour. Even more important, however, are articles 41and 63, which deal with the effect of a later treatyupon an earlier treaty covering the same subject-matter;for this is precisely the situation which exists when atreaty is concluded, either between all or some of theparties to an earlier treaty, for the purpose of amendingor modifying the earlier treaty. Article 41 contemplatescases where there is an implied termination of the earliertreaty, while article 65 provides for the relative priorityof the treaties as between the parties to them, in caseswhere the earlier treaty is not to be considered ashaving been terminated under article 41.

(2) Some of the substantive aspects of the modifica-tion of treaties are thus covered by the above-mentionedarticles ; and, since the means for carrying out thedeliberate amendment of a treaty is a new treaty, theprocedural aspects are largely covered by the provi-sions of part I relating to the conclusion, entry intoforce and registration of treaties. The only question,therefore, for the Commission's consideration waswhether there are any rules specifically concerned withthe modification of treaties which require to be givena place in the draft articles.

(3) Most jurists appear to take the view that, how-ever desirable it may be for orderly processes formodifying treaties to be developed, the modification of


treaties is still essentially a political process. Onemodem text-book, for example, states:

"As a question of law, there is not much to besaid upon the revision of treaties. It frequentlyhappens that a change in circumstances may inducea Government on political grounds to accede to therequest of another Government for the terminationof a treaty and for. its revision in the light of newcircumstances. But, as a matter of principle, no Statehas a legal right to demand the revision of a treatyin the absence of some provision to that effect con-tained in that treaty or in some other treaty to whichit is a party; a revised treaty is a new treaty, and,subject to the same limitation, no State is legallyobliged to conclude a treaty.

"Accordingly, treaty revision is a matter for politicsand diplomacy . . . ".91

A similar emphasis on the political character of theprocess of the amendment of treaties is to be foundamongst members of a Committee of the Institute ofInternational Law which examined the modification ofcollective treaties in I960.92 Members of this Commit-tee, while stressing the importance of inserting in multi-lateral treaties appropriate legal provisions to facilitatetheir future amendment, showed no disposition to recog-nize any specific rules regarding the process of amend-ment in international law. The Covenant of the Leagueof Nations provided in Article 19 that the Assemblymight "from time to time advise the reconsideration byMembers of the League of treaties which have becomeinapplicable and the consideration of international con-ditions whose continuance might endanger the peace ofthe world". But, although much was said and writtenduring the League period concerning the importanceof providing for the peaceful change of out-of-date orburdensome treaties, Article 19 was practically a dead-letter. As to the Charter, if Article 14 contains a generalprovision empowering the General Assembly to considermeasures for the peaceful adjustment of any situationregardless of its origin, there is no mention of themodification of treaties as a specific function of theUnited Nations.93

(4) Nevertheless, the development of internationalorganization and the tremendous increase in multilateraltreaty-making has made a considerable impact on theprocess of amending treaties. In the first place, theamendment of many multilateral treaties is now amatter which concerns an international organization.This is clearly the case where the treaty is the consti-tuent instrument of an organization or where thetreaty, like the international labour conventions, isdrawn up within an organization. But it is also to

91 Lord McNair, Law of Treaties (1961), p. 534.•* Annuaire de Vlnstitut de droit international, vol. 49, tome

1 (1961), pp. 229-291." In this connexion it may be recalled that the Commission

at its fifteenth session in 1963 suggested that the GeneralAssembly should take the necessary steps to initiate an examina-tion of general multilateral treaties concluded under the auspicesof the League of Nations with a view to determining whataction might be necessary to adapt them to contemporary con-ditions. Yearbook of the International Law Commission, 1963,vol. II, p. 223, para. 50 (c).

some extent the case where the treaty is concludedunder the auspices of an organization and the sec-retariat of the organization is made the depositaryfor executing its procedural provisions. In all thesecases the drawing up of an amending instrument iscaught up in the machinery of the organization or inthe functions of the depositary. As a result, the rightof each party to be consulted with regard to the amend-ment or revision of the treaty is largely safeguarded.In the second place, the proliferation of multilateraltreaties has led to an increased awareness of the im-portance of making provision in advance, in the treatyitself, for the possibility of its future amendment.94 Inthe third place, the growth of multilateral treaties havinga very large number of parties has made it virtuallyimpossible to limit the amending process to amendmentsbrought into force by an agreement entered into byall the parties to the original treaty; and has led to anincreasing practice, especially in the case of technicalconventions, of bringing amending agreements intoforce as between those States willing to accept theamendment while at the same time leaving the existingregime in force with respect to the other parties tothe earlier treaty.95 Thus, in 1906 the Geneva Con-vention of 1864 for the Amelioration of the Conditionof Wounded in Armies in the Field was revised by anew Convention which expressly provided that, whenduly ratified, it should supersede the 1864 Conventionin the relations between the contracting States, butthat the 1864 Convention should remain in force in therelations of parties to that Convention who did notratify the new Convention. A similar provision wasinserted in the Hague Convention of 1907 on the Lawsand Customs of War on Land, which revised the earlierConvention of 1899. There are numerous later ex-amples of the same technique, notably the UnitedNations protocols revising certain League of Nationsconventions.

(5) Some treaties contain clauses for the amendmentand clauses for the revision of treaties,96 the formerterm being used for changing individual provisions ofthe treaty and the latter for a general review of thewhole treaty. If this phraseology has a certain con-venience, it is not one which is found uniformly inState practice, and there does not appear to be anydifference in the legal process. The Commission there-fore considered it sufficient in the present articles tospeak of "amendment" as being a term which coversboth the amendment of particular provisions and ageneral review of the whole treaty.97 As to the term" revision ", the Commission recognized that it is theterm commonly found in State practice and that it isalso used in some treaties. Nevertheless, having regardto the nuances that became attached to the phrase"revision of treaties" in the period preceding the Second

94 Annuaire de Vlnstitut de droit international, vol. 49, tome1 (1961), pp. 95-153.

90 E. C. Hoyt, The Unanimity Rule in the Revision ofTreaties (1959), pp. 28-51.

98 Articles 108 and 109 of the Charter; see also Handbookof Final Clauses (ST/LEG/6), pp. 130 and 150.

97 Thus, while Chapter XVIII of the Charter is entitled"Amendments", Article 109 speaks of "reviewing" the Charter.


World War, the Commission preferred the term"amendment". The more general term "modification"is used in article 69, which deals with inter se agree-ments, to cover transactions which may vary the treatybetween certain of the parties only.

(6) Amendment clauses found in multilateral treatiestake a great variety of forms, as appears from theexamples given in the Handbook of Final Clauses 98 andfrom a recent analysis of amendment clauses in a reportto the Institute of International Law." Despite theirvariety, many amendment clauses are far from dealingcomprehensively with the legal aspects of revision.100

Some, for example, merely specify the conditions underwhich a proposal for amendment may be put forward,without providing for the procedure for consideringit. Others, while also specifying the procedure for con-sidering a proposal, do not deal with the conditionsunder which an amendment may be adopted and comeinto force, or do not define the exact effect on the partiesto the existing treaty. As to clauses regarding the adop-tion and entry into force of an amendment, some requireits acceptance by all the parties to the treaty, but manyadmit some form of qualified majority as sufficient. Ingeneral, the variety of the clauses makes it difficult todeduce from treaty practice the development of detailedcustomary rules regarding the amendment of multi-lateral treaties; and the Commission did not thereforethink that it would be appropriate for it to try and framea comprehensive code of rules regarding the amendmentof treaties. On the other hand, it seemed to the Com-mission desirable that the draft articles should includea formulation of certain general rules concerning theprocess of amendment and the use of inter se agree-ments. These general rules are contained in the twoarticles here under consideration and in article 67,while article 68 deals with certain special cases of themodification of treaties.

Article 65

(7) Article 65 specifies the process by which amend-ment takes place: a treaty may be amended by agree-ment between the parties and, if the agreement is inwriting, the rules laid down in part I apply to it exceptin so far as the treaty or the established rules of aninternational organization may otherwise provide. Hav-ing regard to the modern practice of amending multi-lateral treaties by another multilateral treaty whichcomes into force for those States which ratify it orotherwise become bound by it, the Commission did notspecify that the agreement must be between all theparties, as in the case of termination of a treaty underarticle 40. It felt that the procedure for the adoptionof the text and the entry into force of the amendingagreement should be governed by articles 6, 23 and 24of part I. On the other hand, it sought in article 66 tolay down strict rules guaranteeing the right of eachparty to participate in the process of amendment. Theamendment of a treaty is normally effected through the

98 ST/LEG/6, pp. 130-152.98 E. Giraud, Annuaire de Ylnstitut de droit international,

vol. 49, tome 1 C1961), pp. 95-103.100 C. W. Jenks, ibid., pp. 254-264.

conclusion of another treaty in written form. However,the Commission recognized that amendment sometimestakes place by oral agreement or by an agreementarrived at tacitly in the application of the treaty. Ac-cordingly, in stating that the rules in part I concerningthe conclusion, entry into force and registration oftreaties apply to amending agreements, article 65 exceptsoral agreements from that provision since they fall out-side those rules. It further qualifies that provision "inso far as the treaty or the established rules of an inter-national organization may otherwise provide". This is totake account, first, of the growing practice of includingspecial provisions in multilateral treaties regarding theirfuture amendment and, secondly, of the fact that theconstituent instrument or the established practice ofmany international organizations lays down special rulesregarding the amendment either of the constituentinstrument or of treaties concluded within theorganization.

Article 66

(8) This article deals with the complex process ofthe amendment of multilateral treaties. The Commis-sion considered whether to formulate any rule specifi-cally for bilateral treaties, but concluded that it wouldnot serve any useful purpose. Where only two partiesare involved, the question is essentially one of negotia-tion and agreement between them, and the rules con-tained in parts I and II appear to suffice to regulatethe procedure and to protect the positions of the in-dividual parties. Moreover, although the Commissionwas of the opinion that a party is under a certain obliga-tion of good faith to give due consideration to a proposalfrom the other party for the amendment of a treaty,it felt that such a principle would be difficult to formu-late as a legal rule without opening the door to arbitrarydenunciations of treaties on the pretended ground thatthe other party had not given serious attention to aproposal for amendment.

(9) Article 66 is concerned only with the amend-ment stricto sensu of multilateral treaties, that is, withtransactions designed to alter provisions of a treatywith respect to all its parties. The intention is to drawup an agreement between the parties generally formodifying the operation of the treaty between themall and not to draw up an agreement between certainparties only for the purpose of modifying its operationbetween themselves alone. The Commission recognizedthat an amending instrument drawn up between theparties generally may not infrequently come into forceonly with respect to some of them, owing to the failureof the others to proceed to ratification, acceptance orapproval of the instrument. Nevertheless, it consideredthat there is an essential difference between amendingagreements designed to amend a treaty between theparties generally and agreements designed ab initio tomodify the operation of the treaty as between certainof the parties only, that is, as inter se agreements.Although an amending instrument may equally turn outto operate only between certain of the parties, the Com-mission considered that a clear-cut distinction must bemade between the amendment process stricto sensu and


inter se agreements modifying the operation of thetreaty between a restricted circle of the parties. Forthis reason, inter se agreements are dealt with separatelyin article 67, while the opening words of the presentarticle underline that it is concerned only with proposalsto amend the treaty as between all the parties.

(10) Paragraph 1 provides that every party to amultilateral treaty has the right to be informed of anyproposal for its amendment, to take part in the decisionas to the action, if any, to be taken in regard to theproposal, and to take part in the conclusion of anyagreement designed to amend the treaty. Treaties haveoften in the past been amended or revised by certainof the parties without consultation with the others.101

This has led one recent writer102 to state: " Thoughthey must be consulted if they are to be bound by anew agreement, the parties to a treaty have no generalright to take part in all negotiations respecting revision.The question of which States should be invited to joinin discussions of revision is practical rather than legal."Endorsing this conclusion, another authoritylos has said:" Practice does not indicate that all the parties to anearlier treaty have any general right to take part innegotiations respecting revision, although they cannotbe bound by some new treaty concluded without theirparticipation or consent." Another recent writer 104 hasindependently arrived at a similar conclusion: " Thus,there is no legal obligation to invite all the originalparties to a preparatory conference for a new treaty.Such a rule, if it existed, might be a powerful instru-ment for preventing disputes, but it would also be aformidable factor of stagnation." Although recognizingthat instances have been common enough in whichindividual parties to a treaty have not been consultedin regard to its revision, the Commission does not thinkthat the State practice leads to the conclusion reachedby these writers or that the view expressed by themshould be the one adopted by the Commission.

(11) If a group of parties has sometimes succeededin effecting an amendment of a treaty regime withoutconsulting the other parties, equally States left out ofsuch a transaction have from time to time reacted againstthe failure to bring them into consultation as a violationof their rights as parties.105 Moreover, there are alsonumerous cases where the parties have, as a matter ofcourse, all been consulted. A refusal to bring a par-ticular party or parties into consultation has usuallybeen a political decision taken on political grounds andthe question whether it was legally justified in theparticular case has been left unresolved. The Commis-sion, however, considers that the very nature of the

101 Well-known examples are the Conventions of 1923, 1928and 1956 dealing with the status of Tangier, the revision ofthe Acts of Berlin (1885) and Brussels (1890) by the Treatyof St. Germain, the revision of the Treaty of Lausanne (1923)by the Montreux Convention (1936).

102 E. C. Hoyt, The Unanimity Rule in the Revision ofTreaties (1959), p. 250.

108 P. C. Jessup, in a foreword to E. C. Hoyt's book, at p.

vn.104 Jean Leca, Les Techniques de revision des conventions

internationales (1961), p. 204.a0B e.g., Italy, the Soviet Union, Sweden, Spain, at various

times in regard to the revision of one of the Tangier treaties.

legal relation established by a treaty requires that everyparty should be consulted in regard to any amendmentor revision of the treaty. The fact that this has notalways happened in the past is not a sufficient reasonfor setting aside a principle which seems to flow directlyfrom the obligation assumed by the parties to performthe treaty in good faith. There may be special circum-stances when it is justifiable not to bring a particularparty into consultation, as in the case of an aggressor.But the general rule is believed to be that every partyis entitled to be brought into consultation with regardto an amendment of the treaty; and paragraph 1 ofarticle 66 so states the law.

(12) Paragraph 2 (a) is an application to amendinginstruments of the general rule in article 58 that a treatydoes not impose any obligations upon a State not aparty to it. Nevertheless, without this paragraph thequestion might be left open as to whether by its verynature an instrument amending a prior treaty has legaleffects for parties to the treaty. Furthermore, the generalrule in article 58 is sometimes displaced by a differentprovision laid down in the original treaty or by a con-trary rule applied to treaties concluded within a par-ticular international organization.106 Article 3 of theGeneva Convention on Road Traffic (1949),107 for ex-ample, provides that any amendment adopted by a two-thirds majority of a conference shall come into force forall parties except those which make a declaration thatthey do not adopt the amendment. Article 16 of the In-ternational Convention to Facilitate the Crossing ofFrontiers for Goods Carried by Rail provides for amend-ments to come into force for all parties unless it is ob-jected to by at least one-third. Article 52 of the IMCOConstitution contains a provision similar to that in theRoad Traffic Convention as does also article 22 of theWHO Constitution for regulations adopted by theWHO Assembly. Paragraph 2 (a) therefore states thatan amending instrument is not binding on a partywhich has not become a party to it unless a differentrule is laid down by the treaty or by the establishedrules of an international organization. Paragraph 2(b) then provides that the legal effect of amendingagreements is governed by the rules regarding the ap-plication of treaties having incompatible provisions con-tained in article 63. Under modern treaty practice, aspreviously stated, it not infrequently happens that anamending agreement is not ratified by all the parties tothe treaty. In that event, there will be two treaties inexistence at the same time the provisions of which, exhypothesi, are incompatible and the parties to which arenot identical. This is precisely the situation to whichparagraphs 4 and 5 of article 63 apply. On the otherhand, if all the parties to the treaty become parties alsoto the amending agreement, then the case will fall underparagraph 3 of that article.

(13) Paragraph 3 deals with the cases, mentionedin previous paragraphs as common in practice, wherean agreement, drawn up for the purpose of amendinga multilateral treaty generally between the parties, is

106 See the Handbook of Final Clauses ( S T / L E G / 6 ) , pp .135-148 ; E. Giraud, Annuaire de Vlnstitut de droit interna-tional, vol. 49, tome 1 (1961), pp. 139-149.

107 United Nations, Treaty Series, vol. 125, p . 22.


ratified only by some of them and does not come intoforce for the others. In principle — and this is recog-nized in article 63 — when States enter into treaties theprovisions of which are incompatible with their obliga-tions under a prior treaty, a question of State respon-sibility may arise. On the other hand, if a party, havingbeen duly consulted under paragraph 1 of the presentarticle concerning a proposal to amend the treaty, after-wards signs the text of the amending agreement orotherwise clearly indicates that it does not oppose theamendment, it would hardly seem to be entitled after-wards to allege that the bringing into force of theamendment between the States accepting it is a breachof the treaty. Some members hesitated to lay down aspecific rule on the point suggesting that the point couldbe left to be settled on the facts of each case by refer-ence to the general principle Nemo potest venire contrafactum proprium. The majority, however, consideredthat the inclusion of a specific provision was desirablehaving regard to the extent and importance of themodern practice under which an agreement amending amultilateral treaty comes into force between the Statesaccepting it, while the original treaty is left in forceunamended in the relations of those States which donot become parties to it. Paragraph 3 therefore providesthat a party to a treaty which signs the text of anamending instrument or otherwise clearly indicates thatit does not oppose the amendment may not afterwardscomplain of a breach of the treaty because of the amend-ment being brought into force between the partiesratifying the amending instrument. The object of theprovision is to put into the form of a rule what appearsto the majority of the Commission to be the existingunderstanding in regard to the practice in questionand to protect in such cases the position of partieswhich in good faith ratify the amending agreement. Theprovision does not in any other respect affect the rightsof a State which does not accept the amendment. Thetreaty remains in force for it unamended in its rela-tions with all the original parties, including those whohave accepted the amendment. It may still invoke itsrights under the earlier treaty. It is precluded onlyfrom contesting the right of the other parties to bringthe amendment into force as between themselves.

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

1. Two or more of the parties to a multilateral treatymay enter into an agreement to modify the treaty asbetween themselves alone if:

(a) The possibility of such agreements is providedfor by the treaty; or

(b) The modification in question :(i) Does not affect the enjoyment by the other

parties of their rights under the treaty or theperformance of their obligations ;

(ii) Does not relate to a provision derogationfrom which is incompatible with the effectiveexecution of the objects and purposes of thetreaty as a whole; and

(iii) Is not prohibited by the treaty.

2. Except in a case falling under paragraph 1 (a),the conclusion of any such agreement shall be notified tothe other parties to the treaty.

Commentary

(1) This article, as already explained in the com-mentary to articles 65 and 66, deals not with " amend-ment " of treaties but with " inter se agreements " ; thatis, with agreements entered into by some only of theparties to a multilateral treaty and designed ab initioto modify it between themselves alone. Clearly, a trans-action in which two or a small group of parties set outto modify the treaty between themselves alone withoutgiving the other parties the option of participating in itis on a somewhat different footing from an amendingagreement drawn up between the parties generally,even if ultimately they do not all ratify it. For an interse agreement is more likely to have an aim and effectincompatible with the object and purpose of the treaty.History furnishes a number of instances of inter seagreements which substantially changed the regimeof the treaty and which overrode the objections ofinterested States. Nor can there be any doubt that theapplication, and even the conclusion, of an interse agreement incompatible with the objects and pur-poses of the treaty may raise a question of State re-sponsibility. Under the present article, therefore, themain issue is the conditions under which inter se agree-ments may be regarded as permissible.

(2) Paragraph 1 (a) first states the obvious principlethat an inter se agreement is permissible if the pos-sibility of such an agreement was provided for in thetreaty; in other words, if " contracting out" was con-templated in the treaty. Then, under paragraph 1 (b),inter se agreements are stated to be permissible inother cases only if three conditions are fulfilled. First,the modification must not affect the enjoyment of therights or the performance of the obligations of the otherparties ; that is, it must not prejudice their rights oradd to their burdens. Secondly, it must not relate to aprovision derogation from which is incompatible withthe effective execution of the objects and purposes of thetreaty; for example, an inter se agreement modifyingsubstantive provisions of a disarmament or neutraliza-tion treaty would be incompatible with its objects andpurposes and not permissible under the present article.Thirdly, the modification must not be one prohibitedby the treaty, as for example the prohibition on con-tracting out contained in article 20 of the BerlinConvention of 1908 for the Protection of LiteraryProperty. These conditions are not alternative, butcumulative. The second and third conditions, it is true,overlap to some extent since an inter se agreement in-compatible with the objects and purposes of the treatymay be said to be impliedly prohibited by the treaty.Nevertheless, the Commission thought it desirable forthe principle contained in the second condition to bestated separately; and it is always possible that theparties themselves might explicitly forbid any inter semodifications, thus excluding even minor modificationsnot caught by the second condition.

(3) Paragraph 2 seeks to add a further protection


to the parties against illegitimate modifications of thetreaty by some of the parties through an inter se agree-ment. Unless the treaty itself provides for the possibilityof inter se agreements, the conclusion of an inter seagreement modifying a multilateral treaty between someonly of the parties is required by paragraph 2 to benotified to other parties. The Commission was of theopinion that such notification is necessary if the rightsof the other parties are to be adequately safeguarded.It recognized that an amending agreement would in duecourse have to be registered and published. But in mostcases there is a considerable time lag before publica-tion of a treaty in the United Nations Treaty Seriestakes place. Indeed, some members would have pre-ferred paragraph 2 to be so worded as to requirenotification not of the conclusion of an inter se agree-ment but of any proposal to conclude such an agree-ment. The Commission, however, felt that timely noti-fication of the conclusion of the agreement wassufficient.

Article 68. Modification of a treatyby a subsequent treaty, by subsequent practice

or by customary law

The operation of a treaty may also be modified:(a) By a subsequent treaty between the parties

relating to the same subject matter to the extent thattheir provisions are incompatible;

(b) By subsequent practice of the parties in theapplication of the treaty establishing their agreementto an alteration or extension of its provisions; or

(c) By the subsequent emergence of a new rule ofcustomary law relating to matters dealt with hi thetreaty and binding upon all the parties.

Commentary

(1) Article 68 covers three other cases where themodification of a treaty may be brought about by thecommon consent of the parties. Paragraph (a) is thecase where the parties enter into a subsequent treaty, notdesigned as an amending agreement, but relating to thesame subject-matter and to some extent incompatiblewith the prior treaty. The second treaty, being a laterexpression of the will of the parties, prevails in accord-ance with article 63, paragraph 3, with respect to anymatter where the provisions of the two treaties arenot compatible ; and, by implication, modifies the earliertreaty to the extent of the incompatibility.

(2) Paragraph (b) is the case where the parties bycommon consent in fact apply the treaty in a mannerinconsistent with its provisions. Subsequent practice inthe application of a treaty, as stated in paragraph 13of the commentary to article 69, is decisive as to theinterpretation of a treaty when the practice is con-sistent, embraces all the parties, and shows theircommon * understanding regarding the meaning of thetreaty. Equally, a consistent practice, embracing all theparties and establishing their common consent to theapplication of the treaty in a manner different fromthat laid down in certain of its provisions, may have

the effect of modifying the treaty. In the Case con-cerning the Temple of Preah Vihear,108 for exemple,the boundary line acted on in practice was not re-conciliable with the ordinary meaning of the terms ofthe treaty, and the effect of the subsequent practice wasto amend the treaty. Again, in a recent arbitration be-tween France and the United States regarding the inter-pretation of an Air Transport Services Agreement theTribunal, speaking of the subsequent practice of theparties, said:

" This course of conduct may, in fact, be takeninto account not merely as a means useful for inter-preting the Agreement, but also as something more:that is, as a possible source of a subsequent modifica-tion, arising out of certain actions or certain attitudes,having a bearing on the juridical situation of theParties and on the rights that each of them couldproperly claim." 109

And the Tribunal in fact found that the Agreementhad been modified in a certain respect by the subse-quent practice. Although the line may sometimes beblurred between interpretation and amendment to atreaty through subsequent practice, legally the processesare quite distinct. Accordingly, the effect of subsequentpractice in amending a treaty is dealt with in thepresent article in the section on modification of treaties.

(3) Paragraph (c) is the case where a new rule ofcustomary international law emerges which relates tomatters dealt with in the treaty and is binding on allthe parties. If a treaty has to be interpreted in the lightof the general rules of international law in force at thetime of its conclusion in order to establish the meaningof its terms,110 it also has at any given date to be appliedin the light of the law in force at that date. This followsfrom the principle of the so-called inter-temporal lawwhich, in the context of territorial sovereignty, JudgeHuber in the Island of Palmas arbitration formulatedas follows:

" The same principle which subjects the act creativeof a right to the law in force at the time the rightarises, demands that the existence of the right, inother words its continued manifestation, shall followthe conditions required by the evolution of thelaw."111

In the law of treaties this means that in the applica-tion of a treaty account must at any given time betaken of the " evolution of the law ". A particular in-stance of the working of this principle already appearsin article 45 of part II adopted at the fifteenth sessionunder which a treaty or some of its provisions maybecome void in consequence of the emergence of anew peremptory norm of international law. Paragraph(c) of the present article formulates the general ruleunder which a treaty may be modified by the emergence

108 I.CJ. Reports 1962, p . 6 ; and see Sir Gerald Fitzmaunce," The Law and Procedure of the International Court of Justice,1951-54 ", British Year Book of International Law, vol. 33(1957), pp. 252-253.

109 Decided at Geneva on 22 December 1963, the arbitratorsbeing R. Ago (President), P . Reuter and H. P . de Vries(mimeographed text of decisions of the Tribunal, pp. 104-105).

110 See article 69, paragraph 1 (b).111 Reports of International Arbitral Awards, vol. II, p . 845.


of a new rule of customary law affecting the scope oroperation of its provisions.

Section III. Interpretation of treaties

Article 69. General rale of interpretation

1. A treaty shall be interpreted in good faith inaccordance with the ordinary meaning to be given toeach term:

(a) In the context of the treaty and in the lightof its objects and purposes; and

(b) In the light of the rales of general internationallaw in force at the time of its conclusion.

2. The context of the treaty, for the purposes of itsinterpretation, shall be understood as comprising in ad-dition to the treaty, including its preamble and annexes,any agreement or instrument related to the treaty andreached or drawn up in connexion with its conclusion.

3. There shall also be taken into account, togetherwith the context:

(a) Any agreement between the parties regardingthe interpretation of the treaty;

(b) Any subsequent practice in the application ofthe treaty which clearly establishes the understandingof all the parties regarding its interpretation.

Article 70. Further means of interpretation

Recourse may be had to further means of interpreta-tion, including the preparatory work of the treaty andthe circumstances of its conclusion, in order to verifyor confirm the meaning resulting from the applicationof article 69, or to determine the meaning when theinterpretation according to article 69 :

(a) Leaves the meaning ambiguous or obscure; or(b) Leads to a result which is manifestly absurd

or unreasonable in the light of the objects and pur-poses of the treaty.

Article 71. Terms having a special meaning

Notwithstanding the provisions of paragraph 1 o£article 69, a meaning other than its ordinary meaningmay be given to a term if it is established conclusivelythat the parties intended the term to have that specialmeaning.

Commentary

(1) The utility and even the existence of rules ofinternational law governing the interpretation of treatieshave sometimes been questioned.112 One commentaryon the law of treaties, for example, states:

" It seems evident that the prescription in advanceof hard and fast rules of interpretation . . . contains

an element of danger which is to be avoided. In theircontext . . . the rules . . . seem eminently reasonableand convincing. The difficulty, however, is that, de-tached from that context, they still retain a certainfictitious ring of unassailable truth, and tend, as doall neatly turned maxims, to imbed themselves in themind. The resulting danger is that the interpreter,well versed in such rules, may approach his task witha mind partly made up rather than with a mind opento all evidence which may be brought before him.This is to misconceive the function of interpretation.

" The process of interpretation, rightly conceived,cannot be regarded as a mere mechanical one of draw-ing inevitable meanings from the words in a text,or of searching for and discovering some pre-existingspecific intention of the parties with respect to everysituation arising under a treaty . . . In most in-stances . . . interpretation involves giving a meaningto a text — not just any meaning which appeals tothe interpreter, to be sure, but a meaning which, inthe light of the text under consideration and of allthe concomitant circumstances of the particular caseat hand, appears in his considered judgement to beone which is logical, reasonable, and most likely toaccord with and to effectuate the larger general pur-pose which the parties desired the treaty to serve.This is obviously a task which calls for investigation,weighing of evidence, judgement, foresight, and anice appreciation of a number of factors varyingfrom case to case. No canons of interpretation can beof absolute and universal utility in performing sucha task, and it seems desirable that any idea that theycan be should be dispelled." U 3

Similarly, a recent book on the law of treaties states:" The many maxims and phrases which have

crystallized out and abound in the text books andelsewhere are merely prima facie guides to the in-tention of the parties and must always give way tocontrary evidence of the intention of the parties ina particular case."114

The first two11B of the Commission's Special Rap-porteurs on the law of treaties in their private writingsalso expressed doubts as to the existence in internationallaw of any technical rules for the interpretation oftreaties.

(2) Another group of writers,110 although they mayhave reservations as to the obligatory character ofcertain of the so-called canons of interpretation, haveshown less hesitation in recognizing the existence ofsome general rules for the interpretation of treaties. To

112 See Harvard Law School, Research in International Law,part III, Law of Treaties (article 19), p. 939.

118 Ibid., p. 946.114 Lord McNair, Law of Treaties (1961), p. 366.118 J. L. Brierly, Law of Nations (6th edition, 1963), p. 325.

Sir Hersch Lauterpacht, Rapport a I'Institut de droit interna-tional, Annuaire de I'Institut, vol. 43, tome 1 (1950), pp. 336-374.

116 For example, C. Rousseau, Principes generaux du droitinternational public (1944), pp. 676 et seq; Sir E. Beckett,Annuaire de I'Institut de droit international, vol. 43, tome 1(1950), pp. 435-444 ; V. M. Chourchalov, Fundamental Ques-tions in the Theory of International Law (1959), pp. 382-402;C. De Visscher, Probldmes d'interprttation judiciaire en droitinternational public (1963), pp. 50 et seq.


this group belongs Sir Gerald Fitzmaurice, the previousSpecial Rapporteur on the law of treaties, who in hisprivate writingsm deduced six principles from thejurisprudence of the Permanent Court and the Inter-national Court which he regarded as the major prin-ciples of interpretation. In 1956, the Institute of Inter-national Law 118 adopted a resolution in which it formu-lated, if in somewhat cautious language, two articlescontaining a small number of basic principles ofinterpretation.

(3) Writers also differ to some extent in their basicapproach to the interpretation of treaties according tothe relative weight which they give to :

(a) The text of the treaty as the authentic expres-sion of the intentions of the parties ;

(b) The intentions of the parties as a subjectiveelement distinct from the text; and

(c) The declared or apparent objects and purposesof the treaty. Some 110 place the main emphasis onthe intentions of the parties and in consequence admita liberal recourse to the travaux preparatoires and toother evidence of the intentions of the contractingStates as means of interpretation. Some 12° give greatweight to the objects and purposes of the treaty andare in consequence more ready, especially in the caseof general multilateral treaties, to admit teleologicalinterpretations of the text which go beyond, or evendiverge from, the original intentions of the partiesas expressed in the text. The majority of modernwriters, however, emphasize the primacy of the textas the basis for the interpretation of a treaty, whileat the same time giving a certain place to extrinsicevidence of the intentions of the parties and to theobjects and purposes of the treaty as means of inter-pretation. It is this view which is reflected in the1956 resolution of the Institute of International Lawmentioned in the previous paragraph.

(4) The great majority of cases submitted to inter-national adjudication involve the interpretation of trea-ties, and the jurisprudence of international tribunals isrich in reference to principles and maxims of inter-pretation.121 In fact, statements can be found in thedecisions of international tribunals to support the use ofalmost every principle or maxim of which use is madein national systems of law in the interpretation of

111 " The Law and Procedure of the International Court ofJustice 1951-54 ", British Year Book of International Law, vol.33 (1957), pp. 210-212.

118 Annuaire de I'Institut de droit international, vol. 46(1956), p. 359.

118 For example, Sir Hersch Lauterpacht, Annuaire deI'Institut de droit international, vol. 43, tome I (1950), pp.377-402.

110 For example, L. Cavare, he droit international publicpositif, 2nd edition (1962), vol. II, p. 112; Judge Alvarez inthe Reservations to the Genocide Convention Case, I.C.J. Re-ports 1951, p. 53.

121 See Sir Gerald Fitzmaurice, British Year Book of Inter-national Law, vol. 28 (1951), p. 1, and vol. 33 (1957), p. 203 ;C. Rousseau, Principes generaux du droit international public(1944), pp. 676-764 ; and V. D. Degan, L'interpretation desaccords en droit international (1963), pp. 76-148.

statutes and contracts.122 Treaty interpretation is, ofcourse, equally part of the everyday work of ForeignMinistries.

(5) Thus, it would be possible to find sufficient evi-dence of recourse to principles and maxims in inter-national practice to justify their inclusion in a codifica-tion of the law of treaties, if the question were simplyone of their relevance on the international plane. But,as appears from the passages cited in paragraph (1)above, the question posed by jurists is rather as to thenon-obligatory character of many of these principlesand maxims ; and it is a question which arises in nationalsystems of law no less than in international law. Theyare, for the most part, principles of logic and goodsense valuable only as guides to assist in appreciatingthe meaning which the parties may have intended toattach to the expressions that they employed in a docu-ment. Their suitability for use in any given case hingeson a variety of considerations which have first to beappreciated by the interpreter of the document; theparticular arrangement of the words and sentences, theirrelation to each other and to other parts of the docu-ment, the general nature and subject-matter of the docu-ment, the circumstances in which it was drawn up, etc.Even when a possible occasion for their application mayappear to exist, their application is not automatic butdepends on the conviction of the interpreter that it isappropriate in the particular circumstances of the case.In other words, recourse to many of these principlesis discretionary rather than obligatory and the inter-pretation of documents is to some extent an art, notan exact science.

(6) Any attempt to codify the conditions of theapplication of those principles of interpretation whoseappropriateness in any given case depends on the par-ticular context and on a subjective appreciation ofvarying circumstances would clearly be inadvisable forthe reasons given in the passage cited in paragraph (1).Accordingly the Commission confined itself to tryingto isolate and codify the comparatively few generalprinciples which appear to constitute general rules forthe interpretation of treaties. Admittedly, the task offormulating even these rules is not easy, but the Com-mission considered that there were cogent reasons whyit should be attempted. First, the interpretation of trea-ties in good faith and according to law is essential ifthe pacta sunt servanda rule is to have any real meaning.Secondly, having regard to doctrinal differences con-cerning methods of interpretation, it seems desirablethat the Commission should take a clear position inregard to the role of the text in treaty interpretation.Thirdly, a number of articles provisionally adopted bythe Commission contain phrases such as " unless a con-trary intention appears from the treaty " and the effectof these reservations cannot be properly appreciated ifno indication is given in the draft articles as to whetherthis intention must appear on the face of the text orwhether it may be established by reference to other

122 See G. Hackworth, Digest of International Law, vol. 5,pp. 232-234; C. De Visscher, Problemes d'interpritation judi-ciaire (1963), pp. 84-92 and 104-113 ; Lord McNair, Law ofTreaties (1961), chapters 20-22.


evidence. In addition, the establishment of some measureof agreement in regard to the basic rules of interpreta-tion is important not only for the application but alsofor the drafting of treaties.

(7) The Commission adopted three articles dealinggenerally with the interpretation of treaties, namelyarticles 69-71, the texts of which are set out at thehead of the present commentary,123 and two furtherarticles dealing with treaties which have plurilingualtexts (see articles 72 and 73 below). Some writers intheir exposition of the principles of treaty interpreta-tion distinguish between law-making and other trea-ties.124 It is true that the character of a treaty mayaffect the question whether the application of a par-ticular principle, maxim or method of interpretation issuitable in a particular case.125 But for the purpose offormulating the general rules of interpretation theCommission did not think it necessary to make anyother distinction between different categories of treatiesother than that between unilingual and plurilingualtreaties.126

(8) In examining the above-mentioned general rulesthe Commission considered whether the principle ex-pressed in the maxim Ut res magis valeat quam pereat,often referred to as the principle of effective inter-pretation, should be formulated as one of them.127 Itrecognized that in certain circumstances recourse to theprinciple may be appropriate and that it has sometimesbeen invoked by the Court. In the Corfu Channel case,128

for example, in interpreting a Special Agreement theCourt said:

" It would indeed be incompatible with the gen-erally accepted rules of interpretation to admit that aprovision of this sort occurring in a special agree-ment should be devoid of purport or effect."

And it referred to a previous decision of the Perma-nent Court to the same effect in the Free Zones case.129

The Commission, however, took the view that, in sofar as the maxim Ut res magis valeat quam pereatreflects a true general rule of interpretation, it is em-bodied in article 69, paragraph 1, which requires thata treaty shall be interpreted in good faith in accordance

123 See also the formulation of general rules of treaty inter-pretation by the Institute of International Law, Annuaire,vol. 46 (1956), pp. 364-365, and by Sir Gerald Fitzmaurice,British Year Book of International Law, vol. 33 (1957) pp.211-212.

"* For example C. Rousseau, Principes generaux du droitinternational public (1944), p. 677.

" • For example, the contra proferentem principle or the useof travaux priparatoires.

" • For the special problem of the effect of the subsequentpractice of an international organization on the interpretationof its constituent instrument, see paragraph (14) of the presentcommentary.

l t T See generally C. Rousseau, Principes gineraux du droitinternational public (1944), pp. 680-688 ; V. D. Degan, L'inter-pritation des accords en droit international (1963), pp. 103-106; C. De Visscher, op. cit., pp. 84-92.

l s i l.CJ. Reports 1949, p. 24.149 P.C.U. (1929), Series A, No. 22, p. 13 ; cf. Acquisition

of Polish Nationality, P.C.IJ. (1923), Series B, No. 7, pp.16-17 and The Exchange of Greek and Turkish Populations,P.GJJ. (1925), Series B, No. 10, p. 25.

with the ordinary meaning to be given to its terms inthe context of the treaty and in the light of its objectsand purposes. When a treaty is open to two inter-pretations one of which does and the other does notenable the treaty to have appropriate effects, good faithand the objects and purposes of the treaty demand thatthe former interpretation should be adopted. Properlylimited and applied, the maxim does not call for an" extensive " or " liberal " interpretation in the sense ofan interpretation going beyond what is expressed ornecessarily to be implied in the terms of the treaty.130

Accordingly, it did not seem to the Commission thatthere was any need to include a separate provision onthis point. Moreover, to do so might encourage attemptsto extend the meaning of treaties illegitimately on thebasis of the so-called principle of " effective interpreta-tion ". The Court, which has by no means adopted anarrow view of the extent to which it is proper toimply terms in treaties, has nevertheless insisted thatthere are definite limits to the use which may be madeof the principle Ut res magis valeat for this purpose.In the Interpretation of the Peace Treaties Opinion m

it said:" The principle of interpretation expressed in the

maxim: Ut res magis valeat quam pereat, often re-ferred to as the rule of effectiveness, cannot justifythe Court in attributing to the provisions for thesettlement of disputes in the Peace Treaties a mean-ing which . . . would be contrary to their letter andspirit."

And it emphasized that to adopt an interpretationwhich ran counter to the clear meaning of the termswould not be to interpret but to revise the treaty. Thedraft articles do not therefore contain any separateprovision regarding the principle of " effective inter-pretation ".

Article 69(9) This article is based on the view that the text

must be presumed to be the authentic expression of theintentions of the parties ; and that, in consequence, thestarting point of interpretation is the elucidation of themeaning of the text, not an investigation ab initio intothe intentions of the parties. The Institute of Inter-national Law adopted this — the textual — approach totreaty interpretation, despite its first Rapporteur's 132

strong advocacy of a more subjective, " intentions of theparties ", approach. The objections to giving too large aplace to the intentions of the parties as an independentbasis of interpretation find expression in the proceed-ings of the Institute.133 The textual approach, on the

130 See C. De Visscher, Problemes ^interpretation judi-ciaire en droit international public (1963), pp. 87-88; SirHersch Lauterpacht, The Development of International Lawby the International Court (1958), p. 229.

181 l.CJ. Reports 1950, p. 229.132 Sir Hersch Lauterpacht. At the final discussion of the

subject in 1956 Sir Hersch Lauterpacht, having been electedto the Court, was replaced by Sir Gerald Fitzmaurice who,in common with the majority of the members favoured thetextual approach.

188 See in particular Sir E. Beckett, Annuaire, vol. 43, tome 1(1950), pp. 435-444; Max Huber, Annuaire, vol. 44, tome 1(1952), pp. 198-202; and the deliberations in Annuaire, ibid.,tome 2, pp. 369-382.


other hand, commends itself by the fact that, as oneauthority 134 has put it, " le texte signe est, sauf de raresexceptions, la seule et la plus ricente expression de lavolonti commune des parties ". Moreover, the jurispru-dence of the Court contains many pronouncements fromwhich it is permissible to conclude that the textual ap-proach to treaty interpretation is regarded by it as estab-lished law.135 In particular, the Court has more thanonce stressed that it is not the function of interpretationto revise treaties or to read into them what they donot, expressly or by necessary implication, contain.136

(10) Paragraph 1 contains four separate principles.The first — interpretation in good faith — flows directlyfrom the rule pacta sunt servanda. The second prin-ciple is the very essence of the textual approach: theparties are to be presumed to have that intention whichappears from the ordinary meaning of the terms usedby them. The third principle is one both of commonsense and good faith: the ordinary meaning of a termis not to be determined in the abstract but in the contextof the treaty and in the light of its objects and pur-poses. These principles have repeatedly been affirmedby the Court.137 The present Court in its Opinion onthe Competence of the General Assembly regarding ad-mission to the United Nations said : 138

" The Court considers it necessary to say that thefirst duty of a tribunal which is called upon to in-terpret and apply the provisions of a treaty, is toendeavour to give effect to them in their natural andordinary meaning in the context in which they occur.If the relevant words in their natural and ordinarymeaning make sense in their context, that is an endof the matter."

And the Permanent Court in an early Opinion139

stressed that the context is not merely the article orsection of the treaty in which the term occurs, but thetreaty as a whole :

" In considering the question before the Court uponthe language of the Treaty, it is obvious that theTreaty must be read as a whole, and that its meaningis not to be determined merely upon particularphrases which, if detached from the context, may beinterpreted in more than one sense."

Again the Court has more than once had recourse tothe statement of the objects and purposes of the treaty

184 Max Huber, Annuaire de Vlnstitut de droit international,vol. 44, tome 1 (1952), p. 199.

**" See examples in V. D. Degan, L'interpritation des accordsen droit international (1963), pp. 79-83 ; and Fitzmaurice inBritish Year Book of International Law, vol. 28 (1951), pp.10-11 and vol. 33 (1957), pp. 212-214.

l t s For example, in the United States Nationals in MoroccoCase, I.CJ. Reports 1952, pp. 196 and 199.

1IT See instances cited in V. D. Degan, L'interpritation desaccords en droit international (1963), pp. 96-98 ; and in BritishYear Book of International Law, vol. 28 (1951), pp. 10-11and 18.

118 I.CJ. Reports 1950, p. 8.*" Competence of the 1LO to Regulate Agricultural Labour,

P.C.I.J. (1922), Series B, Nos. 2 and 3, p. 23 ; and see LordMcNair, Law of Treaties (1961), pp. 381-382.

in the preamble in order to interpret a particularprovision.140

(11) The fourth principle is the application to trea-ties of the " inter-temporal " law which, in the wordsof M. Huber in the Island of Palmas arbitration, re-quires that:

" . . . a juridical fact must be appreciated in thelight of the law contemporary with it, and not ofthe law in force at the time when a dispute in re-gard to it arises or falls to be settled." 141

Instances of the application of this principle to treatiesare to be found in the Grisbadarna 142 and in the NorthAtlantic Coast Fisheries 143 arbitrations. In the formerthe land boundary between Norway and Sweden hadbeen established by treaty in the seventeenth century.Disputes having arisen in the present century concern-ing certain fisheries, it became necessary to delimitthe course of the boundary seaward to the limit ofterritorial waters. The Tribunal rejected the median-line and thalweg principles for delimiting the maritimeboundary on the ground that these principles had notbeen recognized in the international law of the seven-teenth century. Instead, it adopted a line perpendicularto the general direction of the land as being more inaccord with the "notions of law prevailing at that time".Similarly in the North Atlantic Coast Fisheries arbi-tration the Treaty of Ghent of 1818 had excludedUnited States nationals from fishing in Canadian" bays ", and thereafter disputes arose as to what exactlywas the extent of the waters covered by the word" bays ". The Tribunal, in interpreting the language ofthe 1818 Treaty, excluded from its consideration theso-called ten-mile rule for bays 144 which had not mtfdeits appearance in international practice until twenty-one years after the conclusion of the treaty.145 Againwhen called upon to construe the expression " anydispute " in treaties of 1787 and 1836 in the Rights ofNationals of the USA in Morocco146 case, the Interna-tional Court said: " . . . it is necessary to take intoaccount the meaning of the word ' dispute' at the timeswhen the two treaties were concluded ". Accordingly,paragraph 1 (b) provides that the meaning to be givento the terms of a treaty is to be appreciated in thelight of the general rules of international law in forceat the time of the conclusion of the treaty. Some mem-bers of the Commission, while accepting that the initialmeaning of the terms of a treaty is governed by the law

140 For example, United States Nationals in Morocco Case,I.CJ. Reports 1952, pp. 183-184 and pp. 197-198.

141 Reports of International Arbitral Awards, vol. II , p . 845.142 Ibid., vol. XI, pp. 159-160. English translation in J. B.

Scott, The Hague Court Reports (1916), p. 129.14» Ibid., vol. XI, p. 196.144 " So-called " because in the Anglo-Norwegian Fisheries

case the International Court rejected the pretensions of this" rule " to be a customary rule of international law; I.CJ. Re-ports 1951, p. 131.

148 Cf. the Abu Dhabi Arbitration (International Law Re-ports, 1951, p. 144), where Lord Asquith, as arbitrator, refusedto interpret an oil concession granted in 1938 by reference tothe continental shelf doctrine which only made its appearancein international law a few years later.

148 I.CJ. Reports 1952, p. 189.


in force at the time of its conclusion, considered thatthe interpretation of the treaty may be affected bychanges in the general rules of international law; andthey would have preferred to omit the words " in forceat the time of its conclusion ". The majority, however,considered that the effect of changes in the law upon atreaty is rather a question of the application of the newlaw to the treaty — a question of the modification of therule laid down in the treaty by a later legal rulerather than one of the interpretation of the terms. Theyrecognized that the " scope " of a term may sometimesbe altered by a change in the law. For example, if itappears from a treaty that the parties have used termssuch as " bay " or " piracy " intending them to havewhatever meaning they may be given in general inter-national law, a change in the law will affect the scopeof the terms. But the majority considered that whethera change in the law will have this effect depends onthe initial intention of the parties in using the termsand that the effect of the change in the law should beregarded as a matter of the application of the lawrather than of a rule of interpretation. They preferredin the present article to confine the statement of therules of interpretation to those dealing with the estab-lishment of the initial meaning of the terms. They feltthat the question of the impact of a change in thegeneral rules of international law upon a treaty is suf-ficiently covered by article 68, paragraph 3, which dealswith the modification of treaties by the emergence ofnew rules of international law.

(12) Paragraph 2 seeks to define what is com-prised in the " context of the treaty as a whole " for thepurposes of interpretation. This is important not onlyfor the general application of the rules of interpretationbut also, as pointed out above, for indicating the scopeof the term " unless it appears from the treaty " whichis found, in one form or another, quite frequently inthese draft articles. That the preamble forms part ofa treaty for purposes of interpretation is too wellsettled to require comment; and this would seem alsoto be the case with documents which are specificallymade annexes to the treaty.147 More difficult is thequestion how far other documents connected with thetreaty are to be regarded as forming part of the " con-text of the treaty " for the purposes of interpretation.Paragraph 2 proposes that documents which shouldbe so regarded are agreements and instruments relatedto the treaty and reached or drawn up in connexionwith its conclusion. This is not to suggest that thesedocuments are necessarily to be considered as an in-tegral part of the treaty. Whether they are an actualpart of the treaty depends on the intention of the par-ties in each case.148 What is proposed in paragraph 2 isthat, for purposes of interpreting the treaty, thesecategories of documents should not be treated as mereevidence to which recourse may be had for the purposeof resolving an ambiguity or obscurity but as part ofthe context for the purpose of arriving at the ordinarymeaning of the terms of the treaty.

14T See C. Rousseau, Principes generaux du droit interna-tional public (1944), pp. 717-719.

148 Ambatielos Case (Preliminary Objection), l.CJ. Reports1952, pp. 43 and 75.

(13) Paragraph 3 specifies as further authentic ele-ments of interpretation: (a) agreements between theparties regarding the interpretation of the treaty, and(b) any subsequent practice in the application of thetreaty which clearly established the understanding ofall the parties regarding its interpretation. As to agree-ments, a question of fact may sometimes arise as towhether an understanding reached during the negotia-tions concerning the meaning of a provision is or is notintended to constitute an agreed basis for its interpre-tation.149 But it is well settled that when an agreementas to the interpretation of a provision is established ashaving been reached before or at the time of the con-clusion of the treaty, it is to be regarded as formingpart of the treaty. Thus, in the Ambatielos case 150 theCourt said : " . . . the provisions of the Declaration arein the nature of an interpretation clause, and, as such,should be regarded as an integral part of theTreaty . . . " . Similarly, an agreement as to the inter-pretation of a provision reached after the conclusionof the treaty represents an authentic interpretation bythe parties which must be read into the treaty for pur-poses of its interpretation. As to subsequent practice inthe application of the treaty, its importance as anelement of interpretation is obvious ; m for it constitutesobjective evidence of the understanding of the partiesas to the meaning of the treaty.152 Recourse to it as ameans of interpretation is well established in the juris-prudence of international tribunals.163 In its opinion onthe Competence of the ILO 154 the Permanent Courtsaid:

" If there were any ambiguity, the Court might,for the purpose of arriving at the true meaning, con-sider the action which has been taken under theTreaty."

At the same time, the Court155 referred to subsequentpractice in confirmation of the meaning which it haddeduced from the text and which it considered to beunambiguous. Similarly, in the Corfu Channel case,158

the International Court said:

148 Cf. the Conditions of Admission to Membership case,l.CJ. Reports 1948, p. 63.

150 (Preliminary Objection), l.CJ. Reports 1952, p. 44.1111 See Lord McNair, Law of Treaties (1961), chapter 24 ;

C. De Visscher, ProbUmes d'interpretation judiciaire en droitinternational public (1963), pp. 121-127.

182 See Sir Gerald Fitzmaurice, British Year Book of Inter-national Law, vol. 33 (1957), p. 223. In the Russian Indemnitycase the Permanent Court of Arbitration said: " . . . I'executiondes engagements est, entre Etats, comme entre particuliers, Itplus sur commentaire du sens de ces engagements." Reportsof International Arbitral Awards, vol. XI, p. 433. [". . . the ful-filment of engagements between States, as between individuals,is the surest commentary on the effectiveness of those engage-ments." English translation from J. B. Scott, The Hague CourtReports (1916), p. 302].

158 See examples in Lord McNair, Law of Treaties (1961),chapter 24; C. De Visscher, op. cit., pp. 121-127 and V. D.Degan, L'interpretation des accords en droit international(1963), pp. 130-132.

184 P.C.1J. (1922), Series B, No. 2, p. 39 ; see also Inter-pretation of the Treaty of Lausanne, P.C.U. (1925), Series B,No. 2, p. 24; the Brazilian Loans case, P.C.1J. (1929), SeriesA, Nos. 20-21, p. 119.

188 Ibid., pp. 40-41.158 l.CJ. Reports 1949, p. 25.


" The subsequent attitude of the Parties showsthat it has not been their intention, by entering intothe Special Agreement, to preclude the Court fromfixing the amount of the compensation."The value of subsequent practice varies according as

it shows the common understanding of the parties as tothe meaning of the terms. The practice of an individualState may, it is true, have special relevance when itrelates to the performance of an obligation which par-ticularly concerns that State. Thus in the Status ofSouth West Africa Opinion 1B7 the Court said :

" Interpretations placed upon legal instruments bythe parties to them, though not conclusive as to theirmeaning, have considerable probative value whenthey contain recognition by a party of its own obli-gations under an instrument."

But, in general, the practice of an individual party orof only some parties as an element of interpretation ison a quite different plane from a concordant practiceembracing all the parties and showing their commonunderstanding of the meaning of the treaty. Subsequentpractice of the latter kind evidences the agreement ofthe parties as to the interpretation of the treaty and isanalogous to an interpretative agreement. For this rea-son the Commission considered that subsequent prac-tice establishing the common understanding of all theparties regarding the interpretation of a treaty shouldbe included in paragraph 3 as an authentic means ofinterpretation alongside interpretative agreements. Thepractice of individual States in the application of atreaty, on the other hand, may be taken into accountonly as one of the " further " means of interpretationmentioned in article 70.

(14) In examining the question of subsequent prac-tice the Commission noted that certain of the cases inwhich the Court had had recourse to this means ofinterpretation have concerned the interpretation of theconstitutions of international organizations,158 as forexample in its recent Opinion on Certain Expenses ofthe United Nations,159 where it made large use of thesubsequent practice of organs of the United Nationsas a basis for its findings on a number of points. Theproblem of the effect of the practice of organs of aninternational organization upon the interpretation ofits constituent instrument raises the question how farindividual Member States are bound by the practice.Although the practice of the organ as such may beconsistent, it may have been opposed by individualMembers or by a group of Members which have beenoutvoted.160 This special problem appears to relate tothe law of international organizations rather than tothe general law of treaties, and the Commission did

187 I.CJ. Reports 1950, pp. 135-136.188 For example, The Competence of the ILO, Opinions,

P.C.I.J. (1922), Series B, Nos. 2 and 3, pp. 38-40; Com-petence of the General Assembly regarding Admission, I.CJ.Reports 1950, p. 9 ; Composition of the Maritime Safety Com-mittee of 1MCO, I.CJ. Reports 1960, pp. 167 et seq.

189 I.CJ. Reports 1962, pp. 157 et seq.140 This question is examined in the separate opinion of

Judge Spender in the Expenses case (pp. 187 et seq.); andalso, although less directly, by Judge Fitzmaurice (pp. 201et seq).

not consider that it would be appropriate to deal withit in the present articles.

Article 70(15) The International Court, and the Permanent

Court before it, have frequently stated that where theordinary meaning of the words is clear and makessense in the context, there is no occasion to have re-course to other means of interpretation. Many of thesestatements relate to the use of travaux preparatoires.The passage from the Court's Opinion on the Compe-tence of the General Assembly regarding Admissionto the United Nations cited in paragraph (10) above isone example, and another is its earlier Opinion onAdmission of a State to the United Nations:161

" The Court considers that the text is sufficientlyclear; consequently it does not feel that it shoulddeviate from the consistent practice of the Perma-nent Court of International Justice, according towhich there is no occasion to resort to preparatorywork if the text of a convention is sufficiently clearin itself."

Similarly, the Court has refused to apply the maximUt res magis valeat and the principle favouring re-strictive interpretation when to do so would run counterto a clear meaning.162 The Commission accordingly con-sidered whether it should limit recourse to means ofinterpretation outside those mentioned in article 69 tocases where interpretation of the treaty in accordancewith article 69 gives either no clear meaning or ameaning which is wholly unreasonable. As already indi-cated, the Commission's approach to treaty interpreta-tion was on the basis that the text of the treaty mustbe presumed to be the authentic expression of the inten-tions of the parties, and that the elucidation of themeaning of the text rather than an investigation ab initioof the supposed intentions of the parties constitutes theobject of interpretation. It formulated article 69 onthat basis, making the ordinary meaning of the terms,the context of the treaty, its objects and purposes, andthe general rules of international law, together withauthentic interpretations by the parties, the primarycriteria for interpreting a treaty. Nevertheless, it feltthat it would be unrealistic and inappropriate to laydown in the draft articles that no recourse whatevermay be had to extensive means of interpretation, suchas travaux preparatoires, until after the application ofthe rules contained in article 69 has disclosed no clearor reasonable meaning. In practice, international tri-bunals, as well as States and international organiza-tions, have recourse to subsidiary means of interpre-tation, more especially travaux priparatoires, for thepurpose of verifying or confirming the meaning thatappears to result from an interpretation of the treaty inaccordance with article 69. The Court itself has onnumerous occasions referred to the travaux prepara-toires for the purpose of confirming its conclusions asto the "ordinary" meaning of the text. For example, inits opinion on the Interpretation of the Convention of

101 I.CJ. Reports 1948, p. 63.182 For example, The interpretation of the Peace Treaties

(second phase), I.CJ. Reports 1950, p. 229 ; the Wimbledon,.P.C.IJ. (1923), Series A, No. 1, pp. 24-25.


1919 concerning the Work of Women by Night163

the Permanent Court said :" The preparatory work thus confirms the conclu-

sion reached on a study of the text of the Conventionthat there is no good reason for interpreting article 3otherwise than in accordance with the natural mean-ing of the words."(16) Accordingly, the Commission decided to specify

in article 70 that recourse to further means of inter-pretation, including preparatory work, is permissiblefor the purpose of verifying or confirming the meaningresulting from the application of article 69 and forthe purpose of determining the meaning when theinterpretation according to article 69:

(a) Leaves the meaning ambiguous or obscure ; or(b) Leads to a result which is manifestly absurd

or unreasonable.The word " further " emphasizes that article 70 does notprovide for alternative, autonomous means of interpre-tation but only for means to supplement an interpreta-tion governed by the principles contained in article 69.Sub-paragraph (a) admits the use of these means forthe purpose of determining the meaning in cases wherethere is no clear meaning. Sub-paragraph (b) does thesame in cases where interpretation according to article69 gives a meaning which is " manifestly absurd orunreasonable in the light of the objects and purposesof the treaty ". The Court has recognized 164 this excep-tion to the rule that the ordinary meaning of the termsmust prevail. On the other hand, the comparative rarityof the cases in which it has done so and the languagewhich it used in the most recent instance — the South-West Africa Cases — suggest that it regards this excep-tion as limited to cases where the absurd or unreason-able character of the " ordinary " meaning is manifest.In the South-West Africa Cases,165 dealing with thecontention that today there is no such thing as " anotherMember for the League " for the purposes of the SouthWest Africa Mandate, the Court said:

" This contention is claimed to be based upon thenatural and ordinary meaning of the words employedin the provision. But this rule of interpretation is notan absolute one. Where such a method of interpreta-tion results in a meaning incompatible with the spirit,purpose and context of the clause or instrument inwhich the words are contained, no reliance can bevalidly placed on it."

The Commission considered that the exception must bestrictly limited, if it is not to weaken unduly the au-thority of the ordinary meaning of the terms. Sub-paragraph (b) is accordingly confined to cases whereinterpretation under article 69 gives a result which ismanifestly absurd or unreasonable in the light of theobjects and purposes of the treaty.

" s P.CJJ. (1932), Series A/B, No. 50, p. 380; cf. theSerbian and Brazilian Loans cases, P.CJJ. (1929), Series A,Nos. 20-21, p. 30.

18 * For example, Polish Postal Service in Danzig, P.CJJ.(1925), Series B, No. 11, p. 39; Competence of the GeneralAssembly regarding Admission to the United Nations, l.CJ.Reports 1950, p. 8.

105 l.CJ. Reports 1962, pp. 335-336.

(17) The Commission did not think that anythingwould be gained by trying to define travaux prepara-toires ; indeed, to do so might only lead to the possibleexclusion of relevant evidence.160 It also consideredwhether, in regard to multilateral treaties, the articleshould authorize the use of travaux preparatoires onlyas between States which took part in the negotiationsor, alternatively, only if they have been published. Inthe River Oder Commission Case the Permanent Courtexcluded from its consideration the travaux prepara-toires of certain provisions of the Treaty of Versailleson the ground that three of the States before the Courthad not participated in the conference which preparedthe Treaty of Versailles ; and in making this ruling itexpressly refused to differentiate between publishedand unpublished documents. The Commission doubted,however, whether this ruling reflects the actual practiceregarding the use of travaux preparatoires in the caseof multilateral treaties that are open to accession byStates which did not attend the conference at whichthey were drawn up.167 Moreover, the principle behindthe ruling did not seem to be so compelling as mightappear from the language of the Court in that case. AState acceding to a treaty in the drafting of which itdid not participate is perfectly entitled to request tosee the travaux preparatoires, if it wishes, beforeacceding. Nor did the rule seem likely to be practicallyconvenient, having regard to the many important multi-lateral treaties open generally to accession. Theseconsiderations apply to unpublished, but accessible,travaux preparatoires as well as to published ones ;and in the case of bilateral treaties or " closed " treatiesbetween small groups of States, unpublished travauxpreparatoires will usually be in the hands of all theparties. Accordingly, the Commission concluded thatit should not include any special provision in the articleregarding the use of travaux preparatoires in the caseof multilateral treaties.

Article 71

(18) Article 71 admits as an exception to the ordinarymeaning rule laid down in article 69 cases where it isestablished conclusively that the parties employed aparticular term. Some members doubted the need toinclude a special provision on this point, althoughthey recognized that parties to a treaty not infrequentlyemploy a term with a technical or other special mean-ing. They pointed out that technical or special use ofthe term normally appears from the context and thetechnical or special meaning becomes, as it were, theordinary meaning in the particular context. Othermembers, while not disputing that the technical orspecial meaning of the term may often appear from thecontext, considered that there was a certain utility inlaying down a specific rule on the point, if only toemphasize that the burden of proof lies on the partyinvoking the special meaning of the term, and thestrictness of the proof required. They pointed out thatthe exception had been referred to more than once by

188 P.CJJ. (1929), Series A, No. 23.187 See S. Rosenne, " Travaux preparatoires ", International

and Comparative Law Quarterly, vol. 12 (1963), p. 1378-1383.


the Court. In the Legal Status of Eastern Greenlandcase, for example, the Permanent Court had said:

" The geographical meaning of the word ' Green-land ' i.e., the name which is habitually used in themaps to denominate the whole island, must be re-garded as the ordinary meaning of the word. If it isalleged by one of the Parties that some unusual orexceptional meaning is to be attributed to it, it lieson that Party to establish its contention." 168

And the present Court in its Admission to the UnitedNations Opinion both recognized the rule and the strict-ness of the proof required :

" To warrant an interpretation other than thatwhich ensues from the natural meaning of the words,a decisive reason would be required which has notbeen established."169

The present article thus reflects the position taken bythe Court on this point.

Article 72. Treaties drawn upin two or more languages

1. When the text of a treaty has been authenticatedin accordance with the provisions of article 7 in two ormore languages, the text is authoritative in each lan-guage, except in so far as a different rule may be agreedupon by the parties.

2. A version drawn up in a language other than oneof those in which the text of the treaty was authentica-ted shall also be authoritative and be considered as anauthentic teiA if:

(a) The parties so agree; or(b) The established rules of an international or-

ganization so provide.

Article 73. Interpretation of treatieshaving two or more texts

1. The different authentic texts of a treaty are equallyauthoritative in each language, unless the treaty itselfprovides that, in the event of divergence, a particulartext shall prevail.

2. The terms of a treaty are presumed to have thesame meaning in each text. Except in the case referredto in paragraph 1, when a comparison between two ormore authentic texts discloses a difference in the expres-sion of a term and any resulting ambiguity or obscurityis not removed by the application of articles 69-72,a meaning which so far as possible reconciles the dif-ferent texts shall be adopted.

Commentary

(1) The phenomenon of treaties drawn up in twoor more languages has become increasingly familiarsince 1919 and, with the advent of the United Nations,general multilateral treaties drawn up, or finally ex-

16i P.C.IJ. (1933), Series A/B, No. 53, p. 49.19t l.CJ. Reports 1947-1948, p. 63.

pressed, in five different languages have become notuncommon.170 When a treaty is plurilingual, there mayor may not be a difference in the status of the dif-ferent language versions for the purposes of interpre-tation. Each of the versions may have the status of anauthentic text of the treaty; or one or more of themmay be merely an " official text ", that is, a text whichhas been signed by the negotiating States but not ac-cepted as authoritative ;171 or one or more of them maybe merely an " official translation ", that is, a translationprepared by the parties or an individual government orby an organ of an international organization. When-ever there are two or more texts, a question may ariseeither as to what is the effect of a plurality of authentictexts on the interpretation of the treaty, or as to whatrecourse may be had to an official text or translationas an aid to the interpretation of the authentic textor texts of the treaty.172

Article 72

(2) The first need clearly is to establish which ofthe different language versions are to be regarded asauthentic texts and it is this point with which article 72deals. Today the majority of more formal treaties con-tain an express provision determining the status of thedifferent language versions. If there is no such pro-vision, it seems to be generally accepted that each ofthe versions in which the text of the treaty was " drawnup " is to be considered authentic, and therefore authori-tative for purposes of interpretation.173 In other words,the general rule is the equality of the languages andthe equal authenticity of the texts in the absence of anyprovision to the contrary. In formulating this generalrule, paragraph 1 refers to languages in which the textof the treaty has been " authenticated " rather than" drawn up " or " adopted ". This is to take account ofarticle 7 of the present articles in which the Commis-sion recognized " authentication of the text" as adistinct procedural step in the conclusion of a treatyeven although, in the case of authentication bysignature, the act of authentication may also have otherfunctions.174

(3) The proviso " except in so far as a differentrule may be agreed upon by the parties " is necessaryfor two reasons. First, treaties sometimes provide ex-pressly that only certain texts are to be authoritative, asin the case of the Peace Treaties concluded after theSecond World War which make the French, Englishand Russian texts authentic while leaving the Italian,

170 The Commission requested the Secretariat to furnishfurther information regarding the practice of the UnitedNations in drawing up the texts of multilingual instruments.

171 For example, the Italian text of the Treaty of Peacewith Italy is " official ", but not " authentic ", since article 90designates only the French, English and Russian texts asauthentic.

171 See generally the valuable study by J. Hardy, " The Inter-pretation of Plurilingual Treaties by International Courts andTribunals ", British Year Book of International Law, vol. 37(1961), pp. 72-155.

178 Lord McNair, Law of Treaties (1961), p . 61 ; L. Ehrlich," ^interpretat ion des trait6s ", Recueil des Cours de VAcadimiede droit international, vol. 24 (1928), vol. IV, p . 98.

174 See the commentary to article 7.


Bulgarian, Hungarian, etc. texts merely " official '\175

Indeed, cases have been known where one text hasbeen made authentic between some parties and a dif-ferent text between others.176 Secondly, a plurilingualtreaty may provide that in the event of divergence be-tween the texts a specified text is to prevail. Indeed,it is not uncommon for a treaty between two States,because the language of one is not well understood bythe other or because neither State wishes to recognizethe supremacy of the other's language, to agree upon atext in a third language and designate it as the authori-tative text in case of divergence. A recent example is theTreaty of Friendship concluded between Japan andEthiopia in 1957 m in Japanese, Amharic and French,article 6 of which makes the French text authenticen cas de divergence d'interpretation. A somewhat spe-cial case was that of the Peace Treaties of St. Germain,Neuilly and Trianon, which were drawn up in French,English and Italian and which provided that in case ofdivergence the French text should prevail, except withregard to parts I and XII, containing respectively theCovenant of the League of Nations and the articlesconcerning the International Labour Organisation.

(4) Paragraph 2 covers the case of a version of thetreaty which is not " authenticated " as a text in thesense of article 7, but which is nevertheless prescribedby the treaty or accepted by the parties as authenticfor purposes of interpretation. For example, a boundarytreaty of 1897 between Great Britain and Ethiopia wasdrawn up in English and Amharic and it was statedthat both texts were to be considered authentic,178 buta French translation was annexed to the treaty whichwas to be authoritative in the event of a dispute. Para-graph 2 also provides for the possibility that, when atreaty is concluded within an organization, the estab-lished rules of the organization may prescribe thattexts shall be prepared in other official languages of theorganization and be considered authentic.179

Article 73

(5) The plurality of the authentic texts of a treatyis always a material factor in its interpretation, sinceboth or all the texts authoritatively state the terms ofthe agreement between the parties. But it needs to bestressed that in law there is only one treaty — one set ofterms accepted by the parties and one common inten-tion with respect to those terms — even when twoauthentic texts appear to diverge. In practice, theexistence of authentic texts in two or more languages

"• See the Peace Treaties with Italy (article 90), Bulgaria(article 38), Hungary (article 42), Romania (article 40) andFinland (article 36).

l t e Treaty of Brest-Litovsk of 1918 (article 10).1TT United Nations, Treaty Series, vol. 325, p. 91 ; see other

examples mentioned by J. Hardy, op. cit., pp. 126-128.*tg The treaty actually said " official ", but it seems clear

that in this instance by " official " was meant " authentic " ;Hertslet, The Map of Africa by Treaty (third edition), vol. 2,pp. 424-427; cf. the Convention for the Unification of CertainRules concerning Collisions in Inland Navigation, Hudson,International Legislation, vol. 5, pp. 819-822.

119 See Summary of the Practice of the Secretary-Generalas Depositary of Multilateral Treaties (ST/LEG/7), p. 8.

sometimes complicates and sometimes facilitates theinterpretation of a treaty. Few plurilingual treaties con-taining more than one or two articles are withoutsome discrepancy between the texts. The differentgenius of the languages, the absence of a completeconsensus ad idem, lack of sufficient time to co-ordinatethe texts or unskilful drafting may result in minor oreven major discrepancies in the meaning of the texts.In that event the plurality of the texts may be a seriousadditional source of ambiguity or obscurity in the termsof the treaty. On the other hand, when the meaning ofterms is ambiguous or obscure in one language but it isclear and convincing as to the intentions of the partiesin another, the plurilingual character of the treaty facili-tates interpretation of the text the meaning of whichis doubtful.

(6) The existence of more than one authentic textclearly introduces a new element — comparison of thetexts — into the interpretation of the treaty. But it doesnot involve a different system of interpretation. Pluri-lingual in expression, the treaty remains a single treatywith a single set of terms, the interpretation of which isgoverned by the same rules as unilingual treaties, thatis, by the rules set out in articles 69-71. The unity ofthe treaty and of each of its terms is of fundamentalimportance in the interpretation of plurilingual treatiesand it is safeguarded by combining with the principleof the equal authority of authentic texts the presump-tion that the terms are intended to have the same mean-ing in each text. This presumption requires that everyeffort should be made to find a common meaning forthe texts before preferring one to another. A term ofthe treaty may be ambiguous or obscure because it isso in all the authentic texts, or because it is so in onetext only but it is not certain whether there is a dif-ference between the texts, or because on their face theauthentic texts seem not to have exactly the samemeaning. But whether the ambiguity or obscurity isinherent in all the texts, or arises from the plurilingualform of the treaty, the first rule for the interpreter isto look for the meaning intended by the parties to beattached to the term by applying the standard rules forthe interpretation of treaties. The plurilingual form ofthe treaty does not justify the interpreter in simplypreferring one text to another and discarding thenormal means of resolving an ambiguity or obscurityon the basis of the objects and purposes of the treaty,travaux priparatoires, the surrounding circumstances,subsequent practice, etc. On the contrary, the equalityof the texts requires that every reasonable effort shouldfirst be made to reconcile the texts and to ascertain theintention of the parties by recourse to the normal meansof interpretation.180

(7) Paragraph 1 of article 73 accordingly states thatthe different authentic texts of a treaty are equallyauthoritative in each language except when the partiesthemselves expressly provide that in the case of diver-gence a particular text is to prevail. Provisions of thiskind are quite common and some examples of treatieswhich give decisive authority to a particular text in

180 See J. Hardy, op. cit., pp. 91-111, for some of the relevantjurisprudence of international tribunals.


case of a divergence have already been mentioned inparagraph (3) of this commentary.181 The applicationof these provisions may raise a difficult problem as tothe exact point in the interpretation process at whichthe provision should be put into operation. Should the" master " text be applied automatically as soon as theslightest difference appears in the wording of the texts ?Or should recourse first be had to all, or at any ratesome, of the normal means of interpretation in anattempt to reconcile the texts before concluding thatthere is a case of " divergence " ? The jurisprudence ofinternational tribunals throws a somewhat uncertainlight on the solution of this problem.182 Sometimes thetribunal has simply applied the " master " text at oncewithout going into the question whether there was anactual divergence between the authentic texts, as indeedthe Permanent Court appears to have done in the caseconcerning the interpretation of the Treaty ofNeuilly.183 Sometimes the tribunal has made some com-parison at least of the different texts in an attempt toascertain the intention of the parties.184 This was alsothe method adopted by the Supreme Court of Polandin the case of the Archdukes of the Habsburg-LorraineHouse v. The Polish State Treasury185 and thismethod is regarded as correct in one recent textbook.186

The question is essentially one of the intention of theparties in inserting the provision in the treaty, and theCommission doubted whether it would be appropriatefor it to try and resolve the problem in a formulationof the general rules of interpretation. Accordingly, itseemed to the Commission sufficient in paragraph 1 tomake a general reservation of cases where the treatycontains this type of provision.

(8) Paragraph 2 provides, first, that the terms of atreaty are presumed to have the same meaning in eachtext. Then it provides that — apart from cases wherethe parties have agreed upon the priority of a particulartext — in the event of a divergence between authentictexts a meaning which so far as possible reconciles thedifferent texts shall be adopted. These provisions giveeffect to the principle of the equality of texts. In theMavrommatis Palestine Concessions case,187 the Per-manent Court was thought by some jurists to lay downa general rule of restrictive interpretation in cases ofdivergence between authentic texts when it said:

" . . . where two versions possessing equal authorityexist one of which appears to have a wider bearingthan the other, it [the Courtl is bound to adopt themore limited interpretation which can be made toharmonise with both versions and which, as far as itgoes, is doubtless in accordance with the common

181 A few treaties, while not designating a particular textas having decisive authority, prescribe a method of interpreta-tion which is to prevail in case of divergence.

182 For the cases see J. Hardy, op. cit., pp. 128-136.183 P.C.U., Series A, N o . 3.184 For example, De Paoli v. Bulgarian State, Tribunaux ar-

bitraux mixtes, Recueil des decisions, vol. 6, p . 456.185 Annual Digest of International Law Cases, 1929-1930,

case No. 235.186 Lord McNair , Law of Treaties (1961), p . 435.187 P.CJJ. (1924), series A, No . 2, p . 19.

intention of the Parties. In the present case this con-clusion is indicated with especial force because thequestion concerns an instrument laying down theobligations of Great Britain in her capacity as Man-datory for Palestine and because the original draftof this instrument was probably made in English ".

But, as has been pointed out by a recent writer,188 theCourt does not necessarily appear to have intendedby the first sentence of this passage to lay down as ageneral rule that the more limited interpretation whichcan be made to harmonize with both texts is the onewhich must always be adopted. Restrictive interpreta-tion was appropriate in that case. But the questionwhether in case of ambiguity a restrictive interpretationought to be adopted is a more general one the answerto which hinges on the nature of the treaty and theparticular context in which the ambiguous term occurs,as has been explained in the commentary to article 71.The mere fact that the ambiguity arises from a differ-ence of expression in a plurilingual treaty does notalter the principles by which the presumption should orshould not be made in favour of a restrictive interpre-tation. Accordingly, while the Mavrommatis case im

gives strong support to the principle of conciliating —i.e., harmonizing — the texts, it is not thought to callfor a general rule laying down a presumption in favourof restrictive interpretation in the case of an ambiguityin plurilingual texts.190

(9) The Commission considered whether there wereany further principles which it might be appropriateto codify as general rules for the interpretation ofplurilingual treaties. For example, it examined whetherit should be specified that there is a legal presumptionin favour of the text with a clear meaning. It felt,however, that to state this as a general rule might begoing too far, since much might depend on the circum-stances of each case and the evidence of the intentionof the parties. Nor did it think that it would be appro-priate to formulate any general rule regarding recourseto non-authentic versions, though these are sometimesreferred to for such light as they may throw on thematter.

CHAPTER III

Special Missions

A. INTRODUCTION

History of the idea of defining rules relatingto special missions in the United Nations

25. At its tenth session, in 1958, the InternationalLaw Commission adopted a set of draft articles ondiplomatic intercourse and immunities. The Commis-

188 J. Hardy, op. cit., pp. 76-81, where there is a thoroughexamination of this precedent.

X89 Cf. Venezuelan Bond cases, Moore, International Ar-bitrations, vol. 4, p. 3623 ; and German Reparations underarticle 260 of the Treaty of Versailles (1924), Reports ofInternational Arbitral Awards, vol. I, pp. 437-439.

190 See also J. Hardy, op. cit., pp. 113-115.


sion observed, however, that the draft " deals only withpermanent diplomatic missions. Diplomatic relationsbetween States also assume other forms that might beplaced under the heading of ' ad hoc diplomacy ', cover-ing itinerant envoys, diplomatic conferences and specialmissions sent to a State for limited purposes. TheCommission considered that these forms of diplomacyshould also be studied, in order to bring out the rulesof law governing them, and requested the special rap-porteur to make a study of the question and to submithis report at a future session." 191 The Commission de-cided at its eleventh session (1959)192 to include thequestion of ad hoc diplomacy as a special topic on theagenda of its twelfth session (1960).

26. Mr. A. E. F. Sandstrom was appointed SpecialRapporteur. He submitted his report at the twelfthsession,193 and on the basis of this report the Commis-sion took decisions and drew up recommendations forthe rules concerning special missions. The Commission'sdraft was very brief. It was based on the idea that therules on diplomatic relations in general prepared bythe Commission should on the whole be applied tospecial missions by analogy. The Commission expressedthe opinion that this brief draft should be referred tothe Conference on Diplomatic Intercourse and Immu-nities convened at Vienna in the spring of 1961. Butthe Commission stressed the fact that it had not beenable to give this subject the thorough study it wouldnormally have done. For that reason, the Commissionregarded its draft as only a preliminary survey, carriedout in order to put forward certain ideas and sugges-tions which should be taken into account at the ViennaConference.194

27. At its 943 rd plenary meeting on 12 December1960, the United Nations General Assembly decided,195

on the recommendation of the Sixth Committee, thatthese draft articles should be referred to the ViennaConference with the recommendation that the Con-ference should consider them together with the draftarticles on diplomatic intercourse and immunities. TheVienna Conference placed this question on its agendaand appointed a special Sub-Committee.196

28. The Sub-Committee noted that these draft ar-ticles did little more than indicate which of the ruleson permanent missions applied to special missions andwhich did not. The Sub-Committee took the view thatthe draft articles were unsuitable for inclusion in thefinal convention without long and detailed study whichcould take place only after a set of rules on permanent

181 Yearbook of the International Law Commission, 1958,vol. II , p . 89, para. 51 .

192 Yearbook of the International Law Commission, 1959,vol. II , p . 122, para. 43 .

193 Yearbook of the International Law Commission, 1960,vol. II , pp . 108-115.

194 Ibid., p . 179.195 Resolution 1504 (XV).199 T h e Sub-Committee was composed of the representatives

of Ecuador, Iraq, Italy, Japan, Senegal, USSR, United King-dom, United States and Yugoslavia. See Yearbook of theInternational Law Commission, 1963, vol. II , p . 157, para. 44.

missions had been finally adopted.197 For this reason,the Sub-Committee recommended that the Conferenceshould refer this question back to the General Assemblyso that the Assembly could recommend to the Inter-national Law Commission further study of the topic,i.e., that it continue to study the topic in the light ofthe Vienna Convention on Diplomatic Relations whichwas then drawn up. At a plenary meeting of the ViennaConference on 10 April 1961, the Sub-Committee'srecommendation was adopted.198

29. The matter was again submitted to the UnitedNations General Assembly. On 18 December 1961, theGeneral Assembly, on the recommendation of the SixthCommittee, adopted resolution 1687 (XVI) in whichthe International Law Commission was requested tostudy the subject further and to report thereon to theGeneral Assembly.

30. Pursuant to this decision, the question was re-ferred back to the International Law Commission,which, at its 669th meeting on 27 June 1962, decidedto place it on its agenda.199 The Commission requestedthe United Nations Secretariat to prepare a workingpaper200 which would serve as a basis for the discus-sions on this topic at its 1963 session. The Commissionthen placed this question on the agenda of its fifteenthsession (1963).

31. During its fifteenth session, at the 712th meet-ing, the Commission appointed Mr. Milan Bartos asSpecial Rapporteur for the topic of special missions.201

32. In that connexion, the Commission took the fol-lowing decision:

" With regard to the approach to the codificationof the topic, the Commission decided that the SpecialRapporteur should prepare a draft of articles. Thesearticles should be based on the provisions of theVienna Convention on Diplomatic Relations, 1961,but the Special Rapporteur should keep in mind thatspecial missions are, both by virtue of their functionsand by their nature, an institution distinct from per-manent missions. In addition, the Commissionthought that the time was not yet ripe for decidingwhether the draft articles on special missions shouldbe in the form of an additional protocol to the ViennaConvention, 1961, or should be embodied in a sepa-rate convention or in any other appropriate form,and that the Commission should await the SpecialRapporteur's recommendations on that subject."202

33. In addition, the Commission considered againwhether the topic of special missions should also cover

19T United Nations Conference on Diplomatic Intercourseand Immunities, Official Records, vol. II (document A/CONF.20/C.1/L.315), p. 45.

188 Ibid, (document A/CONF.20/10/Add.l, resolution I), p.89.

199 Yearbook of the International Law Commission, 1962,vol. II, p. 196, para. 76.

-00 Working paper issued as document A/CN.4/155, pub-lished in Yearbook of the International Law Commission,1963, vol. II, pp. 151-158.

201 Ibid., p. 225, para. 65.=fl2 Ibid., para. 64.


the status of government delegates to congresses andconferences. On this point, the Commission at its fif-teenth session inserted the following paragraph in itsannual report to the United Nations General Assembly :

" With regard to the scope of the topic, the mem-bers agreed that the topic of special missions shouldalso cover itinerant envoys, in accordance with itsdecision at its 1960 session.203 At that session theCommission had also decided not to deal with theprivileges and immunities of delegates to congressesand conferences as part of the study of specialmissions, because the topic of diplomatic conferenceswas connected with that of relations between Statesand inter-governmental organizations. At the presentsession, the question was raised again, with particularreference to conferences convened by States. Most ofthe members expressed the opinion, however, thatfor the time being the terms of reference of the SpecialRapporteur should not cover the question of dele-gates to congresses and conferences."204

34. The Special Rapporteur submitted his report,205

which was placed on the agenda of the Commission'ssixteenth session.

35. The Commission considered the report twice.First, at the 723rd, 724th and 725th meetings, it en-gaged in a general discussion and gave the SpecialRapporteur general instructions on continuing his studyand submitting the rest of his report at the followingsession. Secondly, at the 757th-758th, 760th-763rd and768th-770th meetings, it examined a number of draftarticles and adopted the sixteen articles reproduced inthe draft below, to be supplemented, if necessary, dur-ing its seventeenth session. These articles are submittedto the General Assembly and to the Governments ofMember States for information.

B. DRAFT ARTICLES 1 TO 16 AND COMMENTARY

Part I

Section I. General rules'-™

Article I.207 The sending of special missions

1. For the performance of specific tasks, States maysend temporary special missions with the consent ofthe State to which they are to be sent.

2. The existence of diplomatic or consular relationsbetween States is not necessary for the sending orreception of special missions.

10 * Yearbook of the International Law Commission, 1960,vol. I, 565th meeting, para. 26.

'"* Yearbook of the International Law Commission, 1963,vol. II, p. 225, para. 63.

205 A/CN.4/166, vide supra, pp. 67-117.*•• Articles 1 to 12 were adopted by the Commission at its

768th and 769th meetings, on 17 July 1964, and articles 13 to16 were adopted at the 770th meeting, on 20 July 1964.

207 The Commission decided that this article would be pre-ceded by a definitions article.

Commentary

(1) Article 1 of the draft on special missions differsfrom the provisions of the Vienna Convention on Diplo-matic Relations. The difference is due to the fact thatthe tasks and duration of special missions differ fromthose of regular missions.

(2) A special mission must possess the followingcharacteristics:

(a) It must be sent by a State to another State.Special missions cannot be considered to include mis-sions sent by political movements to establish contactwith a particular State, or missions sent by States toestablish contact with a movement. In the case of in-surrection or civil war, however, any such movementswhich have been recognized as belligerents and havebecome subjects of international law have the capacityto send and receive special missions. The sameconcept will be found in the Vienna Convention onDiplomatic Relations [article 3, paragraph 1 (a)].

(b) It must not be in the nature of a missionresponsible for maintaining general diplomatic rela-tions between the States; its task must be preciselydefined. But the fact that a task is defined does notmean that its scope is severely limited; in practice,some special missions are given far-reaching tasks ofa general nature, including the review of relationsbetween the States concerned and even the formula-tion of the general policy to be followed in theirrelations. But the task of a special mission is in anycase specified and it differs from the functions of apermanent diplomatic mission, which acts as a generalrepresentative of the sending State [article 3, para-graph 1 (a) of the Vienna Convention on DiplomaticRelations]. In the Commission's view, the specifiedtask of a special mission should be to representthe sending State in political or technical matters.

(c) A State is not obliged to receive a specialmission from another State unless it has undertakenin advance to do so. Here, the draft follows the prin-ciple set out in article 2 of the Vienna Convention,but the Commission points out that the way in whichconsent is expressed to the sending of a permanentdiplomatic mission differs from that used in connexionwith the sending of a special mission. In the case ofa special mission, consent usually takes a moreflexible form. In practice, such an undertaking isgenerally given only by informal agreement; lessfrequently, it is given by formal treaty providingthat a specific task will be entrusted to the specialmission ; one characteristic of a special mission, there-fore, is that consent for it must have been given inadvance for a specific purpose.

(d) It is of a temporary nature. Its temporarynature may be established either by the term fixedfor the duration of the mission or by its being givena specific task, the mission usually being terminatedeither on the expiry of its term or on the completion ofits task.208 Regular diplomatic missions are not of thistemporary nature, since they are permanent (article 2of the Vienna Convention on Diplomatic Relations).

See article 12.


However, a permanent specialized mission which hasa specific sphere of competence and may exist sideby side with the regular permanent diplomatic missionis not a special mission and does not possess thecharacteristics of a special mission. Examples of per-manent specialized missions are the United Statesmissions for economic co-operation and assistance tocertain countries, the Australian immigration mis-sions, the industrial co-operation missions of thesocialist countries, and commercial missions or dele-gations which are of a diplomatic nature, etc.

(3) The sending and reception of special missionsmay—and most frequently does—occur between Stateswhich maintain regular diplomatic or consular relationswith each other, but the existence of such relations isnot an essential prerequisite. Where such relations doexist and the regular diplomatic mission is functioning,the special mission's particular task may be one whichwould have been within the competence of the ordinarymission if there had been no special mission. During theexistence of the special mission, however, States areentitled to conduct through the special mission relationswhich are within the competence of the general mission.The Commission deemed it advisable to stress that theexistence of diplomatic or consular relations betweenthe States in question is not a prerequisite for the send-ing and reception of special missions. The Commissionconsidered that special missions can be even more use-ful where such relations do not exist. The questionwhether special missions can be used between States orGovernments which do not recognize each other wasalso raised. The Commission considered that, even inthose cases, special missions could be helpful in im-proving relations between States, but it did not considerit necessary to add a clause to that effect to article 1.

(4) The manner in which the agreement for sendingand receiving a special mission is concluded is a sepa-rate question. In practice, there are a number of waysof doing so, namely :

(a) An informal diplomatic agreement providingthat a special mission will be sent and received ;

(b) A formal treaty providing that certain questionswill be discussed and settled through a special mis-sion ;

(c) An offer by one State to send a special missionfor a specific purpose, and the acceptance, even tacit,of such a mission by the other State ;

(d) An invitation from one party to the other tosend a special mission for a specific purpose, and theacceptance of the invitation by the other party.

(5) Where regular diplomatic relations are not inexistence between the States concerned — whether be-cause such relations have been broken off or becausearmed hostilities are in progress between the States —the sending and reception of special missions are sub-ject to the same rules cited above. Experience showsthat special missions are often used for the settlementof preliminary questions with a view to the establish-ment of regular diplomatic relations.

(6) The fact that a special mission is sent and re-ceived does not mean that both States must entrust the

settlement of the problem in question to special missionsappointed by the two parties. Negotiations with a dele-gation sent by a State for a specific purpose may alsobe conducted by the regular organs of the receiving Statewithout a special mission being appointed. Both thesepractices are considered to be usual, and in the secondcase the special mission acts on the one side and theMinistry (or some other permanent organ) on theother. The Commission did not deem it necessary torefer to this concept in the text.

(7) Cases also arise in practice in which a specificdelegation, composed of the head or of members of theregular permanent diplomatic mission accredited to thecountry in which the negotiations are taking place,appears in the capacity of a special mission. Practiceprovides no clear-cut answer to the question whetherthis is a special mission in the proper sense or an activityof the permanent mission.

Article 2. The task of a special mission

The task of a special mission shall be specified bymutual consent of the sending State and of the receivingState.

Commentary

(1) The text of this article differs from the corre-sponding article (article 4) of the Vienna Conventionon Diplomatic Relations.

(2) The scope and content of the task of a specialmission are determined by mutual consent. Such con-sent may be expressed by any of the means indicatedin paragraph (4) of the commentary on article 1. Inpractice, however, the agreement to the sending andreception of special missions is usually of an informalnature, often merely stating the purpose of the mission.In most cases, the exact scope of the task becomes clearonly during the negotiations, and it frequently dependson the full powers or the authority conferred on therepresentatives of the negotiating parties.

(3) Diplomatic history records a number of caseswhere special missions have exceeded the task for whichthey were sent and received. The customary commentis that this is done to take advantage of the oppor-tunity, and that any good diplomat makes use of suchopportunities. There are also a number of cases showingthat special missions for ceremonial and formal pur-poses have taken advantage of propitious circumstancesto conduct negotiations on other matters. The limitsof the capacity of a special mission to transact businessare normally determined by full powers, given in goodand due form, but in practice the legal validity of actsby special missions which exceed the missions' powersoften depends upon their acceptance by the respectivegovernments. Though the Commission considered thisquestion to be of importance to the stability of relationsbetween States, it did not deem it necessary to proposean article dealing with it and considered that its solu-tion was closely related to section II (Conclusion of

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

treaties by States) of part I of the draft articles on thelaw of treaties.209

(4) The tasks of a special mission are sometimesdetermined by a prior treaty. In this case, the specialmission's task and the extent of its powers depend onthe treaty. This is so, for instance, in the case of com-missions appointed to draw up trading plans for aspecific period under a trade treaty. However, thesecases must be regarded as exceptional. In most cases,on the contrary, the task is determined by informal,ad hoc mutual agreement.

(5) In connexion with the task and the extent of thepowers of a special mission, the question also ariseswhether its existence encroaches upon the competenceof the regular diplomatic mission of the sending Stateaccredited to the other party. It is generally agreed thatthe permanent mission retains its competence, evenduring the existence of the special mission, to transmitto the other contracting party, to which it is accredited,communications from its Government concerning, interalia, the limit of the special mission's powers and, ifneed be, the complete or partial revocation of the fullpowers given to it or the decision to break off or suspendthe negotiations ; but all such actions can apply only tofuture acts of the special mission. The question of theparallel existence of permanent and special missions,and the problem of overlapping authority, are of con-siderable importance for the validity of acts performedby special missions. Some members of the Commissionheld that, during the existence of the special mission,its task is assumed to be excluded from the competenceof the permanent diplomatic mission. The Commissiondecided to draw the attention of Governments to thispoint and to ask them to decide whether or not a ruleon the matter should be included in the final text of thearticles, and if so to what effect.

(6) If the special mission's activity or existencecomes to an end, the full competence of the permanentdiplomatic mission is usually restored, even with respectto matters relating to the special mission's task, exceptin cases where special missions have been given exclu-sive competence, by treaty, to regulate relations in res-pect of certain matters between the States concerned.

Article 3. Appointment of the head and membersof the special mission or of members of its staff

Except as otherwise agreed, the sending State mayfreely appoint the head of the special mission and itsmembers as well as its staff. Such appointments do notrequire the prior consent of the receiving State.

Commentary

(1) In regard to the head of the special mission, thetext of article 3 differs from the rule in article 4 of theVienna Convention on Diplomatic Relations. Whereasthe head of a permanent diplomatic mission must re-ceive the agrement of the receiving State, as a general

rule no agrement is required for the appointment of thehead of a special mission. In regard to the membersand staff of the special mission, article 3 is based onthe idea expressed in the first sentence of article 7 ofthe Vienna Convention on Diplomatic Relations: thatthe sending State may freely appoint them.

(2) The Commission notes that, in State practice,consent to the sending and receiving of a special missiondoes not ordinarily imply acceptance of its head, mem-bers or staff. The Commission does not share the viewthat the declaration of acceptance of the persons form-ing the special mission should be included in the actualagreement to receive the mission ; it considered thatconsent to receive a special mission and consent to thepersons forming it are two distinct matters.210

(3) The proposition that no agrement or prior con-sent shall be required for the head, members or staff ofa special mission in no way infringes the sovereignrights of the receiving State. Its sovereign rights andinterests are safeguarded by article 4 (persons declarednon grata or not acceptable).

(4) In practice, there are several ways in which, inthe absence of prior agreement, the receiving State canlimit the sending State's freedom of choice. The follow-ing instances may be quoted :

(a) Consent can be given in the form of a visaissued in response to a request from the sending Stateindicating the purpose of the journey, or in the formof acceptance of the notice of the arrival of a specificperson on a special mission.

(b) The receiving State can express its wishes withregard to the level of the delegations.

(c) In practice the formal or informal agreementconcerning the sending and reception of a special mis-sion sometimes includes a clause specifically designat-ing the person or persons who will form the specialmission. In this case the sending State cannot makeany changes in the composition of the special missionwithout the prior consent of the State to which it isbeing sent. In practice all that is done is to send noticeof the change in good time, and in the absence of anyreaction, the other party is presumed to have acceptedthe notice without any reservation.

(5) In some cases, although less frequently, it isstipulated in a prior agreement that the receiving Statemust give its consent. This occurs primarily where im-portant and delicate subjects are to be dealt withthrough the special mission, and especially in caseswhere the head of the mission and its members mustbe eminent politicians.

(6) The question arises whether the receiving Stateis recognized as having the right to make acceptance ofthe person appointed conditional upon its own consent.In this case it sometimes happens that the State whichraises the objection asks to be consulted on the selectionof the person. Its refusal does not mean that it considersthe person proposed persona non grata, being of an ob-

209 Yearbook of the International Law Commission, 1962,pp. 164-166, articles 4 and 5.

810 For the contrary view, see Yearbook of the InternationalLaw Commission, 1960, vol. II, pp. 112-117.


jective and procedural rather than a personal nature,although it is difficult to separate these two aspects inpractice. The Commission considers that this is not thegeneral practice and that provision for such a situationshould be made in a special agreement.

(7) The head of the special mission and its membersare not in practice designated by name in the prioragreement, but in certain cases an indication is givenof the qualifications they should possess. This applieseither to meetings at a specific level (e.g., meetings ofMinisters for Foreign Affairs or of other eminentpersons) or to missions which must be composed ofspecially qualified experts (e.g., meetings of hydraulicengineers or other experts). In such cases, the specialmission is regularly composed if its head and its mem-bers possess certain qualifications or hold certain posts,and thus the sending State is subject to certain restric-tions with respect to the selection and the compositionof its special mission. Even though this is a widespreadpractice, the Commission considered that there was noneed to include a rule to that effect in article 3, but thatthe situation was already covered by the proviso " ex-cept as otherwise agreed ".

(8) The Commission also took into considerationthe practice whereby certain States (by analogy with theprovision contained in the last sentence of article 7of the Vienna Convention on Diplomatic Relations)require prior consent in the case of members of thearmed forces and persons of similar standing. The Com-mission considers that this rule is out of date and notuniversally applied.

Article 4. Persona declared non grataor not acceptable

1. The receiving State may, at any time and withouthaying to explain* its decision, notify the sending Statethat the head or any other member of the special missionor a member of its staff is persona non grata or notacceptable.

2. In any such case, the sending State shall eitherrecall the person concerned or terminate his functionswith the special mission. If the sending State refusesto carry out this obligation, the receiving State mayrefuse to recognize the person concerned as the head ora member of the special mission or as a member of itsstaff.

Commentary

(1) The text of article 4 follows article 9 of theVienna Convention on Diplomatic Relations.

(2) Whether or not the receiving State has acceptedthe mission, it unquestionably has the right to declarethe head or a member of a special mission or a mem-ber of the mission's staff persona non grata or notacceptable at any time. It is not obliged to state itsreasons for this decision.211

211 This was also the opinion of the International Law Com-mission in 1960. See Yearbook of the International Law Com-mission, 1960, vol. II, pp. 112-115 and p. 180.

(3) It may be added that, in practice, a person isseldom declared persona non grata or not acceptable ifthe receiving State has already signified its acceptanceof a particular person ; but the majority of the Com-mission takes the view that even in that case the receiv-ing State is entitled to make such a declaration.Nevertheless, the receiving State very rarely takes ad-vantage of this prerogative ; but in practice it may some-times inform the sending State, through the regulardiplomatic channel, that the head or a certain memberof the special mission, even though consent has alreadybeen given to his appointment, represents an obstacleto the fulfilment of the mission's task.

(4) In practice, the right of the receiving State todeclare the head or a member of the special missionpersona non grata or not acceptable is not often exer-cised inasmuch as such missions are of short durationand have specific tasks. Nevertheless, instances do occur.In one case, the head of a special mission sent theminister of the receiving State a letter considered offen-sive by that State, which therefore announced that itwould have no further relations with the writer. As aresult, the activities of the special mission were virtuallyparalysed, and the sending State was obliged to recallthe head of the special mission and to replace him.

(5) Where the meetings with the special mission areto be held at a specific level, or where the head or themembers of the mission are required to possess certainspecific qualifications and no other person in the send-ing State possesses such qualifications, it must be pre-sumed that in practice the person concerned cannot bedeclared persona non grata or not acceptable, and thatthe only course is to break off the conversations, sincethe sending State is not in a position to choose amongseveral persons with the necessary qualifications. Thereceiving State cannot, for instance, ask the sendingState to change its Minister for Foreign Affairs becausehe is regarded as persona non grata, for that wouldconstitute interference in the domestic affairs of thesending State. Nevertheless, it is under no obligationto enter into contact with an undesirable person, if itconsiders that refusal to do so is more advantageous toit than the actual contact with the other State. This,however, is not a juridical question, and the Commis-sion therefore decided not to deal with this situation orto regulate it in the text of the article.

Article 5. Sending the same special mission to morethan one State

A State may send the same special mission to morethan one State. In that case the sending State shall givethe States concerned prior notice of the sending ofthat mission. Each of those States may refuse to receivesuch a mission.

Commentary

(1) There is no corresponding provision in theVienna Convention on Diplomatic Relations.

(2) The International Law Commission scarcelyconsidered this question in 1960, and it has been given


scant attention in the literature. At that time the major-ity of the Commission took the view that it was com-pletely unnecessary to make provision for the matter,and the previous Special Rapporteur, Mr. Sandstrom,believed that the question did not arise at all.212 Mr.Jimenez de Arechaga, however, expressed the viewon that occasion that the situation envisaged was byno means unusual. He pointed out that special mis-sions were sent to a number of neighbouring Stateswhen changes of government took place in the sendingStates and on ceremonial occasions.213 Subsequentlystudies have shown that cases of special missions beingsent to more than one State occur in practice.

(3) Observations of practice indicate that there aretwo cases in which the problem of the appointment of aspecial mission to more than one State clearly arises.They are the following:

(a) Where the same special mission, with the samemembership and the same task, is sent to severalStates, which are usually neighbours or situated in thesame geographical region. In the case of politicalmissions (e.g., goodwill missions), there have beeninstances of States refusing to enter into contact witha mission appointed to several other States with whichthey did not enjoy good relations. Thus the questionis not simply one of relations between the sendingand receiving States, but also of relations betweenthe States to which the special mission is sent.Although this raises a political issue, it is tantamount,from the juridical standpoint, to a proviso that wherespecial missions are sent to more than one State,simultaneously or successively, consent must be ob-tained from each of the States concerned.

(b) Although, according to the strict rule, a specialmission is appointed individually, either simultan-eously or successively, to each of the States with whichcontacts are desired, certain exceptions arise in prac-tice. One custom is that known as circular appoint-ment, which — rightly, in the view of the Commission— is considered discourteous by experts in diplomaticprotocol. In this case a special mission or an itinerantenvoy is given full powers to visit move than onecountry, or a circular note is sent to more than oneState informing them of the intention to send a specialmission of this kind. If the special mission is an im-portant one, the general practice is to lodge a protestagainst this breach of courtesy. If the special missionis sent to obtain information regarding future tech-nical negotiations, the matter is usually overlooked,although it may be observed that such special missionsare placed on the level of a commercial travellerwith general powers of agency. A distinction must bemade between this practice of so-called circularappointment and the case of a special mission auth-orized to conduct negotiations for the conclusion ofa multilateral convention which is not of generalconcern. In this case its full powers may consist of asingle document accrediting it to all the States withwhich the convention is to be concluded (e.g. the

111 Yearbook of the International Law Commission, 1960,vol. II, p. 109 and p. 180.

11 • Ibid., p. 116.

Bulgarian-Greek-Yugoslav negotiations or a settle-ment of certain questions connected with their com-mon frontier).(4) It should also be mentioned that, in practice,

a special mission of the kind referred to in paragraph3 (a) above, having been accepted in principle, some-times finds itself in the position of being requested,because of the position it has adopted during its con-tacts with the representatives of the first State visited,to make no contact with another specific State to whichit is being sent. This occurs particularly in cases whereit is announced that the special mission has grantedthe first State certain advantages which are contraryto the interests of the second State. The latter mayconsider that the matter to be dealt with has beenprejudged, and may announce that the special missionwhich it had already accepted has become pointless.This is not the same as declaring the head and mem-bers of the mission persona non grata, since in this casethe refusal to accept them is based not on their sub-jective qualities but on the objective political situationcreated by the special mission's actions and the positiontaken by the sending State. It is, as it were, a restric-tion of diplomatic relations expressed solely in therevocation of the consent of the receiving State toaccept the special mission. This clearly demonstratesthe delicacy of the situation created by the practice ofsending the same special mission to more than one State.

(5) The Commission found that in this case thesending State is required to give prior notice to theStates concerned of its intention to send such a specialmission to more than one State. This prior notice isneeded in order to inform the States concerned in duetime not only of the task of a special mission but alsoof its itinerary. This information is deemed necessaryin order to enable the States concerned to decide inadvance whether they will receive the proposed specialmission. The Commission stressed that it was essentialthat the States so notified should be entitled only tostate their position on the receivability of the specialmission, and not to request that such a mission shouldnot be sent to another State as well.

Article 6. Composition of the special mission

1. The special mission may consist of a single repre-sentative or of a delegation composed of a head andother members.

2. The special mission may include diplomatic staff,administrative and technical staff and service staff.

3. In the absence of an express agreement as to thesize of the staff of a special mission, the receiving Statemay require that the size of the staff be kept withinlimits considered by it to be reasonable and normal,having regard to circnmstances, to the tasks and tothe needs of the special mission.

Commentary

(1) The text of article 6, paragraphs (2) and (3),adopted by the Commission is based on article 1 (c)and article 11, paragraph 1, of the Vienna Convention


on Diplomatic Relations. The text of paragraph 1 ofarticle 6 reflects the special features of the institutionof special missions.

(2) In practice, a special mission may be composedof only one member or of several members. If thespecial mission is entrusted to only one member, thelatter is then a special delegate, described by the Com-mission in article 6 as a " representative ". If it has twomembers, the sending State decides which of the twowill be the head or first delegate. If the special missionconsists of three or more members, the rule observedin practice is that a head of the mission (chairman ofthe delegation) should be designated.

(3) Precedence within the delegation is fixed, ac-cording to general practice, by the sending State, andis communicated to the receiving State or publishedin the manner normally adopted with respect to multi-lateral meetings. Neither the rank of the delegates ac-cording to the protocol of the sending State nor thetitle or function of the individual delegates authorizesex jure any automatic change in the order of precedenceestablished in the list communicated, without subse-quent communication of an official rectification to thereceiving State. However, according to internationalcustom, a member of the Government takes precedenceover other officials, and the head of delegation must nothave lower diplomatic rank than the members of thedelegation; but, as this custom is not observed in allcases and is not regarded as obligatory, it is not reflectedin the text.

(4) In practice a special mission may include, inaddition to the head, his deputy, the other titular mem-bers and their deputies. The Commission consideredthat the composition of the special mission and thetitles of its members were a matter exclusively withinthe competence of the sending State and that in theabsence of an agreement on it by the parties it was notgoverned by any international rule. Accordingly, theCommission did not think it necessary to include a ruleon it in the article.

(5) Whether a special mission is composed of asingle representative or of a delegation, it may beaccompanied by the necessary staff. The Commis-sion accepted the designation of the staff set out inarticle 1 (c) of the Vienna Convention on DiplomaticRelations, but pointed out that the staff of specialmissions often includes specific categories such asadvisers and experts. The Commission considered thatthese were included in the category of diplomatic staff.

(6) In practice, even in special missions the problemof limiting the size of the mission arises. The rulerelating to permanent missions is contained in article 11of the Vienna Convention on Diplomatic Relations andthe text of article 6, paragraph 3, proposed by theCommission is based on that rule.

(7) With regard to the limitation of the size ofthe special mission, attention should be drawn not onlyto the general rule, but also to certain particular caseswhich occur in practice. On this point:

(a) It is customary for the receiving State to notifythe sending State that it wishes the size of the mission

to be restricted because, for example, the housing,transport and other facilities it can offer are limited.

(b) Less frequently, in practice, the agreement onthe establishment or reception of the special missionlimits the size of the mission ; in some cases theagreement specifies a minimum number of members(joint meetings) and even calls for a mission specifi-cally composed of members having stated qualifica-tions (generally according to the problems to betreated).

(c) With respect to the size of the mission, atten-tion should also be drawn to the practice of " balanc-ing rank". It is customary, during preliminaryconversations and negotiations on the sending andreceiving of a mission, to designate the rank andstatus of the head and members of the special mission,so that the other party may act accordingly and thusavoid any disparity, for if representatives were re-ceived by a person of lower rank than their own,it might be considered an affront to their country.This, however, is a question of protocol rather thanof law.

Article 7. Authority to act on behalf ofthe special mission

1. The head of the special mission is normally theonly person authorized to act on behalf of the specialmission and to send communications to the receivingState. Similarly, the receiving State shall normally ad-dress its communications to the head of the mission.

2. A member of the mission may be authorizedeither by the sending State or by the head of thespecial mission to replace the head of the mission ifthe latter is unable to perform his functions, and toperform particular acts on behalf of the mission.

Commentary

(1) Article 7 is not derived directly from the ViennaConvention on Diplomatic Relations. Its text was drawnup on the basis of contemporary international practice.

(2) The main question from the legal point of viewis to determine the rules concerning authority to acton behalf of the special mission. Only the head of thespecial mission is normally authorized to act on behalfof the special mission and to address communicationsto the receiving State. The Commission laid stress onthe word " normally ", as the parties may also makeprovision for other persons than its head to act onbehalf of a special mission. These other possibilitiesare, however, exceptional.214

(3) Head of the special mission. As explained inthe commentary on the preceding article, if the missionis composed of three or more members, it must as ageneral rule have a head. If it is composed of onlytwo members, the sending State decides whether oneshall bear the title of first delegate or head of thespecial mission. Whether he is called first delegate or

See paragraphs (4)-(ll) of this commentary.


head of mission, he will be regarded as the head ofthe special mission by the receiving State, which willcommunicate with him and receive from him statementson behalf of the special mission. For this reason, thequestion of the existence of a head of mission is oneof great importance, notwithstanding the fact that theInternational Law Commission did not deal with it in1960. Mr. Jimenez de Arechaga, on the other hand,considers that in practice a special mission has a head,but he does not go further into the question.215 Inthe Commission's opinion, as expressed at its sixteenthsession, the matter of the appointment of a head of thespecial mission is important from the legal standpoint.

(4) In article 7, paragraph 1, the Commission estab-lished a mere presumption that the head of the specialmission is the person who gives any authorizationsthat may be required, but the sending State may inaddition authorize the other members of the specialmission to act on its behalf by giving them full powers.There are in practice instances of special missionswhose members are delegates with equal rights undercollective letters of credence for performing the tasksassigned to the special mission. Practice is not, however,uniform. Some States hold that the person mentionedfirst in the letters of credence issued to the specialmission is its head. Others, particularly States whichsend delegations, claim equal rights for all members ofsuch delegations. A common example is a mission com-posed of several members of a coalition governmentor of members of parliament representing variouspolitical groups. The advocates of the in cor pore conceptof equal rank argue that the composition of the dele-gation is a manifestation of the common outlook andthe equal standing of the members of the delegation.The practice is not uniform.

(5) There are also instances in practice where theright to act on behalf of a special mission is held tovest only in some of its members who possess a collec-tive authority (for the head and certain members ofthe mission to act collectively on its behalf) or a sub-sidiary authority (for a member of a mission to acton its behalf if the head of the mission is unable toperform his functions or if he authorizes him to do so).The Commission considers that these are exceptionalcases falling outside normal practice and are determinedby the practice of the sending State. It considered thatthere was no need to include rules covering such casesin the body of the article.

(6) The Commission did not cover in article 7, para-graph 1, the problem of the limits of the authority givento special missions. That is a question governed by thegeneral rules.

(7) Deputy head of special mission. In speaking ofthe composition of the special mission, it was said thatsometimes a deputy head of mission was also appointed.The deputy's function is indicated by the fact that heis designated by the organ of the sending State whichalso appointed the head of the special mission, andthat as a general rule the deputy head (who in practice

is often called the vice-chairman of the delegation)acts without special appointment as head of the specialmission whenever and wherever the head of missionis absent, unable to carry out his functions or recalled(in the last case, until the appointment of a new headhas been notified to the other party). From the inter-national standpoint, the rank of the deputy head inthe special mission is considered to be next below thatof the head of the mission. However, the deputy headdoes not take precedence of the members of the missionsof other States with which his delegation enters intocontact. His status as deputy head is effective onlywhen he acts as head. The position of the deputy headof a special mission is referred to in article 7,paragraph 2.

(8) From the technical standpoint, a member of thespecial mission whom the head of the mission himselfhas designated as his deputy (i.e., the administratorof the mission) is not in practice regarded as the deputyhead. The Commission did not, however, differentiatebetween these two classes of deputy head ; it regardedthem both as having the same status.

(9) Charge d'affaires ad interim of a special mission.Very frequently the special mission arrives without itshead or deputy head, that is to say, before them, sincecontact must be established and affairs conducted beforetheir arrival. There may also be occasions when bothits head and deputy head are absent during the courseof its activities. In this case, a member of the missionprovisionally assumes the duties of head of mission,acting on behalf of the head if the latter has so pro-vided. The International Law Commission did notstudy this problem in 1960 and did not suggest thatthe rules of diplomatic law relating to charges d'affairesad interim should apply, in this connexion, to specialmissions.210

(10) When a member of the mission is designatedas charge d'affaires ad interim, the rule in practice isfor the appointment of the person to be entrusted withthis function to be notified by the regular diplomaticmission of the sending State. This often occurs if thehead of the mission is recalled " tacitly ", if he leaveshis post suddenly (as frequently happens when hereturns to his country to get new instructions andremains there for some time) or if the mission arrivesat its destination without its head and without hishaving given authorization in writing to the presumptivecharge d'affaires. The Commission regarded the posi-tion of such a person as comparable to that of anacting deputy and it provided that authority for himto carry out his duties could be given either by thesending State or by the head of the special mission.

(11) In the case of special missions dealing with acomplex task, certain members of the special missionor of its staff are in practice given power to carry outspecific acts on behalf of the special mission. The Com-mission considered this practice to be important fromthe legal point of view and it included a rule on thesubject in the text (paragraph 2, in fine).

218 Yearbook of the International Law Commission, 1960,vol. II, p. 116 and pp. 179-180.

216 Ibid., p. 110 and pp. 179-180. Mr. Sandstrom, the SpecialRapporteur, was even of the opinion that this had no bearingon special missions.


(12) The Commission takes the view that the rulesapplicable to the head of the special mission also applyto a single delegate, described in the text of article 6as the " representative ".

Article 8. Notification

1. The sending State shall notify the receivingState of:

(a) The composition of the special mission andof its staff, and any subsequent changes ;

(b) The arrival and final departure of such personsand the termination of their functions with the

(c) The arrival and final departure of any personaccompanying the head or a member of the missionor a member of its staff;

(d) The engagement and discharge of personsresiding in the receiving State as members of themission or as private servants of the head or of amember of the mission or of a member of the mis-sion's staff.2. If the special mission has already commenced its

functions, the notifications referred to in the precedingparagraph may be communicated by the head of thespecial mission or by a member of the mission or ofits staff designated by the head of the special mission.

Commentary

(1) Article 8 is modelled on article 10, paragraph 1,of the Vienna Convention on Diplomatic Relations,with the changes required by the special features ofthe institution of special missions.

(2) In the case of special missions, too, the questionarises to what extent the sending State is obliged tonotify the composition of the special mission and thearrival and departure of its head, members and staff.As early as 1960, the International Law Commissionadopted the position that in this respect the generalrules on notification relating to permanent diplomaticmissions are valid for special missions.217

(3) In practice, however, the notification is notidentical with that effected in the case of permanentdiplomatic missions. In the first place, notification ofthe composition of a special mission usually takes placein two stages. The first is the preliminary notice, i.e.,an announcement of arrival. This preliminary noticeof the composition of the special mission should containbrief information concerning the persons arriving in thespecial mission and should be remitted in good time,so that the competent authorities of the receiving State(and the persons who, on its behalf, will maintaincontact) are kept informed. The preliminary noticemay in practice be remitted to the Ministry of ForeignAffairs of the receiving State or to its permanent diplo-matic mission in the sending State. The second stageis the regular notification given through the diplomaticchannel, i.e., through the permanent mission in thereceiving State (in practice, the special mission itself

217 Ibid., p. 113 and pp. 179-180.

gives this notification directly only if the sending Statehas no permanent mission in the receiving State andthere is no mission there of a third State to which thesending State has entrusted the protection of its inter-ests). The Commission has not indicated these twostages of notification in the text, but has merely laiddown the duty of the sending State to give thenotification.

(4) Consequently, there are in practice certain spe-cial rules for notification of the composition and arrivalof a special mission. They arise from the need toinform the receiving State in a manner different fromthat used for permanent missions. The InternationalLaw Commission did not refer to this fact in 1960.

(5) On the other hand, it is not customary to giveseparate notifications of the special mission's departure.It is presumed that the mission will leave the receivingState after its task has been fulfilled. However, it iscustomary for the head and members of the specialmission to inform the representatives of the receivingState with whom they are in contact verbally, eitherduring the course of their work or at the end of theirmission, of the date and hour of their departure andthe means of transport they propose to use. The Com-mission took the view that even in this case a regularnotification should be given.

(6) A separate question is whether a head or mem-ber of a special mission who remains in the territoryof the receiving State after his official mission hasended but while his visa is still valid should give noticeof his extended stay. Opinion is divided on this ques-tion, and the answer depends on the receiving State'sgeneral laws governing aliens. If an extended stay ofthis kind does occur, however, it is an open questionat what point of time the official stay becomes a privatestay. Courtesy demands that the situation should betreated with some degree of tolerance. The Commissionconsiders it unnecessary to include provisions governingthis case in the text of the article.

(7) The right to recruit auxiliary staff for specialmissions locally is in practice limited to the recruitmentof auxiliary staff without diplomatic rank or expertstatus, persons performing strictly technical functions(e.g., chauffeurs), and service staff. The rule observedin practice is that the receiving State should ensurethe availability of such services, for the performanceof the functions of the special mission is often depend-ent on them. In 1960 the International Law Com-mission inclined to the view that the availability ofthese services to special missions should be regardedas part of their general privileges. However, the re-ceiving State is entitled to information on any localrecruitment by special missions and, in the Commis-sion's view, the latter must see that the authoritiesof the receiving State are kept regularly informed con-cerning the engagement and discharge of such staff,although all engagements of this kind, like the specialmission itself, are of limited duration.

(8) In order to make notification easy and flexiblein practice, the special mission, as soon as it beginsto discharge its functions, effects notification direct,and not necessarily through the permanent diplomatic


mission. The Commission has found this a sensiblecustom and has included a rule to that effect in thetext of article 8, paragraph 2.

Article 9. General rales concerning precedence

1. Except as otherwise agreed, where two or morespecial missions meet in order to carry oot a commontask, precedence among the heads of the special missionsshall be determined by alphabetical order of the namesof the States.

2. The precedence of the members and the staff ofthe special mission shall be notified to the appropriateauthority of the receiving State.

Commentary

(1) The question, of precedence among the headsof special missions arises only when several specialmissions meet, or when two missions meet on theterritory of a third State. In practice, the rules ofprecedence among the heads of permanent diplomaticmissions are not applied. The Commission did not con-sider that precedence among the heads of special mis-sions should be governed by the provisions of theVienna Convention, which are based on the presentationof credentials or on the date of arrival and on classesof heads of permanent missions — institutions irrelevantto special missions.

(2) The question of rank does not arise when aspecial mission meets with a delegation or organ ofthe receiving State. In practice, the rules of courtesyapply. The organ or delegation of the receiving Statepays its compliments to the foreign special mission andthe mission pays its respects to its host, but there isno question of precedence, properly so-called. TheCommission has not dealt with this situation in thetext of the articles, since it considers the rules ofcourtesy sufficient.

(3) The Commission believes that it would be wrongto include a rule that the order of precedence of headsof special missions should be determined by the diplo-matic rank to which their titles would assign themunder the general rules on classes of heads of permanentmissions.

(4) Of particular significance is the fact that manyheads of special missions have no diplomatic rank, andthat heads of special missions are often personalitiesstanding above all diplomatic rank. Some States makeprovision for such cases in their domestic law and intheir practice, and give precedence to ministers whoare members of the cabinet and to certain other highofficials.

(5) The Commission wishes to stress that the rulesor article 9 are not valid with respect to special missionshaving ceremonial or formal functions. This questionis dealt with in article 10.

(6) The Commission considers that the rank ofheads of special missions should be determined on thebasis of the following considerations. Although in thecase of ad hoc ceremonial diplomacy the heads of special

missions are still divided into diplomatic classes (e.g.,special ambassador, special envoy), the current prac-tice is not to assign them any special diplomatic title.All heads of special missions represent their States andare equal among themselves in accordance with theprinciple of the equality of States.

(7) The International Law Commission did not takeup this question in 1960. During the Commission'sdebates in 1960, however, Mr. Jim6nez de Arechagaexpressed the view that the rules on classes of headsof missions applied equally to special missions, andhe did not restrict that conclusion to ceremonialmissions.218

(8) The practice developed in relations betweenStates since the formation of the United Nations ignoresthe division of heads of special missions into classesaccording to their ranks, except in the case of cere-monial missions.

(9) There are two views concerning precedenceamong heads of special missions. According to thefirst, the question of rank does not arise with specialmissions. This follows from the legal rule laid downby article 3 of the Regulation of Vienna of 19 March1815. This provides that diplomatic agents on specialmission shall not by this fact be entitled to any supe-riority of rank. Genet219 deduces from this rale thatthey have no special rank by virtue of their mission,although they do have diplomatic status. However,Satow220 takes a different view. Although the headsof special missions are not ranked in the same orderas the heads of the permanent diplomatic missions,there does exist an order by which their precedencecan be established. This, says Satow, is an orderinter se. It is based on their actual diplomatic rank;and where they perform identical functions, precedenceamong them is determined on the basis of the orderof presentation of their credentials or full powers.

(10) In his 1960 proposal,221 Mr. A. E. F. Sand-strom, Special Rapporteur of the International LawCommission, took the view that although, under theRegulation of Vienna, a special mission enjoys no supe-riority of rank, the heads of special missions, at leastceremonial missions, nevertheless rank among them-selves according to the order of the presentation oftheir credentials. Yet while advancing this opinionin the preliminary part of his report, he limited himselfin his operative proposal (alternative I, article 10, andalternative II, article 3) to inserting the negative pro-vision that the head of a special mission should not,by such position only, be entitled to any superiorityof rank.

(11) Mr. Sandstrom took as his starting point theidea that rank was defined by membership in the diplo-matic service or by diplomatic category. He therefore

" • Ibid., p. 116.119 Raoul Genet, Traiti de diplomatie et de droit diploma-

tique, Paris, 1931, vol. I, p. 86.11° Sir Ernest Satow, A Guide to Diplomatic Practice.

4th edition, London, 1957, p. 41.221 Yearbook of the International Law Commission, I960,

vol. H, p. 109.


made a distinction between diplomatic missions, mis-sions regarded as being diplomatic, and technical mis-sions, which are not of a diplomatic character.

(12) In the first place, the Commission, at its six-teenth session, held that it is not true that the personheading a special diplomatic mission of a politicalcharacter will necessarily be a member of the diplomaticservice and have diplomatic rank. Such missions maybe headed by other persons, so that diplomatic rank isa very unreliable criterion. Why should a high officialof the State (for example, a member of the Govern-ment) necessarily be ranked lower than a personbearing the title of ambassador ? This would be incom-patible with the current functional conception of diplo-macy. On the other hand, it is considered that it wouldbe erroneous to classify heads of mission having diplo-matic rank according to their titles (for example, am-bassador and minister plenipotentiary). They are allheads of diplomatic missions and have the same au-thority to represent their sovereign States, which, underArticle 2 of the United Nations Charter, enjoy theright to sovereign equality. It follows that precedenceinter se cannot be determined on the basis of diplomaticrank, at least in so far as juridical treatment is con-cerned (this does not affect the matter of courtesytowards the head of the special mission).

(13) Secondly, the Commission discarded the ideathat different principles apply to so-called technicalmissions. Such missions are today usually headed by acareer diplomat, and the task of every technical missionincludes some political and representative elements.

(14) Again, precedence can hardly be establishedaccording to the order of the presentation of credentialsby the heads of special missions. At most meetings ofspecial missions the presumption, consistent with thefacts, is that they arrive simultaneously,222 and theindividual and ceremonial presentation of credentialsis a distinct rarity. For this reason, the date of presenta-tion is without significance in practice.

(15) Precedence among heads of special missions,limited as it is in its effect to their relations inter se,is important only in the case of a multilateral meeting orof contacts among two or three States, not counting thereceiving State. In contacts between the special missionand the representatives of the receiving State alone, thequestion of precedence does not arise: as a matter ofcourtesy the host treats its guest with high considera-tion, and the latter is obliged to act in the same mannertowards its host.

(16) The Commission considers that as a result, first,of the change which has taken place in the conceptionof the character of diplomacy, especially the abandon-ment of the theory of the exclusively representativecharacter of diplomacy and the adoption of the func-tional theory,223 and secondly, of the acceptance of the

principle of the sovereign equality of States, the legalrules relating to precedence among heads of specialmissions have undergone a complete transformation. Theprinciples of the Regulation of Vienna (1815) are nolonger applicable. No general principle can be inferred,on the basis of analogy, from the rules of precedencegoverning permanent missions. For this reason, moreand more use is being made of an automatic method ofdetermining the precedence of heads of special missions,namely, the classification of delegates and delegationsaccording to the alphabetical order of the names of theparticipating States. In view of the linguistic differencesin the names of States, the custom is also to state thelanguage in which the classification will be made.224

This is the only procedure which offers an order capableof replacing that based on rank, while at the sametime ensuring the application of the rules on the sove-reign equality of States.-25

(17) The International Law Commission did not gointo the question of precedence within a special mission.It believes that each State must itself determine theinternal order of precedence among the members of thespecial mission and that this is a matter of protocolonly, the order of precedence being sent to the receivingState by the head of the special mission either direct orthrough the permanent diplomatic mission. This ruleforms the subject of article 9, paragraph 2.

(18) The Commission also believes that there are nouniversal legal rules determining the order of precedenceas between members of different special missions, or asbetween them and members of permanent diplomaticmissions, or as between them and the administrativeofficials of the receiving State.

(19) It frequently happens that special missions meetin the territory of a third State which is not involvedin their work. In this case it is important to the receiv-ing State that the precedence of the heads of the specialmissions, or rather of the missions themselves, shouldbe fixed, so that it does not, as host, run the risk offavouring one of them or of being guided by subjectiveconsiderations in determining their precedence.

(20) A brief comment must be made on the questionof the use of the alphabetical order of names of Statesas a basis for determining the order of precedence ofspecial missions. At the present time, the rule in theUnited Nations qnd in all the specialized agencies, inaccordance with the principle of the sovereign equalityof States, is to follow this method. While consideringit to be the most correct one, the Commission concedesthat the rule need not be strictly interpreted as requiringthe use of the alphabetical order of the names of States

181 Thus, Jimenez de Are"chaga ; see Yearbook of the Inter-national Law Commission, 1960, vol. II, p. 116, para. 13.

" • This cumulation of the functional and the representativecharacter is confirmed by the fourth paragraph of the Preambleand by article 3 of the Vienna Convention on DiplomaticRelations.

824 Mr. Sandstrom too used this method in his draft indealing with the question of the participation of ad hocdiplomats in congresses and conferences (chap. II, art. 6).

" " I n order to bring the practice further into line with theprinciple of equality, it is now customary for lots to be drawn,the initial letter of the name of the State thus chosen indicat-ing the beginning of the ad hoc alphabetical order. At UnitedNations meetings and meetings organized by the UnitedNations, lots are drawn at the opening of the session, to assignseats to the participating States for the duration of the sessionand whenever a roll-call vote is taken.

220 Yearbook of the International Law Commission, Vol. Q

in a specified language — English, for example. Someexperts have drawn attention to the possibility of apply-ing the same method but on the basis of the alphabeticalorder of names of States used in the official diplomaticlist of the receiving State. The important thing is thatthe system applied should be objective and consistentwith the principle of the sovereign equality of States.For this reason, the Commission adopted the principleof the alphabetical order of the names of States. Themembers of the Commission were divided on thequestion whether the order adopted should be that usedby the United Nations or that used in the official diplo-matic list of the receiving State.

(21) The Commission considers that everythingstated in this article with regard to heads of specialmissions is also applicable to single representatives.

Article 10. Precedence among special ceremonialand formal missions

Precedence among two or more special missionswhich meet on a ceremonial or formal occasion shallbe governed by the protocol in force in the receivingState.

Commentary

(1) The Vienna Convention on Diplomatic Relationsconfines itself to provisions concerning permanentdiplomatic missions and does not take into accounteither special missions or diplomatic ceremonial andformal missions, which have continued to exist inpractice even after the establishment of permanent resi-dent diplomacy, and continue to exist to this day.

(2) The Commission observed that the rules govern-ing special ceremonial and formal missions vary fromState to State. The question arises whether a selectionshould be made among the different customs, or whetherthe rule universally observed in practice should beadopted, namely, that the receiving State is competentto settle the order of precedence among special missionsmeeting in its territory on the occasion of a ceremonyor a formal manifestation. The Commission favouredthe second proposal.

(3) The different customs found in practice includethe following:

(a) On such occasions the representatives of Statescustomarily bear the title of special ambassadors ex-traordinary. Even a regularly accredited ambassador,when assigned to represent his country on a cere-monial occasion, is given the title of ad hoc ambass-ador. This is regarded as a point of internationalcourtesy.

(b) In accordance with the established interpreta-tion of article 3 of the Regulation of Vienna of 1815,the prior tempore rule is held to apply even to theseambassadors, who should take precedence in theorder of the time of presentation of the letters ofcredence issued for the ad hoc occasion. In practice,however, it has proved almost impossible to imple-ment this rule. The funeral of King George VI ofGreat Britain was a case in point. A number of

special missions were unable, for lack of time, topresent their letters of credence, or even copies ofthem, to the new Queen before the funeral ceremony.Moreover, several missions arrived in London simul-taneously, so that the rule providing for the determi-nation of precedence according to the order ofarrival was also inapplicable. For this reason, it wasmaintained that it would be preferable to selectanother criterion, more objective and closer to theprinciple of the sovereign equality of States, whileretaining the division of heads of special missionsinto classes.

(c) It is becoming an increasingly frequent practiceto send special delegates of higher rank than ambass-ador to be present on ceremonial occasions. Somecountries consider that to give them the title of ad hocambassador would be to lower their status, for it isincreasingly recognized that Heads of Governmentand ministers rank above all officials, including am-bassadors. In practice, the domestic laws of a numberof countries give such persons absolute precedenceover diplomats.

(d) However, persons who do not belong to thegroups mentioned in sub-paragraph (a) above arealso sent as special ad hoc ambassadors, but are notgiven diplomatic titles because they do not wantthem. Very often these are distinguished persons intheir own right. In practice there has been someuncertainty as to the rules applicable to their situation.One school of thought opposes the idea that suchpersons also take precedence over ad hoc ambass-adors ; and there are some who agree with the argu-ments in favour of this viewpoint, which are basedon the fact that, if the State sending an emissary ofthis kind wishes to ensure that both the head of thespecial mission and itself are given preference, itshould appoint him ad hoc ambassador. Any loss ofprecedence is the fault of the sending State.

(e) In such cases, the diplomatic status of the headof the special mission is determined ad hoc, irre-spective of what is called (in the French texts) therang diplomatique reel. The title of ad hoc ambass-ador is very often given, for a particular occasion,either to persons who do not belong to the diplomaticcareer service or to heads of permanent missions whobelong to the second class. This fact should beexplicitly mentioned in the special letters of credencefor ceremonial or formal occasions.

(/) The issuance of special letters of credencecovering a specific function of this kind is a customarypractice. They should be in good and due form, likethose of permanent ambassadors, but they differ fromthe latter in their terms, since the mission's task isstrictly limited to a particular ceremonial or formalfunction. The issuance of such letters of credence isregarded as an international courtesy, and that is whyheads of permanent diplomatic missions are expectedto have such special letters of credence.

(g) Great difficulties are caused by the uncertaintyof the rules of law concerning the relative rank of thehead of a special mission for a ceremonial and formalfunction and the head of the mission regularly


accredited to the Government of the country in whichthe ceremonial occasion takes place. Under the pro-tocol instructions of the Court of St. James, the headsof special missions have precedence, the heads ofregularly accredited diplomatic missions occupyingthe rank immediately below them, unless they arethemselves acting in both capacities on the specificoccasion in question. This solution is manifestlycorrect and is dictated by the very nature of thefunction, since otherwise it would be utterly point-less to send a special mission.

(h) The situation of the members of a special mis-sion of a ceremonial or formal nature in cases wherethe members are designated as equals and are givencollective letters of credence for the performance ofthe ceremonial or formal function in question is notprecisely known. As stated in paragraph (4) of thecommentary on article 7, practice in this matter is notuniform.

(4) Some members of the Commission requestedthat, despite the Commission's unanimous decision toaccept the rule incorporated in article 10, the SpecialRapporteur's original text should also be included inthe present report for purposes of information.226 Thistext is as follows :

" 1. Where two or more special missions meeton a formal or ceremonial occasion (for example, amarriage, christening, coronation, installation of Headof State, funeral, etc.), precedence among the headsof mission shall be determined in accordance withthe class to which each head of mission belongs byvirtue of his diplomatic title, and within each classin accordance with the alphabetical order of thenames of the States.

" 2. Heads of State, members of ruling families,chairmen of councils and ministers who are membersof the Government represent special classes havingprecedence over the class of ambassadors.

" 3. Heads of special missions who do not possessthe diplomatic rank of ambassador or minister pleni-potentiary and who do not belong to the groupsspecified in paragraph 2 of this article shall constitute,irrespective of the functions they perform, a specialgroup next following that of heads of special missionshaving the rank of minister plenipotentiary.

" 4. The diplomatic title used in determining pre-cedence for the purposes of this article, except inthe case of persons mentioned in paragraph 2, shallbe that indicated in the credentials issued for theperformance of the ceremonial or protocol function.

" 5. Heads of regular diplomatic missions shallnot be considered to be heads of special missions forceremonial or formal functions unless they havepresented credentials issued specially for this partic-ular purpose.

" 6. The rank of the staff of special ceremonialand formal missions shall be determined in accord-ance with the rank of the heads of mission.

" 7. When they appear at the ceremony to whichtheir formal or ceremonial function relates, heads of

special missions shall take precedence over the headsof regular diplomatic missions."This text was communicated to the Commission, but

the Commission did not consider it in detail because ithad decided in principle to regulate the matter byreference rather than by substantive provisions.

Article 11. Commencement of the functionsof a special mission

The functions of a special mission shall commenceas soon as that mission enters into official contact withthe appropriate organs of the receiving State. The com-mencement of its functions shall not depend uponpresentation by the regular diplomatic mission or uponthe submission of letters of credence or full powers.

Commentary

(1) The Vienna Convention on Diplomatic Relationscontains no express provisions on the commencementof the functions of permanent diplomatic missions.

(2) The International Law Commission takes theview that, where the commencement of the functions ofa special mission is concerned, the rules applicable topermanent diplomatic missions do not apply.227

(3) In practice, this matter is governed by a specialusage. The functions of the special mission whichhave been the subject of prior notice and acknowledge-ment begin when the special mission arrives in theterritory of the receiving State, unless it arrives pre-maturely— a situation which depends on the circum-stances and on the notion of what constitutes a reas-onable interval of time. If there has been no priornotice, the functions are deemed to begin when contactis made with the organs of the receiving State. Afurther point is that, in the case of special missions,the commencement of the function need not be deemedto take place only when copies of the letters of credenceor full powers are presented, although this is takeninto account in the case of ad hoc ambassadors. Headsof special missions in general, even in case where theymust have full powers, do not now present either theoriginal or a copy in advance, but only when the timecomes to prove their authority to assume obligationson behalf of the sending State. Thus there is a legaldifference with respect to determining when the func-tion commences, as compared with the case of theheads of permanent missions.

(4) Almost all the instructions by States concern-ing the exercise of functions related to diplomatic pro-tocol are found to contain more rules on the procedurefor welcoming a ceremonial ad hoc mission when itarrives and escorting it when it leaves than on itsreception, which consists of an audience with the Min-ister for Foreign Affairs to introduce the mission, orthe presentation of letters of introduction or copiesof credentials. There are even fewer rules on audiencesby Heads of State for the presentation of letters of

Vide supra, p. 98, article 9.

227 Yearbook of the International Law Commission, 1960,vol. II, p. 116 and p. 180.


credence. Even if the head of a special mission arriveswith special letters of credence addressed to the Headof State, the practice is to present them more expe-ditiously — i.e., though the Chief of Protocol — andthe functions of the mission commence immediately. Anexample of this custom is the case of an ad hoc missionsent to present the condolences of its own Head ofState to the Head of State of another country uponthe death of his predecessor or of a member of theroyal family. In such a case, formal receptions arehardly in order; besides, there is usually little time.Nevertheless, missions of special importance are treatedaccording to the general rules of protocol, both onarrival and when they leave.

(5) Contacts between special missions appointed toconduct political negotiations also generally take placeimmediately following the so-called protocol visit tothe competent official with whom the negotiations areto be held.

(6) In the case of special missions appointed toconduct technical negotiations, it is not the practiceto have either a ceremonial reception or a ceremonialpresentation of credentials. It is customary, however,to make an introductory visit or, if the parties alreadyknow each other, a visit for the purpose of establishingcontact. There is a growing tendency to abandon thecustom whereby the head of the special mission isaccompanied on his first visit by the head of the diplo-matic mission permanently accredited to the receivingState, or by some member of that mission, if the headof the special mission or his opposite number who isto receive him is of lower rank than the head of thepermanent mission. In practice, however, this formalityof introduction is becoming obsolete, and the Com-mission does not deem it essential.

(7) It should be noted that there is an essentialdifference between the reception of the head of a specialmission and the presentation of his letters of credenceor full powers on the one hand and the reception ofthe heads of permanent missions and the presentationof their credentials on the other. This difference relates,first of all, to the person from whom the full powersemanate, in cases other than that of a special ambass-ador or an ad hoc ceremonial mission. A specialambassador and the head of an ad hoc ceremonial missionreceive their letters of credence from the Head of State,as do the regular heads of diplomatic missions of thefirst and second classes, and they are addressed to theHead of the State to which the persons concerned arebeing sent. This procedure is not necessarily followedin the case of other special missions. In accordancewith a recently established custom, and by analogy tothe rules concerning the regularity of credentials inthe United Nations, full powers are issued either bythe Head of State or of Government or by the Ministerfor Foreign Affairs, regardless of the rank of thedelegate or of the head of the special mission.

(8) Again, this difference is seen in the fact thatthe letters of credence of the head of a permanentdiplomatic mission are always in his name, while thisis not so in the case of special missions, where evenfor a ceremonial mission, the letters of credence may

be collective, in the sense that not only the head ofthe mission but the other members also are appointedto exercise certain functions (a situation which couldnot occur in the case of regular missions, where thereis no collective accreditation). Full powers may beeither individual or collective, or possibly supplementary(granting authority only to the head of the mission,or stipulating that declarations on behalf of the Statewill be made by the head of the mission and by certainmembers or by one or more persons named in the fullpowers, irrespective of their position in the mission).It has recently become increasingly common to providespecial missions with supplementary collective fullpowers for the head of the mission or a particularmember. This is a practical solution (in case the headof the mission should be unable to be present throughoutthe negotiations).

(9) In practice, the members and staff of a specialmission are deemed to commence their function at thesame time as the head of the mission, provided thatthey arrived together when the mission began its ac-tivities. It they arrived later, their function is deemedto commence on the day of their arrival, duly notifiedto the receiving State.

(10) It is becoming increasingly rare to accord aformal welcome to special missions when they arriveat their destination, i.e., at the place where the nego-tiations are to be held. In the case of important politicalmissions, however, the rules concerning reception arestrictly observed but this is of significance only fromthe standpoint of formal courtesy and has no legal effect.

(11) Members of permanent diplomatic missionswho become members of a special mission are con-sidered, despite their work with the special mission,to retain their capacity as permanent diplomats; con-sequently, the question of the commencement of theirfunctions in the special mission is of secondaryimportance.

(12) In practice, States complain of discriminationby the receiving State in the reception of special mis-sions and the way in which they are permitted to beginto function even among special missions of the samecharacter. The Commission believes that any suchdiscrimination is contrary to the general principlesgoverning international relations. It believes that theprinciple of non-discrimination should operate in thiscase too; and it requests Governments to advise itwhether an appropriate rule should be included in thearticle. The reason why the Commission has refrainedfrom drafting a provision on this subject is that veryoften differences in treatment are due to the varyingdegree or cordiality of relations between States.

Article 12. End of the functions of a special mission

The functions of a special mission shall come toan end, inter alia, upon:

(a) The expiry of the duration assigned for thespecial mission;

(b) The completion of the task of the specialmission;


(c) Notification of the recall of the special missionby the sending State;

(d) Notification by the receiving State that itconsiders the mission terminated.

Commentary

(1) The Vienna Convention on Diplomatic Relationscontains no rules dealing directly with the end of thefunctions of permanent diplomatic missions. Its treat-ment of the subject is limited to one provision on theend of the function of a diplomatic agent (article 43)and the provision concerning the case of the breakingoff of diplomatic relations or the recall of the mission(article 45).

(2) In its deliberations in I960,228 the InternationalLaw Commission accepted the view that a special mis-sion came to an end for the same reasons as thoseterminating the functions of diplomatic agents belong-ing to permanent missions. However, the accomplish-ment of a special mission's task was added as a specialreason for the termination of its functions.229

(3) The Commission accepted the view of themajority of authors that the task of a special missionsent for a ceremony or for a formal occasion shouldbe regarded as accomplished when the ceremony oroccasion is over.

(4) In the first proposal he submitted in 1960 asthe Commission's Special Rapporteur, Mr. Sandstromexpressed the opinion that it was desirable also toconsider the functions of the special mission endedwhen the transactions which had been its aim wereinterrupted. A resumption of negotiations would thenbe regarded as the commencement of the functions ofanother special mission. Some authors adopt the sameview and consider that in such cases it is unnecessaryfor the special mission to be formally recalled. TheCommission regarded as well-founded the argumentthat the functions of a special mission are ended, toall practical purposes, by the interruption or suspensionsine die of negotiations or other deliberations. It con-sidered it preferable, however, to leave it to the sendingand receiving States to decide whether they deemedit necessary in such cases to bring the mission to anend by application of the provisions of article 12 (c)and (d).

Article 13. Seat of the special mission

1. In the absence of prior agreement, a special missionshall have its seat at the place proposed by the receiv-ing State and approved by the sending State.

2. If the special mission's tasks involve travel or areperformed by different sections or groups, the specialmission may have more than one seat.

Commentary(1) The provision of article 13 is not identical to

that contained in the Vienna Convention on Diplomatic228 Ibid., p. 179-180.3 2 * This addition was proposed by Mr. Jimenez de Arechaga ;

see ibid., p. US.

Relations (article 12). In the first place, permanentmissions must have their seats in the same locality asthe seat of the Government. The permanent mission isattached to the capital of the State to which it is ac-credited, whereas the special mission is usually sentto the locality in which it is to carry out its task. Onlyin exceptional cases does a permanent mission set upoffices in another locality, whereas it frequently occursthat, for the performance of its task, a special missionhas to move from place to place and its functions haveto be carried out simultaneously by a number of groupsor sections. Each group or section must have itsown seat.

(2) Very little has been written on this question,and in 1960 the Commission did not consider it nec-essary to deal with it at length. Its basic thought wasthat the rules applicable to permanent missions in thisconnexion were not relevant to special missions andthat no special rules on the subject were needed. Somemembers of the Commission did not entirely agree,however, because the absence of rules on the subjectmight encourage special missions to claim the right tochoose their seat at will and to " open offices in anypart of the territory of the receiving State ".230

(3) In practice, special missions normally remainat the place designated by mutual agreement, which,in most cases, is not formally established by the send-ing State and the receiving State. Under that agree-ment the special mission generally establishes its officesnear the locality where its functions are to be performed.If the place in question is the capital city of the re-ceiving State and there are regular diplomatic relationsbetween the two States, the official offices of the specialmission are usually on the premises of the sendingState's regular diplomatic mission, which (unless other-wise indicated) is its official address for communicationpurposes. Even in this case, however, the special missionmay have a seat other than the embassy premises.

(4) It is very rare, in practice, for the seat of aspecial mission not to be chosen by prior agreement.In the exceptional case where the special mission'sseat is not established, in advance by agreement betweenthe States concerned, the practice is that the receivingState proposes a suitable locality for the special mis-sion's seat, chosen in the light of all the circumstancesaffecting the mission's efficient functioning. Opinion isdivided on whether the sending State is required toaccept the place chosen by the receiving State. It hasbeen held that such a requirement would conflict withthe principle of the United Nations Charter concerningthe sovereign equality of States if the receiving Statewere to impose the choice of the seat. The Commissionhas suggested a compromise, namely, that the receivingState should have the right to propose the locality, butthat in order to become effective, that choice shouldbe accepted by the sending State. That solution wouldhave certain shortcomings in cases where the proposalwas not accepted. The Commission has left the questionopen.

280 Yearbook of the International Law Commission, 1960,vol. II, p. 116 and pp. 179-180.


(5) The Commission did not go into the detailsof rules to determine the difference between the mainseat and other seats where the special mission's taskmakes it necessary for it to have more than one seat.Usage varies in practice. One solution proposed tothe Commission was that the main seat should be inthe locality in which the seat of the Ministry ofForeign Affairs of the receiving State is situated, orin some other locality chosen by mutual agreement,and that the other seats should be established with aview to facilitating the work of the sections or teams.However, the Commission preferred to leave this ques-tion to be settled by agreement of the parties.

Article 14. Nationality of the head andthe members of the special mission and of members

of its staff

1. The head and members of a special mission andthe members of its staff should in principle be of thenationality of the sending State.

2. Nationals of the receiving State may not be ap-pointed to a special mission except with the consentof that State, which may be withdrawn at any time.

3. The receiving State may reserve the right providedfor in paragraph 2 with regard to the nationals ofa third State who are not also nationals of the sendingState.

Commentary

(1) Article 14 corresponds to article 8 of the ViennaConvention on Diplomatic Relations.

(2) In 1960 the International Law Commissiondid not consider it necessary to express an opinionon the question whether the rules concerning the na-tionality of diplomatic agents of permanent missionsshould also apply to special missions. It even formulatedthe rule that the relevant article of its 1958 draft— article 7 — did not apply directly to special mis-sions.231

(3) The relevant literature, on the other hand, doesnot consider it impossible for nationals of a countryto be admitted by that country as members of specialmissions, but stresses that the problem has been dealtwith differently by various countries at various times.282

(4) In the Commission's view, there is no reasonwhy nationals of the receiving State should not beemployed as ad hoc diplomats of another State, butfor that purpose the consent of the receiving Statehas to be obtained.

(5) Apart from the question whether a national ofthe receiving State can perform the functions of ad hocdiplomat of another State, the problem arises whetheran ad hoc diplomat must possess the nationality ofthe State on whose behalf he carries out his mission.Here again, the International Law Commission ex-

211 Ibid., pp. 179-180.2tl Sir Ernest Satow, A Guide to Diplomatic Practice,

4th edition, London, 1957, pp. 138-141.

pressed no opinion in 1960. Recent practice shows thatnationals of third States, and even stateless persons,may act as ad hoc diplomats of a State, although somemembers of the Commission held it to be undesirablethat they should do so. Practical reasons sometimesmake it necessary to adopt this expedient and in prac-tice it is for the receiving State alone to decide whetheror not such persons should be recognized as ad hocdiplomats.

(6) The Commission has not specifically referredin the text to the possibility that the head of a specialmission or one of its members of staff might have dualnationality. It believes that, in the case of a personwho also possesses the nationality of the receiving State,that State has the right, in accordance with the existingrules on nationality in international law and with thepractice of some countries, to consider such a personon the basis of the characterization theory, exclusivelyas one of its own nationals. In most States, the ideastill prevails that nationality of the receiving Stateexcludes any other nationality, and the argument thateffective nationality excludes nominal nationality is notaccepted in this case. The case of a person possessingmore than one foreign nationality is juridically irrele-vant, since it would be covered by paragraph 3 of thisarticle.

(7) The Commission has also not considered whetherpersons possessing refugee status who are not nativesof the receiving State can be employed, without thespecial approval of the receiving State, as heads ormembers of special missions or of their staffs.

(8) As regards nationals of the receiving Stateengaged locally by the special mission as auxiliary staff,and persons having a permanent domicile in its terri-tory, the Special Rapporteur believes that they shouldnot be subject to the provisions of this article, butrather to the regime applicable in this respect underthe domestic law of the receiving State. The Commis-sion did not deem it necessary to adopt a special ruleon the subject.

(9) Nor did the Commission express any views onthe question whether, in this respect, aliens and state-less persons having a permanent domicile in the ter-ritory of the receiving State should be treated in thesame way as nationals of that State.

Article 15. Right of special missionsto use the flag and emblem of the sending State

A special mission shall have the right to displaythe flag and emblem of the sending State on thepremises of the mission, on the residence of the headof the mission and on the means of transport of themission.

Commentary

(1) Article 15 is modelled on article 20 of theVienna Convention on Diplomatic Relations.

(2) The Commission reserves the right to decideat a later stage whether article 15 should be placed in


the section of the draft dealing with general matters orin the special section concerning facilities, privilegesand immunities.

(3) In 1960, the International Law Commissionrecognized the right of special missions to use thenational flag of the sending State upon the same con-ditions as permanent diplomatic missions.288 In prac-tice, the conditions are not identical, but neverthelessthere are some instances where this is possible. TheCommission's Special Rapporteur, Mr. Sandstrom,cited the case of the flying of the flag on the motorvehicle of the head of a ceremonial mission. Duringthe discussion which took place in the Commission in1960, Mr. Jimenez de Arechaga expressed the viewthat all special missions (and not only ceremonial mis-sions) have the right to use such flags on the ceremonialoccasions where their use would be particularlyappropriate.284

(4) Current practice should be based on both awider and a narrower approach: wider, because thisright is not restricted to ceremonial missions but de-pends on the general circumstances (e.g., special mis-sions of a technical nature moving in a frontier zoneand all special missions on certain formal occasions);and narrower, because this usage is now limited in factto the most formal occasions or to circumstances whichwarrant it, in the judgement of the mission. In practice,however, such cases are held within reasonable limits,and the tendency is towards restriction.

(5) All the rules applicable to the use of the na-tional flag apply equally to the use of the nationalemblem, both in practice and in the opinion of theInternational Law Commission.

(6) In practice, some receiving States assert thatthey have the right to require that the flag of the send-ing State should be flown on all means of transportused by the special mission when it is travelling in aparticular area. It is claimed in support of this require-ment that measures to protect the special mission itselfwill be easier to carry out if the attention of the au-thorities of the receiving State is drawn by an externaldistinguishing mark, particularly in frontier securityzones and military zones and in special circumstances.Some States, however, object to this practice on thegrounds that it very often causes difficulties and ex-poses the special mission to discrimination. The Com-mission holds that this practice is not universally recog-nized and it has therefore not included a rule regardingit in the text of article 15.

Article 16. Activities of special missionsin the territory of a third State

1. Special missions may not perform their functionsin the territory of a third State without Hs consent.

2. The third State may impose conditions whichmust be observed by the sending State.

*" Yearbook of the International Law Commission, I960,vol. II, p. 108, p. 180.

114 Ibid., p. 116.

Commentary

(1) There is no corresponding rule in the ViennaConvention on Diplomatic Relations, but article 7 ofthe Vienna Convention on Consular Relations of 1963provides that a consular post established in a particularState may not exercise consular functions in anotherState if the latter objects.

(2) Very often, special missions from different Statesmeet and carry on their activities in the territory of athird State. This is a very ancient practice, particularlyin the case of meetings between ad hoc missions ordiplomats belonging to States which are in armed con-flict. The International Law Commission did not takenote of this circumstance in 1960; nor have writerspaid much attention to it, but some of them mentionit, particularly where the contact takes place throughthe third State. Whether or not the third State engagesin mediation or extends its good offices, courtesy un-doubtedly requires that it should be informed, and itis entitled to object to such meetings in its territory.

(3) Thus, the States concerned are not entitled tomake arbitrary use of the territory of a third Statefor meetings of their special missions, if this is con-trary to the wishes of that State. However, if the thirdState has been duly informed and does not expressany objection (its formal consent is not necessary), ithas a duty to treat special missions sent in these cir-cumstances with every consideration, to assure themthe necessary conditions to carry on their activities,and to offer them every facility, while the parties con-cerned, for their part, must refrain from any actionwhich might harm the interests of the third State inwhose territory they carry on their activities.

(4) In practice, the prior approval of the thirdState is often simply a matter of taking note of theintention to send a special mission to its territory (suchintention may even be notified orally). If the thirdState makes no objection to the notification and allowsthe special mission to arrive in its territory, approvalis considered to have been given.

(5) The Commission regards as correct the practiceof some States — for example, Switzerland during thewar — in imposing certain conditions which must beobserved by parties sending special missions. The dutyto comply with these conditions is without prejudiceto the question whether, objectively, the missions'activities are considered to be prejudicial to the in-terests of the third State in whose territory they arecarried on.

(6) A question which arises in practice is whetherthe third State must not only behave correctly andimpartially towards the States whose missions meetin its territory by according them equal treatment, butmust also respect any declarations it may itself havemade in giving its prior approval. Since such approvalcan be given implicitly, it must be considered that athird State which goes even further by taking note,without objection, of a request for permission to useits territory is, in accordance with the theory of uni-lateral juridical acts in international law, bound bythe request of the parties concerned, unless it has madecertain reservations.


(7) Intercourse between a special mission of oneState and the permanent diplomatic mission of anotherState accredited to the receiving State must be accordedthe same treatment as the intercourse and activitiesof special missions in the territory of the third State.Such contacts are frequent, and they are referred toby legal writers as irregular means of diplomatic com-munication. They make direct intercourse possible be-tween States which do not maintain mutual diplomaticrelations, even when the States concerned are in armedconflict.

(8) The right of the third State, at any time andwithout being obliged to give any reason, to withdrawits hospitality from special missions in its territoryand to prohibit them from engaging in any activity isrecognized. In such cases, the sending States are obligedto recall their special missions immediately, and themissions themselves are required to cease their activitiesas soon as they learn that hospitality has been with-drawn. The exercise of this right by the third Statedoes not mean that diplomatic relations with the Statesin question are broken off or that the head of themission or its members are declared persona non grata.It merely means that the third State's consent to theactivities of special missions in its territory has beenrevoked. The Commission held that article 16, para-granh 1, was sufficient and that the word " consent "means that the consent of the third State continuesto be required throughout the period during which theactivities of the special missions of the other Statesare taking place.

CHAPTER IV

Programme of Work and Organizationof Future Sessions

36. After discussion at two private meetings heldon 19 and 22 June 1964 and consideration by theofficers of the Commission and the Special Rapporteurs,the Commission, at its 749th meeting, adopted its pro-gramme of work for 1965 and 1966. It decided tocomplete the study of the law of treaties and of specialmissions within that period. As to the other subjectson its agenda, the Commission decided to give priorityto its work on relations between States and inter-governmental organizations. The questions of succes-sion of States and Governments and State responsibilitywill be dealt with as soon as the subjects previouslymentioned have been completed.

37. These decisions were taken having regard, inparticular, to the fact that the term of office of thepresent members of the Commission expires at the endof 1966 and that it is desirable to complete, beforethat date, not only the study of the law of treaties,but also the study of special missions. That topic waschosen in preference to relations between States andinter-governmental organizations in the light of Gen-eral Assembly resolution 1289 (XIII) of 5 December1958, which provided that the question of relationsbetween States and inter-governmental internationalorganizations should be considered " at the appropriatetime, after study of diplomatic intercourse and immu-nities, consular intercourse and immunities and ad

hoc diplomacy has been completed by the UnitedNations . . . " . A draft on special missions had alreadybeen prepared, and several articles of that draft werediscussed at the present session.

38. The need to complete the study of several topicsbefore the end of 1966 led the Commission to raisethe question of the duration of sessions. In order tocomplete its programme for 1964, the Commissiondecided to extend its present session by one week. Itregretted the fact that, by reason of external circum-stances such as the postponement of the dates of thenineteenth session of the General Assembly, it wasnot possible for the Commission to hold a supplemen-tary winter session in 1965, as it had intended. TheCommission believes, however, that it is essential tohold a four-week winter session in 1966, in order tohave at its disposal the minimum time necessary forthe completion of the heavy programme of work ithas to complete before the end of the 1966 session.

39. The Commission intends in 1965, after con-sidering the comments received from Governments,to conclude the second reading of the first part, andas many further articles as possible of the second part,of its draft on the law of treaties, in accordance withsuggestions of the Special Rapporteur. At the samesession, the Commission will continue its study ofspecial missions and of relations between States andinter-governmental organizations. In 1966, the Com-mission will complete the remaining articles of its drafton the law of treaties and the draft on special missions.At the same time and within the limits of the timeavailable, the Commission will also continue its studyof relations between States and inter-governmentalorganizations and undertake further preparatory workon succession of States and Governments and Stateresponsibility, which are to be the main subjects ofits concern during sessions held after 1966.

40. It was therefore decided to ask the Secretariatto request Governments to submit their comments onthe second part of the draft on the law of treaties bvJanuary 1965 at the latest, so that the Commissioncan consider them at its 1965 session ; it was alsodecided to request Governments to submit their com-ments as soon as possible on the third part of thedraft on the law of treaties completed in 1964 by theCommission, so that the whole of the work on the lawof treaties could be completed before the end of 1966.The draft on special missions will be sent to Govern-ments for comments when it is completed in 1965,and Governments will then be requested to submittheir comments in time for the Commission to completeits work on the topic in 1966.

CHAPTER V

Otter Decisions and Conclusionsof the Commission

A. RELATIONS BETWEEN STATES AND INTER-GOVERNMENTAL ORGANIZATIONS

41. The Commission continued the discussion ofthe first report (A/CN.4/161 and Add.l) submitted


in 1963 by the Special Rapporteur, Mr. El-Erian.235

In conjunction therewith the Commission examined alist of questions suggested by the Special Rapporteurin a working paper (A/CN.4/L.104) as a basis ofdiscussion for the definition of the scope and mode oftreatment of the topic. The questions related to :

(a) The scope of the subject [interpretation ofGeneral Assembly resolution i289 (XIII)];

(b) The approach to the subject (either as an in-dependent subject or as collateral to the treatment ofother topics);

(c) The mode of treatment (whether priorityshould be given to " diplomatic law " in its applica-tion to relations between States and internationalorganizations) ;

(d) The order of priorities (whether the status ofpermanent missions accredited to international orga-nizations and delegations to organs of and conferencesconvened by international organizations should betaken up before the status of international organiza-tions and their agents) ;

(e) The question whether the Commission shouldconcentrate in the first place on international organi-zations of a universal character or should deal alsowith regional organizations.

42. At its 755th to 757th meetings, the Commissiondiscussed these questions, and certain other relatedquestions that arose in connexion therewith. The ma-jority of the Commission, while agreeing in principlethat the topic had a broad scope, expressed the viewthat for the purpose of its immediate study the ques-tion of diplomatic law in its application to relationsbetween States and inter-governmental organizationsshould receive priority. Other suggestions made bymembers of the Commission will be considered in thepreparation of a second report by the SpecialRapporteur.

B. CO-OPERATION WITH OTHER BODIES

43. At its 768th meeting, held on 17 July, the Com-mission considered the item concerning co-operationwith other bodies.

44. It took note of the report by Mr. EduardoJimenez de Arechaga (A/CN.4/172)23<J on the workof the sixth session of the Asian-African Legal Con-sultative Committee, held at Cairo from 23 Februaryto 6 March 1964, which he had attended as observerfor the Commission.

45. The Asian-African Legal Consultative Com-mittee was represented by Mr. Hafez Sabek, whoaddressed the Commission.

111 Yearbook of the International Law Commission, 1963,vol. II, pp. 159-185. The discussion of the report was begunat the fifteenth session of the Commission and a workingpaper (A/CN.4/L.103) (ibid., p. 186) was submitted by theSpecial Rapporteur. It was intended to continue the discussionat a session in January 1964, which session, however, wasnot held.

" • Vide supra, pp. 119-124.

46. After considering the standing invitation ad-dressed to it by the Secretary of the Asian-AfricanLegal Consultative Committee to attend the Commit-tee's sessions, the Commission requested its Chairman,Mr. Roberto Ago, to attend the next session of theCommittee as an observer or, if he were unable todo so, to appoint another member of the Commissionor its Secretary to represent the Commission at thatmeeting. The next session of the Committee is to beheld in Baghdad in February 1965.

47. No communication was received at the presentsession from the legal bodies of the Organization ofAmerican States regarding the next session of theInter-American Council of Jurists.

48. The Commission considered a letter addressedto the Secretary of the Commission by Mr. F. Dumon,President of the International Union of Judges, request-ing that the Union should be authorized to collaboratewith the International Law Commission. As the Union'sagenda does not for the time being include itemssimilar to those studied by the Commission, the latterrequested the Secretary to ask the Union to inform himwhen it proposed to study matters relating to thoseconsidered by the Commission, so that the Union'srequest to collaborate with the International LawCommission could then be resubmitted to the Com-mission.

49. At its 768th meeting, the Commission took noteof the memorandum prepared by the Secretariat(A/CN.4/171) concerning the distribution of the docu-ments of the Commission. This memorandum wassubmitted in response to the Commission's request, atits fifteenth session237 in connexion with its considera-tion of the item on co-operation with other bodies.After an exchange of views, the Commission consideredthe possibility of establishing at its next session a smallcommittee to study the problems involved.

C. DATE AND PLACE OF THE NEXT SESSION

50. The Commission decided to hold its next sessionat the European Office of the United Nations from3 May to 9 July 1965.

D. REPRESENTATION AT THE NINETEENTH SESSION OFTHE GENERAL ASSEMBLY

51. The Commission decided that it would be repre-sented at the nineteenth session of the General As-sembly, for purposes of consultation, by its Chairman,Mr. Roberto Ago.

E. TRIBUTE TO THE SECRETARY OF THE COMMISSION

52. At its 767th meeting, held on 16 July, the Com-mission paid tribute to Dr. Yuen-li Liang, Director,Codification Division, Office of Legal Affairs of theUnited Nations, who has acted with high distinctionas Secretary of the Commission since 1949, and whowill retire after the present session.

11T Yearbook of the International Law Commission, 1963,vol. II, p. 225, para. 70.

topic: · of part ii — the first article being numbered 55. the commission now intends, at its...

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