yearbook of the international law commission 1966 volume ii

A/CN.4/SER.A/1966/Add.l

YEARBOOKOF THE

INTERNATIONALLAW COMMISSION

1966Volume II

Documents of the second partof the seventeenth session

and of the eighteenth sessionincluding the reports of the Commission

to the General Assembly

U N I T E D N A T I O N S

YEARBOOKOF THE

INTERNATIONALLAW COMMISSION

1966Volume 11

Documents of the second partof the seventeenth session

and of the eighteenth sessionincluding the reports of the Commission

to the General Assembly

U N I T E D N A T I O N SN e w Y o r k , 1 9 6 7

NOTE

Symbols of United Nations documents are composed of capital letters combinedwith figures. Mention of such a symbol indicates a reference to a United Nationsdocument.

A/CN.4/SER. A/1966/Add. 1

UNITED NATIONS PUBLICATION

Sales No.: 67.V.2

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CONTENTS

PageLAW OF TREATIES (item 1 of the agenda)1

Document A/CN.4/183 and Add.1-4: Fifth report on the law of treaties, by Sir Humphrey Waldock, SpecialRapporteur 1

Document A/CN.4/186 andAdd.1-7: Sixth report on the law of treaties, by Sir Humphrey Waldock, Special

Rapporteur 51

Document A/CN.4/187: Preparation of multilingual treaties: memorandum by the Secretariat 104

Document AICN.4jL.117 andAdd.l: Revised draft articles 112

SPECIAL MISSIONS (item 2 of the agenda) 2

Document A/CN.4J189 and Add.l and 2: Third report on special missions, by Mr. Milan Bartog, SpecialRapporteur 125

REPORTS OF THE COMMISSION TO THE GENERAL ASSEMBLY

Document A/6309/Rev.l: Reports of the International Law Commission on the second part of its seven-teenth session and on its eighteenth session 169

CHECK LIST OF DOCUMENTS REFERRED TO IN THIS VOLUME 365

CHECK LIST OF DOCUMENTS OF THE SECOND PART OF THE SEVENTEENTH SESSION AND OF THE EIGHTEENTHSESSION NOT REPRODUCED IN THIS VOLUME 367

1 Item 2 of the agenda for the seventeenth session.2 Item 3 of the agenda for the seventeenth session.

I l l

LAW OF TREATIES[Item 2 of the agenda for the seventeenth session]

DOCUMENT A/CN.4/183 and Add.1-4

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

[Original text: English][15 November 1965, 4 December 1965,

20 December 1965, 3 January 1966,and 18 January 1966]

CONTENTS

Page

INTRODUCTION 2

The basis of the present report 2

The structure, title and arrangement of the present part II 3

REVISION OF PART II OF THE DRAFT ARTICLES IN THE LIGHT OF THE COMMENTS OF GOVERNMENTS 4

TitleInvalidity, termination and suspension of the operation of treaties 4Proposal of the Special Rapporteur 4

Section 1: The title

Proposal of the Special Rapporteur 4

Article 30: Presumption as to the validity, the continuance in force and operation of a treaty 4

Article 49: Authority to denounce, terminate or withdraw from a treaty or suspend its operation .. 4Comments of Governments 4Observations and proposals of the Special Rapporteur 4

Article 47: Loss of a right to allege the nullity of a treaty as a ground for terminating or withdrawingfrom a treaty 5Comments of Governments 5Observations and proposals of the Special Rapporteur 6

Article 46: Separability of treaty provisions for the purposes of the operation of the present articles 7Comments of Governments 7Observations and proposals of the Special Rapporteur 8

Section 2: Invalidity of treaties

Article 31: Provisions of internal law regarding competence to enter into treaties 9

Article 32: Lack of authority to bind the State 10

Article 33: Fraud 10Comments of Governments 10Observations and proposals of the Special Rapporteur 11

Article 34: Error 12Comments of Governments 12Observations and proposals of the Special Rapporteur 13

Article 35: Personal coercion of representatives of States 14Comments of Governments 14Observations and proposals of the Special Rapporteur 15

Article 36: Coercion of a State by the threat or use of force 15Comments of Governments 15Observations and proposals of the Special Rapporteur 18

Article 37: Treaties conflicting with a peremptory norm of general international law (jus cogens) 20Comments of Governments 20Observations and proposals of the Special Rapporteur 23

1

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

CONTENTS (continued)

PageSection 3: Termination and suspension of the operation of treaties

Article 38: Termination of treaties through the operation of their own provisions 25Comments of Governments 25Observations and proposals of the Special Rapporteur 25

Article 39: Treaties containing no provisions regarding their termination 25Comments of Governments 25Observations and proposals of the Special Rapporteur 27

Article 40: Termination or suspension of the operation of treaties by agreement 28Comments of Governments 28Observations and proposals of the Special Rapporteur 29

Article 41: Termination implied from entering into a subsequent treaty 31Comments of Governments 31Observations and proposals of the Special Rapporteur 31

Article 42: Termination or suspension of the operation of a treaty as a consequence of its breach .. 33Comments of Governments 33Observations and proposals of the Special Rapporteur 35

Article 43: Supervening impossibility of performance 37Comments of Governments 37Observations and proposals of the Special Rapporteur 38

Article 44: Fundamental change of circumstances 39Comments of Governments 39Observations and proposals of the Special Rapporteur 42

Article 45: Emergence of a new peremptory norm of general international law 44Comments of Governments 44Observations and proposals of the Special Rapporteur 45

Article 50: Procedure under a right provided for in the treaty 45Comments of Governments 45Observations and proposals of the Special Rapporteur 46

Article 51: Procedure in other cases 46Comments of Governments 46Observations and proposals of the Special Rapporteur 48

Introduction

1. At the first part of its seventeenth session the Com-mission re-examined the articles on the conclusion,entry into force and registration of treaties containedin part I of its draft articles on the law of treaties, whichit had prepared at its fifteenth sessiont1 and submittedto Governments for their observations. The Commissionprovisionally adopted revised texts of twenty-five articles.One of these (article 3 (bis)) was an article in part II(article 48), relating to treaties which are constituentinstruments of international organizations or which havebeen drawn up within international organizations, whichit decided to include among the "general provisions"at the beginning of the draft articles. The Commissiondeleted four articles and postponed until the resumptionof its seventeenth session in January 1966 its decisionon articles 8,9 and 13, relating respectively to participationin a treaty, opening of a treaty to the participation ofadditional States and accession.

1 Yearbook of the International Law Commission, 1962, vol. II,p. 159.

2. At the first part of the session the Commission alsohad before it the Special Rapporteur's observations andproposals regarding the revision of the first three articlesof part II, articles 30-32 (A/CN.4/177/Add.2). Owing toshortage of time, however, the Commission was unableto begin its re-examination of these articles.

3. At the second part of the session, therefore, the maintask of the Commission will be to re-examine the wholeof part II of the draft articles and to conclude its re-exami-nation of articles 8, 9 and 13.

The basis of the present report

4. The basis of the present report is the same as thatset out in paragraph 5 of the Special Rapporteur's fourthreport (A/CN.4/177), namely, the written replies ofGovernments, the comments of delegations in the SixthCommittee of the General Assembly and the observa-tions and proposals of the Special Rapporteur resultingtherefrom. The comments of Governments and delega-tions on part II of the draft articles are contained in the

Law of Treaties

two mimeographed volumes of Secretariat documentA/CN.4/175 and in addenda 1-4 to that document.2

5. The Commission, for reasons of convenience, isre-examining the draft articles in the same general orderas that in which they were provisionally adopted at thefourteenth, fifteenth and sixteenth sessions. In para-graph 27 of its report on the work of the first part ofits seventeenth session, however, the Commission hasrecognized that, in rearranging the draft articles as asingle convention, it will be necessary to give furtherconsideration to the order in which the various articlesshould be placed. The Special Rapporteur, in paragraph 7of his fourth report (A/CN.4/177), has already expressedthe view that in the final draft the articles concerningobservance, interpretation and application of treatiesshould be placed before those concerning invalidity andtermination, i.e. before the present part II. This viewis based on a number of different considerations. First,to place the rules concerning invalidity and terminationimmediately after conclusion, entry into force andregistration may seem to give too much importance togrounds of nullity and termination and to give pactastint servanda the appearance almost of a residuary rule.Secondly, termination ought logically to follow, notprecede, application of treaties, and it is at the same timeconvenient to deal with invalidity in juxtaposition totermination. Thirdly, termination has affinities withmodification of treaties, which also should logicallyfollow, not precede, application. Fourthly, there is someadvantage in stating the rules regarding interpretationof treaties early rather than late in the draft articles,since these rules affect the meaning to be given to certainother articles.

6. The final structure and order to be given to the draftarticles was not a matter of great moment in re-examiningpart I, because most of the articles contained in thatpart find their natural place at the beginning of the draft.The Commission may prefer not to arrive at any settledconclusions on this matter until its re-examination ofthe draft articles is further advanced. Nevertheless, inapproaching the re-examination of parts II and III itseems desirable for the Commission to have in its minda general perspective, however provisional, of the prob-able structure and order of the articles which it willultimately adopt; for in these parts the arrangement ofthe different topics may in some cases influence thedrafting of the articles.

7. The general arrangement of the draft articles whichthe Special Rapporteur tentatively envisages for theirultimate form is as follows: part I"General provi-sions", consisting of articles 0, 1, 2 and 3 (bis); part II"Conclusion, entry into force and registration of trea-ties", consisting of articles 3, 4 and the remainingarticles of the existing part I; part III"Observanceand interpretation of treaties", consisting of article 55(pacta sunt servanda) and articles 69-73; part IV

2 Addendum 5, containing comments submitted later by theGovernments of Pakistan and Yugoslavia, was issued on 23 Febru-ary 1966. The written comments by Governments are reproducedin this volume (see annex to document A/6309/Rev.l).

" Application of treaties ", consisting of articles 56-64;part V"Invalidity, termination and suspension ofthe operation of treaties", consisting of articles 30-54(except article 48, which is now article 3 (bis), and subjectto certain other qualifications; part VI"Modificationof treaties", consisting of articles 65-68.

The structure, title and arrangement of the present part II

8. Structure. In paragraph 7 of his fourth report, theSpecial Rapporteur had tentatively suggested that inval-idity and termination, procedure for invoking a groundof nullity, termination, etc., and the legal consequencesof termination, nullity, etc., should be divided into fourseparate parts. After further reflection and after studyingthe comments of Governments on part II, the SpecialRapporteur considers it preferable to adhere to the presentstructure under which these four topics are all includedin one part. In the first place, although invalidity andtermination are quite separate topics, they raise a numberof common problems, e.g. separability, preclusion,procedure for invoking a ground of invalidity or termina-tion, and the legal consequences which follow; and itis accordingly convenient for purposes of drafting todeal with the two topics in one part. In the second place,a number of Governments have expressed concernregarding the danger to the security and stability oftreaties which the articles on invalidity and terminationmay involve; and to devote four separate parts to thesetopics may seem to exaggerate their role in the law oftreaties. It therefore seems better to combine invalidityand termination in one part as at present.

9. Title. The existing title of the present part II, whichreads "Invalidity and termination of treaties", does notfully cover the contents of the part, which also deals withthe suspension of the operation of treaties. Accordingly,it seems preferable to call the part: "Invalidity, termina-tion and suspension of the operation of treaties ".

10. Arrangement of the articles. The emphasis placedby Governments in their repliesand indeed by membersof the Commission during the fifteenth sessiononthe need to safeguard the security and stability of treatiesleads the Special Rapporteur to think that it may beadvisable to place certain of the articles which limit orregulate the right to invoke grounds of invalidity, termina-tion or suspension before, rather than after, the substan-tive articles dealing with these grounds. It will then bemade apparent at the outset of the part dealing withinvalidity and termination that specific rules restrictthe freedom of States to have recourse to grounds ofinvalidity and termination for the purpose of resilingfrom their treaty obligations. The desirability of puttingthese rules before, rather than after, the substantivearticles dealing with the grounds of invalidity and termi-nation is also indicated by the fact that in their commentson fraud and error certain Governments have advocatedthe imposition of a time-limit on invoking these grounds,without apparently taking into account the relevance ofarticle 47 regarding the loss of a right to allege groundsof invalidity or termination as a result of waiver orpreclusion.


11. The Special Rapporteur accordingly suggests thatthe present part should begin with a section entitled"General rules" and comprising: article 30 (Presump-tion as to the validity, continuance in force and operationof a treaty); article 49 (Authority to denounce, terminateor withdraw from a treaty or suspend its operation);article 46 (Separability of treaty provisions); article 47(Loss of a right to invoke a ground of invalidity, termi-nation or suspension).

12. A number of Governments have underlined theimportance which they attach to the possibility of inde-pendent adjudication with regard to the matters dealtwith in certain of the articles. This question was muchdiscussed at the fifteenth session and ultimately the Com-mission adopted in article 51a general provision regardingthe procedure for invoking a ground of invalidity,termination, etc., which represented the highest measureof common agreement in the Commission on the solutionof disputes concerning the application of the articles inthe present part. The question therefore arises whetherto transfer this article also to section 1. There is, however,a larger question as to whether the procedure laid downin article 51 should be given a more general applicationto all disputes concerning the application of the presentarticle. This question is examined in the Special Rap-porteur's observations on article 51, which he has preferrednot to deal with among the general articles in section 1.

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

TitleInvalidity, termination and suspension ofthe operation of treaties

Proposal of the Special Rapporteur

The Special Rapporteur, for the reason given in para-graph 9 of the introduction to this report, proposesthat the title of the part should be enlarged so as to cover"suspension of the operation of treaties", which is oneof the topics dealt with in this part.

SECTION 1 : THE TITLE

Proposal of the Special Rapporteur

The existing title to section 1 is "General provision"and the sole article which the section contains is article 30.The Special Rapporteur, in accordance with his observa-tions in paragraphs 9 and 10 of the introduction, proposesthat the section should now be entitled "General rules"and should include four articles (articles 30, 49, 46and 47). The title "General rules" is proposed becausethere is already a title "General provisions" at thebeginning of the draft articles.

Article 30.Presumption as to the validity,the continuance in force and operation of a treaty

The observations and proposals of the Special Rappor-teur regarding this article are contained in addendum 2to his fourth report (A/CN.177/Add.2).

Article 49.Authority to denounce, terminate or withdrawfrom a treaty or suspend its operation

Comments of Governments

Portugal. The Portuguese Government expresses itsgeneral acceptance of the principle that the power of aperson to represent his State for denouncing, terminating,withdrawing from or suspending the operation of atreaty should be governed by the same rules as thoselaid down in article 4 for concluding a treaty.

United Kingdom. The United Kingdom Governmentobserves that article 4 made a distinction in certaincircumstances between, on the one hand, authority tonegotiate, draw up and authenticate a treaty and, on theother, authority to sign; but that it did not employ theword "conclude", which is found in article 49. Theresult, in its view, is to leave it uncertain whether underarticle 49 the rule applicable to authority to denounceis that relating to authority to negotiate, draw up andauthenticate or that relating to authority to sign.

United States. In the view of the United States Govern-ment, article 49 constitutes a useful clarification of theposition regarding authorization, or evidence of author-ization, in the cases covered by the article.

Cypriot delegation. The Cypriot delegation agrees thatthe rules laid down in article 4 should also apply toevidence of authority to perform acts with regard to thenullity of a treaty.3

Observations and proposals of the Special Rapporteur

1. The point made by the United Kingdom as to thelack of precision in the present formulation of article 49appears to be well-founded. Moreover, article 4, whicharticle 49 applies mutatis mutandis, has itself undergoneextensive revision at the first part of the seventeenthsession, so that article 49 would in any event requirereconsideration.

2. The rules governing the authority of a person torepresent the State in the negotiation and conclusion oftreaties are now expressed in article 4 in terms of thecases in which the production of an instrument of fullpowers is required. This does not, however, appear tomake them any less suitable for application in the contextof article 49. The real problem, as the comment of theUnited Kingdom indicates, is whether to apply the rulesgoverning negotiation or those governing signatureor perhaps those governing the expression of consent tobe bound.

3. The Special Rapporteur suggests that it may benecessary to differentiate between: (a) evidence of author-ity to invoke a ground of invalidity, termination, etc.,which may be regarded as an opening of negotiations forthe converse purpose of annulling or terminating atreaty, and (b) evidence of authority to carry out thedefinitive act of annulling, terminating, etc., a treatywhich may be regarded as the expression of the State'swill not to be bound. In other words, it may be necessaryto make the parallel between article 49 and article 4

3 Official Records of the General Assembly, Eighteenth Session,Sixth Committee, 783rd meeting, para. 24.

Law of Treaties

even closer by providing different rules for the negotiationof the annulment, termination, etc., of a treaty and forthe performance of the act expressing definitely the willof the State not to be bound. This would seem to be atonce more logical and more consistent with principle.

4. Accordingly, the Special Rapporteur proposes thatarticle 49 should be revised to read as follows:

Evidence of authority to invoke or to declare the invalidity,termination or suspension of the operation of a treaty

1. The rules laid down in article 4 regarding evidence ofauthority to represent a State for the purpose of negotiating atreaty apply also to representation for the purpose of invokinga ground of invalidity, termination, withdrawal from or suspensionof the operation of a treaty.

2. The rules laid down in article 4 regarding evidence ofauthority to represent a State for the purpose of expressing itsconsent to be bound by a treaty apply also to representation forthe purpose of expressing the will of a State to denounce asinvalid, terminate, withdraw from or suspend the operation ofa treaty.

Article 47. Loss of a right to allege the nullity ofa treaty as a ground for terminating or withdrawingfrom a treaty


Israel. The Government of Israel makes four pointswith regard to this article. First, it observes that the word"nullity", which occurs in the opening phrase, is notin fact used in any of the articles to which reference ismade in the present article. Secondly, it draws attentionto the fact that the case of a right to require the suspensionof the operation of a treaty is omitted from the article.Thirdly, it expresses the view that, the principle ofarticle 47 being one of general application, the articleshould distinguish between that general principle andthe specific concept of tacit consent as employed inpart I of the draft articles (see paragraph 2 of its commentson part I). Fourthly, it feels that the drafting of the openingphrase of the article could be simplified by being wordedmore positively on the following lines:

"A State may not rely upon articles 314 to 35 and42 and 44 if that State, after having become aware ofthe facts giving rise to the application of those articles,shall have elected by conduct or otherwise to consideritself bound...".

This text would also, it suggests, have the advantage ofmaking redundant the specific reference to "waiver",which it feels to be a complicating factor in the article,and of avoiding the phrase "debarred from denying",which it feels to be awkward. It further suggests that thecommentary should make it clear that the "election"of the State under the article would be presumed afterthe lapse of a reasonable period of time, the period beingdependent on all the circumstances of the case.

Jamaica. Although not making any point in regard tothe present article, the Jamaican Government in itscomments on article 33 expresses the opinion that a

4 In its comments on article 31 the Government of Israel suggeststhat that article also should be subject to the application of thegeneral rule contained in the present article.

defrauded party should take steps to invalidate its consentto the treaty within a stated time after the discovery ofthe fraud; and that, if it does not, it should be deemedto have subsequently acquiesced in the fraud.

Netherlands. The Netherlands Government considersthat this article should be made applicable also toarticle 31 (failure to comply with provisions of internallaw). In its view, restricting the plea of invalidity followsinherently from the primacy of international law. Itfurther queries whether article 47 should not also applyto cases under article 36 (coercion of a State by the threator use of force). On the assumption, however, that theword "force" in article 36 means only "armed agres-sion", the Netherlands Government is prepared to concurin the view that article 36 should not be brought withinthe rule in article 47.

Portugal. While generally approving the principlecontained in the article, the Portuguese Government callsattention to what it feels must be an inexactitude in thetext where the draft refers to articles 32 to 35 rather thanto articles 31 to 34. Having noted that the principle canbe relevant only when the application of a treaty isdependent on the attitude of the parties, it points outthat article 35 (personal coercion of a representative)provides for the absolute nullity of the treaty, not fora right to invoke the fact of coercion; and it does not seehow article 35 can be affected by the principle in thepresent article. At the same time, since article 31 (provi-sions of internal law regarding competence to enter intotreaties) provides that the validity of consent may bedisputed by a State whose representative acted in manifestviolation of its domestic law, it does not understand whythat article should be excluded from the operation of theprinciple.

Sweden. The Swedish Government considers that thisarticle is an indispensable complement to the rest of thedraft; and that it should be extended to cover casesfalling under article 31.

United States. The United States Government expressesthe view that provisions along the lines of article 47 areessential to prevent abuses of the rights set forth in thearticles to which it refers. Indeed, it suggests that thearticle should be placed earlier in the draft, in front ofthe articles to which it applies, or, alternatively, thateach of those articles should contain an express referenceto article 47, in order to avoid any risk of their beinginterpreted out of context. It also suggests that the textwould be clearer if it used the phrases "articles 32through 35" and "articles 42 through 44" instead of"articles 32 to 35" and "articles 42 to 44". In addition,in its comments on articles 33 (fraud) and 34 (error) itsuggests the desirability of laying down specific time-limits for invoking those grounds of invalidity.

Salvadorian delegation. The Salvadorian delegationremarks that in the Spanish text the word "perdida"used in the title has no specific legal meaning and shouldbe replaced. It further draws attention to paragraph (5)of the commentary, where the Commission states thatthe governing consideration for the application of theprinciple contained in the present article would be thatof good faith, and that the principle would not operate


if the State in question had not been aware of the factsgiving rise to the right, or had not been in a positionfreely to exercise its right to invoke the nullity of thetreaty. It thinks that this consideration requires carefulstudy if it is not to give rise to serious errors.5


1. Place and scope of the article. The Special Rapporteur,in paragraph 10 of the introduction to this report, hassuggested that the present article should be placed insection 1 as a "general rule". The reason is that thearticle appears to affect the operation of all the articleswhich recognize rights to invoke particular grounds ofinvalidity or termination. If it does not affect cases of"jus cogens" falling under articles 36, 37 and 45, thatis only because these articles provide for the automaticavoidance of the treaty in those cases. One advantage oftransferring article 47 to section 1 is that it will indicateat the outset that a right to invoke the invalidity ortermination of a treaty is not unrestricted and that thesecurity and stability of treaty relations are also to betaken into account. Otherwise, it might be desirable, asone Government has suggested, to make express referenceto the rule in article 47 in each of the articles which aresubject to it.

Article 47, as at present formulated, does not applyto article 31, which relates to invalidity on the ground ofa failure to comply with a provision of internal law. Anumber of Governments, in comments on this article oron article 31, have questioned the omission of article 31from the operation of the rule in article 47, and theSpecial Rapporteur is of the opinion that article 31clearly ought to be brought within that rule.2. The Government of Israel's objection to the use ofthe word "nullity" is well-founded, since the Commissionin drafting articles 31-35 decided to speak of "invalida-tion" of the consent rather than of the "nullity" of thetreaty. It is therefore desirable here, as in article 30, toreplace the word "nullity", in the title and in the openingphrase, by "invalidity" in order to bring the languageinto line with that used in the substantive articles. Thesame Government's point that the article omits to covercases of "suspension of the operation of a treaty" isalso well-founded and has to be taken into account inrevising the text.

3. The Government of Israel's suggestion that thearticle should distinguish between the general principlewhich it contains and "the specific concept of tacitconsent as employed in part I" seems, however, to raiseunnecessary problems. Admittedly, the rule formulatedby the Commission regarding "tacit consent" to reserva-tions, which now appears in paragraph 5 of article 19of the revised draft, may be viewed as a rule concerningthe loss of a right to object to a reservation. It is alsotrue that the rule in the present article can be viewed asone concerning implied consent to accept a treaty, orpart of a treaty, which might otherwise not be bindingby reason of a ground of invalidity, termination, or

suspension. But although similar legal concepts mayunderlie paragraph 5 of article 19 and the provisions ofthe present article, that does not seem to call for nicedistinctions of principle to be drawn between the twocases in the present article, however appropriate it mightbe to do so in a code. Article 19, paragraph 5, formulatesa special rule for the special context of reservations, andthere seems to be no need to refer to it or distinguishit when formulating an analogous but not identical rulein the different contexts of invalidity and termination.

4. The Special Rapporteur also has doubts about thesame Government's suggestion for simplifying the draftingof the opening phrase of the article. If this suggestionwere adopted, it would be necessary, before the rulewould operate, to establish affirmatively that the Statein question had "elected by conduct or otherwise toconsider itself bound by the treaty". Although the broadscope of the rule might not be very different, its contentwould have been slightly modified. It is not quite thesame thing to be required to show affirmatively that aState has by its conduct actually elected to accept some-thing as it is to be required to show that it is precludedby its conduct from denying that it has so elected.Article 47 was intended by the Commission to apply tocertain grounds of invalidity and termination a rulegiving effect to the principle of preclusion (estoppel)found in cases such as that concerning the Temple ofPreah Vihear. In the Temple case the rule was expressedby the Court in negative form: "Thailand is nowprecluded by her conduct from asserting that she did notaccept it".6 The effect of the principle of preclusionmay equally be stated in positive form in terms of animplied agreement to be bound notwithstanding a rightoriginally to invoke a particular ground of invalidityor termination. In some cases there may be evidence ofan actual agreement.7 But, having regard to the natureof the principle of preclusion, it seems desirable, ifthe article were to be framed in an affirmative form, torefer specifically to cases both of express agreement andof agreement implied from conduct. The term "waivedthe right" used in sub-paragraph (a)a term familiarin this context in common law systemswas, of course,designed to cover cases of express agreement. Thoughno "complicating factor" is thought to be introducedby this term, it may be preferable to use a more mundaneexpression.

5. Two Governments, in their comments on articles 33(fraud) or 34 (error), have suggested that a specific time-limit should be stated within which the right to invokethe ground of invalidity must be exercised; and theGovernment of Israel has suggested that the commentaryshould make it clear that the election of a State to bebound would be presumed after the lapse of a reasonableperiod of time, the period being dependent on all thecircumstances of the case. The Commission, it is true,has thought it appropriate to lay down a specific time-limit of one year in the particular case of the right to

6 Official Records of the General Assembly, Eighteenth Session,Sixth Committee, 782 nd meeting, para. 7.

6 I.C.J. Reports 1962, p. 32.7 In the Temple case, in addition to applying the principle of

preclusion, the Court held that there had been an actual acceptanceof the erroneous map.

Law of Treaties

object to reservations. But there the context withinwhich the principle of preclusion or tacit consentoperates is well-defined and limited. Article 47, however,covers a variety of cases in which the context for theoperation of the principle may differ widely; e.g. thecase of a fundamental change of circumstances is quitedifferent from that of fraud or error. Moreover, evenwithin each class of case the circumstances may varyalmost infinitely. Accordingly, it does not seem eitherpossible to lay down a general time-limit for all cases oradvisable to attempt to lay down a particular time-limitfor each ground of invalidity, termination or suspension.No doubt, as the Government of Israel implies, the funda-mental concept is that a State must invoke a ground ofinvalidity, termination or suspension within a reasonableperiod of time, having regard to all the circumstancesof the particular case. But the Commission has manifesteda certain aversion to formulating rules expressly in termsof what is "reasonable". On the other hand, in article 17it has had recourse to the concept of "undue delay",and may find this expedient an appropriate solution alsoin the present article.6. The basic problem is whether the rule should bestated in the terms of a preclusion or in terms of animplied agreement. The Special Rapporteur is inclinedto think that, if article 47 is transferred to. section 1 asa "general rule", it may be better to formulate it interms of an implied agreement. In that event and in thelight of the foregoing observations the title and the textmight be revised to read as follows:

Relinquishment of the right to invoke a ground of invalidity,termination, withdrawal or suspension

A State may not invoke any ground for invalidating, terminat-ing, withdrawing from or suspending the operation of a treatyunder articles 31 to 35 inclusive or articles 42 to 44 inclusive if,after becoming aware of the facts giving rise to such ground,the State:

(a) shall have agreed to regard the treaty as valid or, as thecase may be, as remaining in force; or

(b) must be considered, by reason of its acts or its unduedelay in invoking such ground, as having agreed to regard thetreaty as valid or, as the case may be, as remaining in force.

Article 46.Separability of treaty provisions for thepurposes of the operation of the present articles

Comments of GovernmentsIsrael. The Government of Israel considers that

article 32 should be included among the articles coveredby the rule laid down in the present article.

Netherlands. The comments of the Netherlands Govern-ment are set out in an annex to its reply, and are expressedin a form which makes it difficult to present an exactanalysis of them. While approving of the inclusion of thearticle, the Netherlands Government appears to makethe following main points. First, it considers that the rulein article 46 should be made applicable to furtherarticles, e.g. articles 31, 32, 36, 37 and 39. Secondly,it considers that both the "objective" and the "subjec-tive" tests of separability contained in paragraph 2 ofthe article involve certain difficulties. As to the "objec-tive" test in paragraph 2(a), it says that cancellation ofpart of a treaty, although it might not "interfere with

the operation of the remaining provisions", mightnevertheless run counter to the object and purpose of thetreaty. As to the subjective test, it interprets paragraph 2(b)as requiring the fact that acceptance of the clauses inquestion was not an essential condition of the consentto the treaty as a whole to be proved either from the textof the treaty or from statements made by both parties;and maintains that this is not very rational. It says thatwhat may be essential to one party may be precisely theopposite to the other; that if, during the negotiations, nodifficulties arise in regard to certain texts, there will be no-thing whatever to indicate what is essential to them andwhat is not; and that the parties may well change theirminds, during the period of the treaty's operation, regard-ing the value they attach to particular clauses. It furthersays that, if difficulties arise after a treaty has been con-cluded, a solution will either be found by the partiesthemselves or it will not; and that no provisions of aconvention on the law of treaties, if they are just andnot merely designed to cut Gordian knots, could ever beso clear-cut as to exclude the possibility of each party'sinvoking them in support of its contentions. In its view,therefore, the question is whether the courts should begiven directives in the draft articles as to the solutionof difficulties.

The Netherlands Government suggests that a broadlyworded article on the following lines might meet the case:

"1. Except as provided in the treaty itself, the nullity,termination or suspension of the operation of a treatyor withdrawal from a treaty shall in principle relateto the treaty as a whole.

"2. If a ground mentioned in articles 31, 32, 33, 34,35, 36, 37, 39, 42, 43, 44 and 45 for nullity, termination,suspension of the operation of a treaty or withdrawalfrom a treaty, applies only to particular clauses of atreaty, and a party to the treaty wishes to uphold theremainder of the treaty, the other party or partiesshall accept the continuing validity and operation ofthe remainder of the treaty, unless such acceptancecannot reasonably and in good faith be required fromsuch other party or parties.

"3. The provisions of paragraph 2 shall not applyif:

(a) the clauses in question are not separable fromthe remainder of the treaty with regard to theirapplication; or

(b) it appears either from the treaty or from thestatements made during the negotiations thatacceptance of the clauses in question was an essentialelement of the consent of a party to the treaty as awhole."

It observes that paragraphs 1 and 3 of the suggestedarticle are largely modelled on the Commission's draft,and are accordingly open to the same objections as ithas raised to the corresponding parts of the Commission'stext. However, it believes that these objections are prac-tically eliminated by paragraph 2 of its text, which makesthe whole matter subject to the rules of good faithbetween the contracting parties.

Portugal. On the basis of the balance established bythe conditions set out in paragraph 2, the Portuguese

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

Government has no fundamental objection to the principleof indivisibility provided for in the article.

Sweden. The Swedish Government feels that the articleis on the whole a most useful and necessary complementto the exposition of grounds of nullity and termination.At the same time, it draws attention to the apparentand presumably inadvertentreference in sub-para-graph 1 to the possibility of a treaty's containing provi-sions about its own nullity.

United States. The United States Government thinksthat the article is useful in clarifying, to some extent,the manner in which the articles mentioned in it are tobe applied. However, it finds the expressions "articles 33to 35" and "42 to 45" somewhat misleading, evenalthough their meaning can be ascertained by studyingthe articles in question. It would prefer the text to read"articles 33 through 35" and "42 through 45". Inaddition, it considers that article 37, if it is retained,should be made subject to the present article.

Bulgarian delegation. The Bulgarian delegation con-siders that the Commission was quite right, while takingthe principle pacta sunt servanda into account, to subjectthe severability of clauses to the double condition setforth in paragraph 2 of the present article.8

Cypriot delegation. The Cypriot delegation notes thatparagraph 1 makes it clear that the principle of severabilitydoes not apply in cases of coercion of the State (article 36)or jus cogens (article 37). 9

Syrian delegation. After noting the effect of the Com-mission's proposals regarding severability the Syriandelegation observes that there is no reason why theparties to a treaty should be deprived of the benefit ofprovisions to which no one objects. It further callsattention to its proposal that the operation of the prin-ciple should be extended to article 20, dealing with theeffect of reservations.10

Uruguayan delegation. In so far as the article is directedtowards fostering respect for treaty obligations, it hasthe support of the Uruguayan delegation.u


1. Place and scope of the article. The Special Rapporteur,in paragraph 10 of the introduction to this report, hassuggested that this article should be included in section 1as a "general rule". It is true that the article, as atpresent formulated, is expressed to govern only casesfalling under articles 33 to 35 and 42 to 45. However, thesuggestion made by two Governments that the rulecontained in the present article should be extended so asto cover article 32 appears to be sound. There may alsobe a case, as the Netherlands Government considers,for extending the rule to cover article 31, because certaintypes of failure to comply with a provision of internallaw might relate to a particular clause of a treaty and notto the conclusion of the whole treaty. If article 46 is

8 Official Records of the General Assembly, Eighteenth Session,Sixth Committee, 788th meeting, para. 11.

6 Ibid., 783rd meeting, para. 23.10 Ibid., 786th meeting, para. 14.11 Ibid., 792nd meeting, para. 22.

transferred to section 1, it will have the advantage ofmaking it unnecessary to make express reference to the"separability" rule in the substantive articles settingout grounds of invalidity, termination, etc.

Both the Netherlands and the United States Govern-ments maintain that the rule in article 46 should be madeapplicable to cases falling under article 37 (conflict witha norm of jus cogens). Some members of the Commissionexpressed the same view at the fifteenth session duringthe discussion of article 37.12 The majority, however,considered that in the case of a conflict with a norm ofjus cogens, the invalidity should attach to the wholetreaty and that it should be left to the parties to bringthe treaty into harmony with international law by makingthe necessary changes in its terms. That being so, theSpecial Rapporteur confines himself to drawing attentionto the opinion of the two above-mentioned Governments.The Netherlands Government maintains that yet anotherarticle, namely article 39, which deals with denunciationor withdrawal under a right implied from the characterof the treaty or from the circumstances of its conclusion,should be brought within the rule. This may perhaps bethought to introduce an extra complication into analready delicate problem of interpretation. On the otherhand, there does not seem in principle to be any reasonwhy the rule of separability should be excluded in thesecases. Accordingly, in preparing his revised draft theSpecial Rapporteur has included within the rule casesfalling under article 39.

2. The Special Rapporteur feels considerable doubtregarding the reformulation of the article proposed bythe Netherlands Government. It may be true that theso-called "objective" and "subjective" criteria con-tained in paragraphs 2(a) and (b) of the Commission'stext are not so clear-cut as to exclude the possibility ofeach party's invoking them in support of its contention.This may also be said of some other provisions of thedraft articles and, indeed, of many rules both of inter-national law and municipal law. But it does not diminishthe value of laying down as exact criteria as possiblewhich, when applied in good faith by the parties, mayprovide the basis for determining their legal rights. TheNetherlands Government appears to go too far in imply-ing that the "directives" contained in article 46 canonly serve a useful purpose when the question of separa-bility comes before a court. The Commission, in formulat-ing the draft articles, is entitled to assume that theparties will respect the rule pacta sunt servanda and willinterpret and apply the treaty in good faith. It is alsoentitled to assume that in applying the provisions of thepresent articles the parties will equally act in good faith.This being so, the Special Rapporteur believes that thecriteria laid down as the test of separability in the Com-mission's text of article 46, if not so precise as to excludeany possibility of dispute, are nevertheless meaningfuland useful.

3. The new provisionparagraph 2'Which is the basisof the Netherlands Government's proposal appearsfor the same reason to be open to question. Its chief

12 Yearbook of the International Law Commission, 1963, vol. II,p. 199, para. 5.

Law of Treaties

purpose is to make explicit the element of good faith inthe application of the rule of separability. As stated inthe previous paragraph, this element is already present,and doubly present, in article 46: first, because the rulepacta sunt servanda governs the application of the treatybetween the parties; and secondly, because it also governsthe application of the present articles. If, on the otherhand, the reference to "good faith" is intended to add afurther requirement additional to the two criteria laiddown by the Commission, then it seems to introduce anelement of ex aequo et bono into the rule which mightdeprive those criteria of much of their value. OtherGovernments appear to have considered paragraphs 2 (a)and (b) of the Commission's text to be satisfactory.

4. The Special Rapporteur suggests, however, that theformulation of article 46 needs reconsideration from adifferent point of view. At present the rule regardingseparability of treaty provisions is stated partly inarticle 46, which specifies the general conditions necessaryfor separation to be possible, and partly in the individualarticles which lay down whether separation is admissiblewith respect to each particular ground of invalidity,termination, etc. Clearly, if the rule of separability isto be transferred to section 1 and formulated as a generalrule, the new article will have to state both the generalconditions and the specific cases in which separation isor is not admissible. At the same time, the existingprovision in the individual articles appears to the SpecialRapporteur to be formulated in a way which is a littleequivocal on the question whether separation is in eachcase an option or the rule. For example, in article 34(error) and article 44 (fundamental change of circum-stances) it is provided that, under the conditions specifiedin article 46 (the separability conditions) an error or afundamental change which relates to the particularclauses "may be" invoked with reference to thoseclauses alone. It is not clear what will be the positionif one party invokes the error or fundamental change asinvalidating or terminating particular clauses while theother claims that it affects the whole treaty; nor whatwill be the position in the reverse case where one partyinvokes it with reference to the whole treaty and theother then claims to limit it to particular clauses. Inshort, the question is whether, when the conditions forit exist, separation is a matter of law or discretion.

5. The Special Rapporteur considers that, in the interestsof the security and stability of treaties, the general prin-ciple should be that, whenever the conditions for separa-bility exist, the scope of a ground of invalidity, termination,etc., should be limited to the particular clauses to whichit relates. To this principle, however, there would besome exceptions. Thus, in cases of fraud by one party(article 33) or of personal coercion exercised by one partyon the other's representative (article 35) the party whoseconfidence has been thus gravely abused by the otherparty should, it is thought, have the option to invalidate,terminate, etc., the whole treaty or the clauses to which theother party's misconduct particularly relates. In addition,the Commission decided at the fifteenth session that incases of the coercion of the State itself by the threator use of force (article 36) or of conflict with a rule of

jus cogens (article 37) the principle of separability shouldnot be applicable at all. Subject to these exceptions, itwould seem logical that separation should be the rule,not a mere option.

6. The Special Rapporteur thinks it desirable, however,to draw attention to the possible impact of the separa-bility rule on one other article, namely, on article 41,which deals with the termination of a treaty by implicationfrom entering into a subsequent treaty. At both thefifteenth and sixteenth sessions the Commission gavecareful consideration to the relation between the questionof implied termination through entering into a subsequentincompatible treaty and that of the application of treatieshaving incompatible treaty provisions. It concludedthat, although they may overlap to a certain extent, thetwo questions are distinct; and in consequence the"termination" aspect has been dealt with in article 41and the "application" aspect in article 63. The problemis whether the provisions of article 63 make it eitherunnecessary or undesirable to apply the separabilityrule to the cases of implied termination dealt with inarticle 41. The Commission's conclusion as to the distinc-tion between "implied termination" and applicationof incompatible provisions seems to hold good forparticular clauses as well as for the whole treaty. Accord-ingly, it seems logical to admit the operation of the separa-bility rule in cases of implied termination under article 41;and, in consequence, the revised draft of article 46formulated in the next paragraph does not exceptarticle 41 from its provisions.

7. In the light of the above-mentioned considerations,the Special Rapporteur suggests that the present articleshould be transferred to section 1 and revised to readas follows:

Grounds for invalidating, terminating, withdrawing fromor suspending the operation only of particular clauses of a treaty

1. A ground for invalidating, terminating, withdrawing fromor suspending the operation of a treaty which relates to particularclauses of the treaty may be invoked only with respect to thoseclauses when:

(a) the said clauses are clearly separable from the remainderof the treaty with regard to their application; and

(b) it does not appear from the treaty or from the circum-stances of its conclusion that acceptance of those clauses wasan essential basis of the consent of the other party or partiesto the treaty as a whole.2. However, in cases falling under articles 33 and 35 the State

entitled to invoke the fraud or the personal coercion of its repre-sentative may do so with respect either to the whole treaty oronly to the particular clauses as it may think fit.

3. Paragraph 1 does not apply in cases falling under articles 36and 37.

SECTION 2: INVALIDITY OF TREATIES

Article 31.Provisions of internal law regardingcompetence to enter into treaties

The observations and proposals of the Special Rap-porteur regarding this article are contained in addendum 2to his fourth report (A/CN.177/Add.2).


In his observations on articles 46 and 47 the SpecialRapporteur has also proposed that the application ofthe provisions of the present article should be madesubject to those articles.

Article 32.Lack of authority to bind the State

The observations and proposals of the Special Rap-porteur regarding this article are contained in addendum 2to his fourth report (A/CN.177/Add.2).

In his observations on articles 46 and 47, the SpecialRapporteur has also proposed that the application ofthe provisions of the present article should be madesubject to those articles.

Article 33.Fraud


Israel. The Government of Israel suggests that thearticle should be placed after article 34 "in order todistinguish the reprehensible from the non-reprehensiblevices de consentement and place the former in ascendingorder of calumny". In paragraph 1 it suggests that inlieu of "fraudulent conduct" it would be better to say"fraudulent act or conduct". In paragraph 2 it suggeststhe omission of the word "only". Otherwise the para-graph might, it feels, be open to the interpretation thatit excludes any option for the injured State to invokethe fraud as invalidating its consent to the whole treatyor to the particular clauses to which the fraud relates,as it may prefer. At the same time it notes that theCommission's intention, as appears from paragraph 6of its commentary, was to allow such an option.

Jamaica. The Jamaican Government considers thata defrauded party should take steps to invalidate itsconsent to the treaty within a stated time after thediscovery of the fraud; and that, if it fails to do so, itshould be precluded from invoking the fraud as a reasonfor the termination of the treaty, unless the conditionsfor its termination are agreed upon by both parties.

Netherlands. The Netherlands Government suggeststhat, in paragraph 2, the reference to "the State in ques-tion" is not sufficiently clear; and that the phrase "theinjured State" should be used instead. Paragraph 2should, it believes, be deleted if its proposals for therevision of article 46 are adopted (see its comments onthat article).

Portugal. The Portuguese Government examines theprovisions of the article seriatim and appears to agreewith the Commission's treatment of the question offraud. As to paragraph 2, it appears to consider the Com-mission's proposals as providing a reasonable rule regard-ing partial nullity in cases of fraud.

Sweden. The Swedish Government observes that thisarticle, like article 34 concerning error, deals withcontingencies that must be very rare, and that for thisreason there may be a question whether the article isreally needed at the present stage. At the same time, itsays that the actual formulation of the article appears tobe unobjectionable.

United Kingdom. The United Kingdom Governmentdoubts the need for this article. If the article is included,

it believes that provision should be made for independentadjudication on its interpretation and application.

United States. The United States Government feelsthat the article might create more problems than itwould solve. In its view, a serious question arises as towhen an injured State is required to assert the existenceof the fraud in order to take advantage of it. If it waitstwo or ten years after discovering the fraud, the UnitedStates Government thinks it extremely doubtful whetherthe State should be entitled to invoke the fraud. It suggeststhat, if the article is retained, a clause should be addedto the following effect "provided that the other contract-ing States are notified within months after discoveryof the fraud". It also suggests that it would be highlydesirable to include a requirement that the fraud shouldbe determined judicially.

Brazilian delegation. Stressing the difficulty of findinga satisfactory definition of fraud and the absence ofrecorded instances of fraud, the Brazilian delegationthinks it inadvisable to give approval to provisions whichmight raise more difficulties in practice than they wouldsolve.1S

Bulgarian delegation. The Bulgarian delegation regardsthe separate treatment given to fraud and error by theCommission as a remarkable innovation not alwaysadmitted in the opinions of international jurists.14

Colombian delegation. In view of the diversity of mean-ings attributed in internal law to fraud as a ground forinvalidating consent, the Colombian delegation considersthat the term "fraud" should be given as precise anduniform a definition as possible for purposes of inter-national law.15

Ecuadorian delegation. The Ecuadorian delegationconsiders the article to be generally acceptable, but feelsthat its scope should be extended to cover a fraudulentact as well as fraudulent conduct. It does not believethat the failure of States in the past to invoke absenceof consent on the ground of fraud is a sufficient reasonfor omitting the article.16

French delegation. The French delegation takes theview that, in including the principle which is the subjectof the present article, the Commission is acting in accord-ance, and not in conflict, with article 15 of its Statute.17

Iraqi delegation. The Iraqi delegation considers thatthe fact that fraud is very rare is no reason for failingto declare that it vitiates consent. It also considers thatfraud does not necessarily consist of fraudulent conductbut may arise from one fraudulent act.18

Pakistan delegation. The Pakistan delegation is of theopinion that a time-limit should be placed on the rightto invoke fraud, as otherwise the question of determining


14 Ibid., 788th meeting, para. 9.15 Ibid., 783rd meeting, para. 10.16 Ibid., 782nd meeting, para. 3.17 Ibid., 787th meeting, paras. 2 and 7.18 Ibid., 788th meeting, para. 20.

Law of Treaties 11

when the injured State is required to assert the defectin the consent will give rise to difficulties.19

Peruvian delegation. The concept of fraud is not thoughtby the Peruvian delegation to be applicable in inter-national law.w

Sahadorian delegation. The Salvadorian delegationobserves that the article does not specify whether thefraudulent conduct of a third party may be invoked asinvalidating consent. It also suggests that the expression"fraudulent conduct" should be replaced by "fraudulentact".21

Syrian delegation. The Syrian delegation approves theCommission's decision to draw up separate articles onfraud and error in order to demonstrate the differencesin the effect of these two defects in the consent.22

Thai delegation. The Thai delegation appears to con-sider that, despite the Commission's explanations inparagraph 3 of its commentary, the influence of Englishprivate law is predominant in the drafting of the article.M

Venezuelan delegation. The Venezuelan delegationthinks that the Commission was wise not to attempt todefine the word "fraud" in view of the difficulty ofestablishing a satisfactory definition.24


1. Although some Governments and delegations areagainst making fraud a distinct ground of invalidityseparate from error, the majority are either in favour ofsuch a course or do not voice any objection to it. At thefifteenth session some members of the Commissionwould have preferred to amalgamate fraud and errorin a single article25 and the Commission will, no doubt,now re-examine this question in the light of the commentsof Governments. At that session the Commission con-cluded that, on balance and despite the rarity of fraud,it is advisable to keep it distinct from error in a separatearticle. It said :

"Fraud, when it occurs, strikes at the root of anagreement in a somewhat different way from innocentmisrepresentation and error. It does not merelynullify the consent of the other party to the terms ofthe agreement; it destroys the whole basis of mutualconfidence between the parties."26

2. If the article is retained, the Special Rapporteurconsiders that the Government of Israel's suggestion ofreversing the order of articles 33 and 34 so as to place"fraud" after "error" should be adopted. "Fraud"is, as it were, an "aggravated" ground of invalidity moreakin to coercion than to innocent forms of misrepresenta-tion and mistake.

19 Ibid., 791st meeting, para. 28.20 Ibid., 789th meeting, para. 17.21 Ibid., 782nd meeting, para. 3.22 Ibid., 786th meeting, para. 16.28 Ibid., 791st meeting, para. 4.2iIbid., 790th meeting, para. 16.28 Yearbook of the International Law Commission, 1963, vol. II ,

p. 194, article 33, para. (2).28 Ibid., p. 195, article 33, paras. (2) and (3),

3. One delegation considers that in paragraph 1 theterm "fraud" should be given as precise and uniform adefinition as possible for purposes of international law.In general, however, Governments and delegations appearto share the view expressed by the majority of the Com-mission at the fifteenth session that "it would be betterto formulate the general concept of fraud applicable inthe law of treaties in as clear terms as possible and to leaveits precise scope to be worked out in practice and in thedecisions of international tribunals".27 On the otherhand, a number of the comments make the point thatit is not enough to mention "fraudulent conduct",because a single act may suffice to accomplish a fraud.Although the Commission is thought by the SpecialRapporteur to have been justified in thinking that thephrase "fraudulent conduct" covers a single act as wellas a series of acts of fraud, it seems desirable in the lightof the comments of Governments and delegations toexpand the phrase to read "fraudulent act or conduct".

4. In paragraph 2 the Government of Israel suggests thedeletion of the word "only", in order to remove anypossibility of the paragraph's being interpreted as obligingthe defrauded State to invoke the fraud as invalidatingits consent only to the particular clauses, without givingit the option to claim that its consent to the whole treatyis affected. If paragraphs 1 and 2 are read together, asthey must be, the Special Rapporteur does not thinkthat paragraph 2 is really open to the suggested inter-pretation ; nor does he think that, if it is regarded as opento that interpretation, the deletion of the word "only"would have the effect of removing the difficulty. On theother hand, the comment of the Netherlands Governmentthat the phrase "the State in question" is not sufficientlyclear appears to be justified, as two States are mentionedin paragraph 1. However, if the Special Rapporteur'sproposals for the revision of article 46 and its transferto section 1 are accepted by the Commission, it will notbe necessary to retain paragraph 2, as the question ofseparability will have already been covered in article 46.If the Commission were to decide to retain paragraph 2,it would seem advisable to reformulate it on the lines ofthe corresponding paragraph in article 34, concerning"error", because from a purely drafting point of viewit would be more elegant for this provision to be formu-lated in the same way in both articles.

5. As to the suggestion of the Jamaican and UnitedStates Governments that a specific time-limit should belaid down for invoking the invalidity of a treaty on theground of fraud, this has been examined in the SpecialRapporteur's observations and proposals regarding therevision of article 47.

6. In the light of the above observations, the SpecialRapporteur suggests that the article should be revisedto read as follows :

If a State has been induced to enter into a treaty by the fraudu-lent act or conduct of another contracting State, it may invokethe fraud as invalidating its consent to be bound by the treaty.

27 Ibid., p. 195, article 33, paras. (2) and (3).


Article 34.Error

Comments of GovernmentsIsrael. The Government of Israel observes that para-

graph 1 speaks of an error relating to "a fact or stateof facts", whereas paragraph 7 of the commentary doesnot appear to take so limitative a view of errors whichmay vitiate consent. It suggests that the text of the articleshould be brought into line with the commentary. Inparagraph 4 it suggests that the words "mistake" and"error" should be transposed, so that the paragraphwould then read :

"When there is no error as to the substance of atreaty but there is a mistake in the wording of its text,the mistake shall not affect the validity of the treatyand articles 26 and 27 then apply."

Commenting further on paragraph 4, the Governmentof Israel cites the judgment of the International Courtin the Case concerning sovereignty over certain FrontierLand as authority for the view that a mistake in transcrip-tion can vitiate the treaty (as opposed to invalidating aparty's consent), subject to the necessary proof beingforthcoming; and also for the view that, in any event,such a mistake can be cured by subsequent ratificationof the treaty, its publication, and by acquiescence. 28 Itsuggests that the language of paragraph 4 and, if necessary,also of articles 26 and 27, should be adjusted accordingly.If paragraph 4 is redrafted in the manner which it pro-poses, it notes that, by way of consequential amendment,it would be necessary to amend the title to section V ofpart I and articles 26 and 27 by substituting the word"mistake" for the word "error" wherever the latterappears.

Netherlands. The Netherlands Government merelyobserves that, if its proposed amendment to article 46is adopted, this will affect the drafting of paragraph 2of the present article.

Portugal. The Portuguese Government interpretsparagraph 7 of the commentary as stating that an errorof law is admissible on the same footing as one of factand, on that basis, it questions the statement. It alsomaintains that, in making the treaty void ab initio, thearticle clashes with "the theory most in vogue whicheven in cases of annulment on the ground of error doesnot allow such effects".

Sweden. The Swedish Government observes that thisarticle, like article 33 concerning fraud, deals with con-tingencies that must be very rare, and that for this reasonthere may be a question whether the article is reallyneeded. At the same time, it says that the actual formula-tion of the article appears to be unobjectionable.

United Kingdom. The United Kingdom Governmentconsiders that independent adjudication would be neces-sary for the interpretation and application of this article;and it invokes the cases referred to in the Commission'scommentary as underlining this need.

United States. In this article, as in the previous articledealing with fraud, the United States Governmentconsiders it essential to impose some time-limit within

281.C.J. Reports 1959, pp. 222-227.

which the defect in the consent the error in this case must be asserted after its discovery. It also considersthat provision should be made for judicial determinationof cases of "error".

Brazilian delegation. The notion of error, which is soimportant in matters of contract, is thought by the Brazi-lian delegation to lose much of its force in contemporaryinternational law, particularly as treaties are now fre-quently formulated at international conferences in whicha large number of countries take part. The Braziliandelegation thinks it inadvisable to give approval toprovisions which might raise more difficulties in practicethan they would solve.29

Bulgarian delegation. The Bulgarian delegation appearsto think that error and fraud should be dealt with together(see its comments on article 33).30

Ecuadorian delegation. The Ecuadorian delegationthinks it difficult to determine precisely the practicalscope of the provisions of paragraph I.31

Iranian delegation. The Iranian delegation observesthat the article deals with errors of fact, but not witherrors of law.32

Iraqi delegation. The Iraqi delegation considers thatit is logically necessary to include an article dealing witherror in a body of rules relating to the validity of treaties;and that the fact that error is infrequent is no reason forfailing to declare that it vitiates consent. **

Pakistan delegation. The Pakistan delegation is of theopinion that a time-limit should be placed on the rightto invoke an error, as otherwise the question of determin-ing when the injured State is required to assert the defectin the consent will give rise to difficulties.M

Peruvian delegation. The concept of "error" is notthought by the Peruvian delegation to be applicable ininternational law.35

Salvadorian delegation. The Salvadorian delegationcommends the drafting of the article. At the same time,it expresses the view that it may be necessary to determinenot only whether there has been an error on the part ofa contracting State, but also whether that error relatesto a state of facts involving a third State.36

Syrian delegation. The Syrian delegation approves theCommission's decision to separate "error" from"fraud".37

Thai delegation. The Thai delegation considers thescope of the exception provided for in paragraph 2 tobe too wide and to have the effect of rendering para-graph 1 ineffective. It also observes that the map in theTemple of Preah Vihear38 case, mentioned in para-


30 Ibid., 788th meeting, pa ra . 9.31 Ibid., 789th meeting, pa ra . 25.33 Ibid., 787th meeting, pa ra . 32.38 Ibid., 788th meeting, pa ra . 20.34 Ibid., 791st meeting, pa ra . 28.36 Ibid., 789th meeting, pa ra . 17.36 Ibid., 782nd meeting, pa ra . 4 .37 Ibid., 786th meeting, pa ra . 16.3 81.C.J. Reports 1962, p . 26.

Law of Treaties 13

graph (4) of the commentary, was neither a treaty norpart of a treaty because it had been drawn up by oneparty and not authenticated by the other party. In itsview, therefore, the treaty could not be considered atreaty within the meaning of part I of the draft articles.39


1. Two Governments express doubts as to the advisa-bility of including an article on error. But cases of errorin the conclusion of treaties are by no means rare and,whatever view may be taken as to the need to devote aspecific article to "fraud", the Special Rapporteur feelsthat the omission of any provision regarding cases of"error" would leave an unacceptable gap in the draftarticles.

2. The statement of the main rule in paragraph 1 speaksof cases where the error related to a "fact or state offacts" assumed to exist at the time when the treaty wasentered into. In paragraph (7) of its commentary to thearticle the Commission said:

"The Commission did not intend the requirementthat the error must have related to a ' fact or state offacts' to exclude any possibility that an error of lawshould in some circumstances serve to nullify consent.Quite apart from the fact that errors as to rights maybe mixed questions of law and fact, the line betweenlaw and fact is not always an easy one to draw andcases are conceivable in which an error of law mightbe held to affect consent. For example, it may bedoubtful how far an error made as to a regional orlocal custom is to be considered as one of law or offact for the purposes of the present article, havingregard to the pronouncements of the Court as to theproof of a regional or local custom. Again, it wouldseem clear on principle that an error as to internal lawwould for the purposes of international law be con-sidered one of fact." 40

The Government of Israel suggests that the text of thearticle ought to be brought into line with the commentary,by which it presumably means that paragraph 1 shouldbe expanded so as to deal explicitly with the pointsmentioned in the above passage from the commentary.The Portuguese Government, on the other hand, inter-prets that passage as putting errors of law on the samefooting as errors of fact and questions its correctness.3. The Commission, according to the Rapporteur'sunderstanding, had no intention of putting errors of lawon the same footing as errors of fact. Its intention inparagraph (7) of the commentary was rather to enter acaveat that, in certain circumstances, an error which maybe said to involve an error as to a matter of law mayconstitute an "error related to a fact or state of facts",and for that reason fall within the article. As each casewill tend to depend on its own special facts, the SpecialRapporteur doubts whether it would be advisable toattempt to expand paragraph 1 of the article in the

39 Official Records of the General Assembly, Eighteenth Session,Sixth Committee, 791st meeting, para. 4.

40 Yearbook of the International Law Commission, 1963, vol. I I ,p . 196.

manner apparently suggested by the Government ofIsrael. It seems preferable to state the basic rule containedin paragraph 1 and leave the special cases to be determinedby reference to that general rule. On the other hand, whenthe final text of the commentary is drawn up, it may bedesirable to modify paragraph (7) so as to leave nopossibility for misunderstanding.

4. One Government considers the scope of the excep-tions provided for in paragraph 2 to be too wide and tohave the effect of largely nullifying paragraph 1. Theformulation of paragraph 2, as stated in the commentary,was taken from the Court's judgment in the Temple case.The language of the exception is certainly strict and thewords " or could have avoided i t" have, no doubt, tobe reasonably interpreted as meaning no more than "orcould with due diligence have avoided it".

5. If the Special Rapporteur's proposals for the revisionof article 46 and for its transfer to section 1 as a generalrule are accepted by the Commission, paragraph 3 willbecome unnecessary as the question of separability willhave already been covered in article 46.

6. In paragraph 4 two suggestions of the Governmentof Israel require consideration. The first is that the words"error" and "mistake" should be transposed. The ideapresumably is that, as in the English text of article 26 theword "error" is used in connexion with the correctionof errors in texts of treaties, the same word should alsobe used in the present article in that connexion and theword "mistake" be employed for errors of substance.Although the words "error" and "mistake" are synony-mous, the Special Rapporteur agrees that uniformityin the terminology is desirable. He thinks it preferable,however, to use the same word "error" throughoutrather than to appear to make a distinction in the useof the two words which is not found in the terminology ofEnglish-language legal systems. Another considerationis that in the French and Spanish texts the same word"erreur", "error"is used both in article 26 andthroughout the present article.

7. The second suggestion is that paragraph 4, and ifnecessary also article 26, should be adjusted so as togive effect to the following propositions :

(a) A mistake in transcription can vitiate the treaty(as opposed to invalidating a party's consent), subjectto the necessary proof being forthcoming; and

(b) A mistake in transcription may be cured bysubsequent ratification of the treaty, its publicationand by acquisition.

Both these propositions are said to be involved in theCourt's judgment in the Frontier Land case onpages 222-6.41 Both these propositions, in the view of theSpecial Rapporteur, oversimplify, and in a certain measuredistort, the judgment of the Court in the Frontier Landcase. The facts of that case were very special. A "minute"the so-called communal minutewas drawn upbetween the communes of Baerle-Duc (Belgium) andBaarle-Nassau (Netherlands) purporting to record theiragreement as to the commune to which two plots of land

UI.C.J. Reports 1959.


appertained. The Belgian-Netherlands Mixed BoundaryCommission then purported in a so-called "descriptiveminute" to transcribe word for word the agreement inthe communal minute. Then the descriptive minutewas incorporated by reference in the Belgian-NetherlandsBoundary Convention of 1843. The Netherlands Govern-ment claimed that the terms of the communal minutehad been wrongly transcribed in the descriptive minuteand ought to have attributed the two plots to the Nether-lands, not Belgium. The Court found as a fact that therehad been two versions of the communal minute, oneattributing the plots to the Netherlands and the otherto Belgium. It further found that the version which theMixed Boundary Commission had intended to transcribewas the one attributing the plots to Belgium, not the onerelied on by the Netherlands; and that in consequencethere was no mistake in the descriptive minute and nomistake in the Convention of 1843. It is true that theCourt added that the Convention had been "confirmedby the Parliament of each State and ratified in accordancewith their constitutional processes"; and that its termshad been "published in each State". But it did so onlyby way of finding confirmation for its conclusion thatno case of mistake had been made out by the NetherlandsGovernment. Accordingly, the Special Rapporteur doesnot feel that the case supports the propositions whichare drawn from it in the comments of the Governmentof Israel.

Moreover, independently of the Frontier Land case, theinclusion of the two propositions does not appear to beadvisable. To lay down that a mistake in transcriptionmay, as such, vitiate a treaty is to obscure if not eliminatethe distinction which the Commission has been so carefulto draw and rightly between cases of error underarticle 26 and those under the present article. Again,while it may be possible for an erroneously transcribedagreement to be accepted and acted on by the partiesas the treaty binding upon them, this will be a case notof "curing" an error but of substituting a new agreementfor the original one. So far as it may involve any elementof error, it will be an error as to the substance of thetreaty; and so far as any curing of an error is involved,the case will fall under article 47.

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

Error

1. A State may invoke an error respecting the substance ofa treaty as invalidating its consent to be bound by the treatywhere the error related to a fact or state of facts assumed by thatState to exist at the time when the treaty was entered into andforming an essential basis of its consent to be bound by the treaty.

2. Paragraph 1 above shall not apply if the State in questioncontributed by its own conduct to the error or could have avoidedit, or if the circumstances were such as to put that State on noticeof a possible error.

3. When there is no error as to the substance of a treaty butthere is an error in the wording of its text, the error shall notaffect the validity of the treaty and articles 26 and 27 thenapply.

Article 35.Personal coercion of representatives of States

Comments of GovernmentsCzechoslovakia. The Czechoslovak Government notes

with satisfaction that article 35 declares null and void abinitio treaties concluded through personal coercion ofrepresentatives of States. Its delegation recalls the tragicevents which had followed the imposition on Czecho-slovakia of the Munich Agreement.

Israel. The Government of Israel observes that there isa possible inconsistency between the absolute expression"without any legal effect" in paragraph 1 and the relative,partial, invalidation of the consent under paragraph 2;and that it is not clear whether any difference is intendedbetween the expression "shall be without legal effect"in paragraph 1 of this article and the expression "shallbe void" in article 36. It suggests that paragraph 1 shouldbe revised to read as follows:

"If an individual representative of a State is coerced...the State whose representative has been coerced mayinvoke the coercion as invalidating its consent to bebound by the treaty."

In paragraph 2, it suggests the omission of the word"only". Otherwise the paragraph might, it feels, be opento the interpretation that it excludes any option for theinjured State to invoke the coercion as invalidating theconsent to the whole treaty or to the particular clausesto which the coercion relates, as it may prefer.

Netherlands. The Netherlands Government merelyobserves that, if its proposed amendment to article 46is adopted, this will affect the drafting of the presentarticle.

Portugal. The Portuguese Government comments onthe legal principles underlying this and the followingarticle. Although stressing the novel character of thisarticle, it considers the Commission's approach to thequestion of personal coercion to be praiseworthy. Italso considers paragraph 2 to provide a reasonable ruleregarding partial nullity in cases of personal coercion.

Sweden. The Swedish Government observes that, likearticles 33 (fraud) and 34 (error), the present article dealswith a contingency that is most unusual. However, asthere have been some well-known cases of the kindcontemplated by the article, and as the rule proposedhas a good deal of support in "doctrine", it thinks thatan express provision on the matter may be desirable.

United Kingdom. The United Kingdom Governmentobserves that it is not clear whether paragraph 1 wouldcover the case of signature of a treaty which is subjectto ratification and, if so, whether a signature procuredby coercion is capable of being ratified.

United States. The United States Government feelsthat paragraph 1 goes too far in providing that anexpression of consent obtained by means of coercion"shall be without any legal effect"; and that it wouldbe better to provide that it may be treated by the injuredState as being without legal effect. This would preventthe coercing State from asserting the invalidity of thetreaty on the basis of the coercion. Nor, in the opinionof the United States Government, ought the injuredState to be required to take the view that the treaty is

Law of Treaties 15

without any legal effect; for it may conceivably wishto ignore the coercion if its interest in maintaining thesecurity of the treaty is dominant. Furthermore, ifparagraph 1 is revised in the way it suggests, the UnitedStates Government thinks that it will have the advantageof helping to prevent third States from attempting tomeddle in a situation where the parties immediatelyinvolved are content to continue the treaty.

Colombian delegation. The Colombian delegationendorses the distinction drawn by the Commissionbetween personal coercion of representatives and coercionof the State itself.42

Ecuadorian delegation. The Ecuadorian delegationsuggests that the provisions of article 35 should beextended to cover members of the families of represent-atives. a

Iraqi delegation. The Iraqi delegation approves theposition adopted by the Commission on the presentarticle.44

Pakistan delegation. The Pakistan delegation suggeststhat, in paragraph 1 the word "shall" should be replacedby "may".45

Spanish delegation. The Spanish delegation opposesthe amendment suggested by the United States Govern-ment that the treaty should not be invalid unless theinjured State invokes the coercion as a ground forconsidering the treaty to be invalid.46

Thai delegation. The Thai delegation welcomes theprogressive character of the article.47

Venezuelan delegation. The Venezuelan delegationthinks that it would be better to include in the articleitself a provision that "representatives" include familiesof representatives instead of leaving this point to becovered in the commentary.48


1. Four Governments suggest that paragraph 1 shouldbe revised so as to give the State the right to invoke thecoercion as invalidating its consent rather than auto-matically to render the expression of consent obtainedby coercion "without legal effect". The Spanish Govern-ment, on the other hand, opposes this suggestion. TheCommission at the fifteenth session took the view that"the use of coercion against the representative of a Statefor the purpose of procuring the conclusion of a treatywould be a matter of such gravity that the article shouldprovide for the absolute nullity of a consent to a treaty soobtained".

2. The Special Rapporteur is inclined to doubt whetherthe absolute nullity of the consent is necessarily calledfor in cases covered by the present article. Cases of the


43 Ibid., 789th meeting, para . 25.u Ibid., 788th meeting, para . 21 .48 Ibid., 791st meeting, para. 27.46 Ibid., 792nd meeting, pa ra . 8.47 Ibid., 791st meeting, pa ra . 5.48 Ibid., 790th meeting, pa ra . 17.

coercion of the State itself are dealt with in article 36,under which any treaty procured by the threat or use offorce in violation of the principles of the Charter isdeclared to be void. Those are indeed cases of the utmostgravity. But, although they may sometimes also involvedirect coercion of high officers of the State, it is in theforcible compulsion of the State that the extreme gravityof those cases consists. The cases of personal coercionexercised upon a representative in his individual capacitywith which the present article deals appear, on the otherhand, to be more akin to cases of " fraud " than to thecases under article 36. Accordingly, the Special Rappor-teur feels that it would be quite justifiable to accept thesuggestion that, as in cases of "fraud", the State whoserepresentative had been subjected to personal coercionshould have the option to accept the treaty as valid, orto reject it as invalidated by the coercion or, in appropriatecases, to regard as invalid only the particular clausesto which the coercion relates. In that event, it would seemnatural to use the same formula as in previous articles,i.e. "the State may invoke the coercion as invalidatingits consent to be bound".

3. If paragraph 1 is revised in the manner just indicated,the problem posed by the United Kingdom as to whethera signature procured by coercion is capable of ratificationwill become comparatively easy of solution. Ratificationof such a signature would then be possible, as in the caseof a signature procured by fraud, but it would notpreclude the State from afterwards invoking the coercionas invalidating its expression of consent unless theratification were effected or were confirmed after theState had become aware of the coercion. In other words,ratification would be definitive and bind the State onlyif the case came within the provisions of article 47. Inorder to cover this point, however, it will be necessaryto speak not of an "expression of consent to be bound"but of a signature's having been procured by coercion.

4. If the Special Rapporteur's proposals for the revisionof article 46 and its transfer to section 1 as a general ruleare accepted by the Commission, paragraph 2 of thepresent article will become unnecessary, since the questionof separability will already have been covered in article 46.

5. The Special Rapporteur accordingly proposes thatthe article should be revised to read as follows:

If the signature of a representative of a State to a treaty hasbeen procured by coercion, through acts or threats directedagainst him in his personal capacity, the State may invoke suchcoercion as invalidating its consent to be bound by the treaty.

Article 36.Coercion of a State by the threat or useof force
