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United Nations Report of The International Law Commission
Published online by Cambridge University Press: 28 March 2017
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- Copyright © American Society of International Law 1965
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* Obtained and prepared by R. R. Baxter of the Board of Editors.
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1 Yearbook of the International Law Commission, 1959, Vol. II, p. 37, and 1960, Vol. TI, p. 69.
2 Official Records of the General Assembly, 17th Sess., Supp. No. 9 (A/5209 and Corr. 1).
3 Official Records of the General Assembly, 18th Sess., Supp. No. 9 (A/5509).
4 Official Records of the General Assembly, 13th Sess., 8upp. No. 9 (A/3859), pars. 60-61.
5 However, a specific reservation on this matter is included in Art. 63, par. 5, for the reasons given in the commentary to that article.
6 See the full discussion of the principle pacta sunt servanda in the commentary to Art. 20 of Harvard Law School, Research in International Law, Part III, Law of Treaties, American Journal of International Law, “Vol. 39 (1935), Supp. No. 4, p. 977; J. L. Kunz, “The Meaning and the Range of the Norm Pacta Sunt Servanda,“ American Journal of International Law, Vol. 39 (1945), pp. 180-197; C. Rousseau, Principes généraux du droit international public (1944), pp. 355-364.
7 See especially Bin Cheng, General Principles of Law (1953), Ch. III.
8 I.C.J. Reports 1948, p. 63.
9 I.C.J. Reports 1952, p. 212.
10 E.g., Treatment of Polish Nationals and other persons of Polish origin or speech in the Danzig territory, P.C.I.J. (1932), Series A/B, No. 44, p. 28.; Minority Schools in Albania, P.C.I.J. (1935), Series A/B, No. 64, pp. 19-20.
11 Reports of International Arbitral Awards, Vol. XI, p. 188. The Tribunal also referred expressly to “the principle of international law that treaty obligations are to be executed in perfect good faith.“
12 Judgement of 1 July 1952; I.C.J. Reports 1952, p. 40.
13 P.C.I.J. (1924),'Series A, No. 2, p. 34.
14 P.C.I.J. (1924), Series A, No. 2, p. 35; cf. the Phosphates in Morocco case, P.C.I.J. (1938), Series A/B, No. 74, p. 24. The application of the different forms of clause limiting ratione temporis the acceptance of the jurisdiction of international tribunals has not been free from difficulty, and the case law of the Permanent Court of International Justice and the International Court of Justice now contains a quite extensive jurisprudence on the matter. Important though this jurisprudence is in regard to the Court's jurisdiction, it concerns the application of particular treaty clauses, and the Commission does not consider that it calls for detailed examination in the context of the general law of treaties.
15 See Yearbook of the European Convention of Human Rights (1955-7), pp. 153-9; (1958-9), pp. 214, 376, 382, 407, 412, 492-4; (1960), pp. 222, 280, 444; and (1961), pp. 128, 132-45, 240, 325.
16 Case of De Becker, see Yearbook of the European Convention of Human Rights (1958-9), pp. 230-5; Application No. 655/59, Yearbook of the European Convention of Human Rights (1960), p. 284.
17 Thus, in the case concerning the Northern Cameroons (I.C.J. Reports 1963, p. 15), the International Court assumed that a state remains responsible after the termination of a treaty for any breach that may have occurred while it was in force. However, no reparation was claimed in that case and, owing to the special circumstances, the Court declined, after the termination of the Trusteeship Agreement, to adjudicate upon the question whether or not it had been infringed.
18 Official Records of the General Assembly, 18th Sess., Supp. No. 9 (A/5509), p. 28.
19 League of Nations Treaty Series, “Vol. II, p. 8.
20 United Nations Treaty Series, Vol. 402, p. 71.
21 E.g., the Agreement between the Government of Great Britain and Northern Ireland and the USSE on Relations in the Scientific, Technological, Educational and Social Fields 1963-5 (United Kingdom Treaty Series No. 42 of 1963); Convention of 1961 between Austria and Great Britain for the Reciprocal Recognition and Enforcement of Foreign Judgments defines the U.K as comprising England and Wales, Scotland and Northern Ireland (United Kingdom Treaty Series No. 70 of 1962).
22 See Lord McNair, Law of Treaties (1961), pp. 116-7; S. Rosenne, “United Nations Treaty Practice,” Recueil des Cours de l'Académie de droit international, Vol. 86 (1954), pp. 374-5; Summary of Practice of the Secretary-General as depositary of Multilateral Agreements (ST/LEG/7), pars. 102-3; Succession of States in relation to General Multilateral Treaties of which the Secretary-General is Depositary (A/CN.4/ 150), pars. 73-4 and 138 (Yearbook of the International Law Commission, 1962, Vol. II, pp. 115, 123).
23 Professor G. Scelle, stressing the difference in character between treaties and private law contracts, went so far as to object to the application between states of the principle paota tertiis nee nocent nee prosunt, a principle devised for the private law contractual relations of individuals (Précis de droit des gens (1934), Vol. II, pp. 345-6 and 367-8). But he is alone in disputing the validity in international law of the pacta tertiis principle as a general principle of the law of treaties.
24 P.C.I.J. (1926), Series A, No. 7, p. 29.
25 Reports of International Arbitral Awards, Vol. II , p. 831.
26 Ibid., p. 850.
27 Ibid., p. 842.
28 Ibid., p. 870.
29 P.C I.J. (1932), Series A/B, No. 46, p. 141; and ibid. (1929), Series A, No. 22, p. 17.
30 P.C.I.J. (1929), Series A, No. 23, pp. 19-22.
31 P.C.I.J. (1923), Series B, No. 5, pp. 27-8; of. the somewhat special case of the Aerial Incident of 27 July 1955, I.C.J. Reports 1959, p. 138.
32 Ibid., Reports of International Arbitral Awards, Vol. II , p. 1105.
33 Ibid., Vol. III , p. 1405.
34 English translation from Annual Digest and Reports of International Law Cases, 1933-1934, Case No. 39, at p. 92.
35 P.C.I.J. (1929), Series A, No. 22, pp. 17-18; P.C.I.J. (1932), Series A/B, No. 46, p. 141.
36 The text of the relevant part of this note was annexed to Art. 435 of the Treaty Of Versailles.
37 Art. 109 of the Treaty of Versailles.
38 Arts. 358 and 374 of the Treaty of Versailles.
39 See E. Jiménez de Aréchaga, “Treaty Stipulations in Favor of Third States,“ American Journal of International Law, Vol. 50 (1956), p. 355.
40 See the South-West Africa Cases, I.C.J. Reports 1962, pp. 329-31 and p. 410; the Northern Cameroons Case, I.C.J. Reports 1963, p. 29.
41 E.g., C. Rousseau, Principes généraux du droit international public (1944), pp. 468-77; Lord McNair, Law of Treaties (1961), pp. 309-312; L. A. Podestá Costa, Manuel de Dereeho International Público, par. 157; G. Salvioli, “Les règies générales de la Paix,” Recueil des Cours de 1'Académie de droit international, Vol. 46 (1933), pp. 29-30.
42 P.C.I.J. (1932), Series A/B, No. 46, p. 147.
43 E.g., J. L. Brierly, Law of Nations (5th ed., 1955), pp. 251-2; Sir Hersch Lauterpacht, Development of International Law by the International Court (1958), pp. 306- 10; Sir Gerald Pitzmaurice, Fifth Report on the Law of Treaties, Yearbook of the International Law Commission, 1960, Vol. II, pp. 81 and 102-4; E. Jiménez de Aréchaga, “Treaty Stipulations in Favor of Third States,” American Journal of International Law, Vol. 50 (1956), pp. 358-87; Harvard Law School, Research in International Law, American Journal of International Law, Vol. 29, Supp. (1935), Part III, Law of Treaties, pp. 924-937; M. Lachs, “Le développement et les fonctions des traités internationaux,“ Recueil des Cours de 1'Académie de droit international, Vol. 92 (1957), pp. 313-4.
44 League of Nations, Official Journal, Spec. Supp. No. 3 (October 1920), p. 18; see also Harvard Law School, Research in International Law, A.J.I.L., Vol. 29, Supp. (1935), Part III, Law of Treaties, pp. 927-8.
45 P.C.I. J. (1932), Series A/B, No. 46, pp. 147-8; in the course of that case, however, three judges expressly dissented from the view that a stipulation in favour of a state not a party to the treaty may of itself confer an actual right upon that state.
46 League of Nations, Official Journal, Spec. Supp. No. 3 (October 1920), p. 18; see also Harvard Law School, Research in International Law, A.J.I.L., Vol. 29, Supp. (1935), Part III, Law of Treaties, pp. 927-8. 45 P.C.I.J. (1932), Series A/B, No. 46, pp. 147-8; in the course of that case, however, three judges expressly dissented from the view that a stipulation in favour of a state not a party to the treaty may of itself confer an actual right upon that state.
47 Held by the International Military Tribunal at Nürnberg to enunciate rules which had become generally binding rules of customary law.
48 See generally Sir Gerald Fitzmaurice ‘a Fifth Report on the Law of Treaties, Yearbook of the International Law Commission, 1960, Vol. II, pp. 69-107; and Sir Humphrey Waldock's Third Report, A/CN.4/167, Art. 63 and commentary.
49 See also Lord McNair, Law of Treaties (1961), Ch. XIV; C. Rousseau, Principes généraux du droit international public (1948), pp. 462-4 and 477-84; M. Lachs, “Le développement et les fonctions des traités internationaux,” Recueil des Cours de l'Académie de droit international, Vol. 92 (1957), pp. 315-317.
50 Yearbook of the International Law Commission, 1953, Vol. II , p. 156.
51 Ibid., 1954, Vol. II , p. 133.
52 Ibid., 1958, Vol. II , pp. 27 and 41.
53 A/CN.4/156, Art. 14 and commentary.
54 Official Records of the General Assembly, 18th Sess., Supp. No. 9 (A/5509), par. 15; see also discussion at the 685th, 687th and 703rd meetings of the Commission.
55 Official Records of the General Assembly, 18th Sess., Supp. No. 9 (A/5509), p. 16.
56 A/CONF. 25/12.
57 See Art. 16 of the Statute of 1921 on the Régime of Navigable Waterways of International Concern (League of Nations Treaty Series, Vol. VII, p. 61); Art. 4 of the Pan-American Treaty of 1936 on Good Offices and Mediation (League of Nations Treaty Series, Vol. CLXXXVIII, p. 82) and the further list of treaties cited in C. Rousseau, Principes généraux du droit international public (1944), pp. 789-90.
58 E.g., Art. 10 of the Inter-American Treaty of Reciprocal Assistance (United Nations Treaty Series, Vol. 21, p. 101).
59 United Nations Treaty Series, Vol. 216, p. 148.
60 United Nations Conference on the Law of the Sea, Official Records, Vol. II, p. 138.
61 Arts. 13 and 18, League of Nations Treaty Series, Vol. VII, p. 36.
62 Official Records of the General Assembly, 18th Sess., Supp. No. 9 (A/5509), p. 16.
63 American Journal of International Law, Vol. 57 (1963), p. 275.
64 Art. 1 of all the United Nations protocols amending League of Nations treaties declares: “The Parties to the present Protocol undertake that as between themselves they will, in accordance with the provisions of the present Protocol, attribute full legal force and effect to, and duly apply, the amendments to this instrument as they are set forth in the annex to the present Protocol.” See, for example, Protocol of 1948 amending the International Convention of 1928 relating to Economic Statistics (United Nations Treaty Series, “Vol. 20, p. 229); Protocol of 1953 amending the Geneva Slavery Convention of 1926 (United Nations Treaty Series, Vol. 182, p. 51). Cf. also Art. 59 of the Geneva Convention of 1949 for the Amelioration of the Condition of tlie Wounded and Sick in Armed Forces in the Field (United Nations Treaty Series, Vol. 75, p. 66).
65 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 one another, or, individually or collectively, with any Power or Powers, which would infringe or impair the principles stated in article 1.“
66 League of Nations Treaty Series, Vol. VII, pp. 36-61.
67 E.g., Art. 15 of the 1883 Convention for the International Protection of Industrial Property (de Martens, Nouveau Recueil général, 2ème série, Vol. X, p. 133); Art. 20, the Berlin Convention of 1908 for the Protection of Literary Property (de Martens, Nouveau Recueil général, 3ème série, Vol. IV, p. 590).
68 A treaty containing “interdependent type” obligations as defined by a previous Special Rapporteur (Sir Gerald Fitzmaurice, Third Report in Yearbook of the International Law Commission, 1958, Vol. II, Art. 19 and commentary) is one where the obligations of each party are only meaningful in the context of the corresponding obligations of every other party, so that the violation of its obligations by one party prejudices the treaty régime applicable between them all and not merely the relations between the defaulting state and the other parties. Examples given by him were treaties of disarmament, treaties prohibiting the use of particular weapons, treaties requiring abstention from fishing in certain areas or during certain seasons, etc. A treaty containing ’ ‘ integral type'’ obligations was defined by the same Special Rapporteur as one where the force of the obligation is “ self -existent, absolute and inherent for each party and not dependent on a corresponding performance by the others.” The examples given by him were the Genocide Convention, Human Rights Conventions, the Geneva Conventions of 1949 on prisoners of war, etc., International Labour Conventions and treaties imposing an obligation to maintain a certain régime or system in a given area, such as the régime of the Sounds and the Belts at the entrance to the Baltic Sea.
69 See Resolutions of the General Assembly concerning the Law of Treaties (A/CN.4/ 154), pp. 19-29.
70 Pars. 6-30.
71 P CJ.J. (1934), Series A/B, No. 63.
72 Ibid., pp. 132-6 and pp. 148-50; see also Judge Hurst's explicit reference to the question, pp. 122-3.
73 P.C.I.J. (1927), Series B, No. 14.
74 P.C.I.J. (1927), Series B, No. 14, p. 23.
75 The more so as two Judges, Nyholm and Negulesco, took a different line from the Court, holding that any provision of the Statute which conflicted with the Treaty of Versailles would be “ null “ ; P.C.I.J. (1927), Series B, No. 14, pp. 73 and 129.
76 P.C.I.J. (1924), Series A, No. 2. “
77 Ibid. (1931), Series A/B, No. 41.
78 See Q. Schwarzenberger, International Law, pp. 482-7; see also Art. 18 of the Havana Convention of 1928 on Treaties (Harvard Law School, Research in International Law, Part III, Law of Treaties, p. 1207) which provided: “Two or more States may agree that their relations are to be governed by rules other than those established in general conventions concluded by them with other States.“
79 See par. 13 of the commentary to Art. 14, Second Report on the Law of Treaties (1963), A/CN.4/156.
80 See the general discussion of this point in par. 10 above.
81 Sir Gerald Fitzmaurice, Third Report, Yearbook of the International Law Commission, 1958, Vol. II , A/CN.4/115, par. 88.
82 Official Records of the General Assembly, 18th Sess., Supp. No. 9 (A/5509), Ch. II.
83 Yearbook of the International Law Commission, 1949, p. 281.
84 Cf. Sir Gerald Fitzmaurice, Second Report on the Law of Treaties (A/CN.4/107), Art. 5(iii) and par. 34 of the commentary, Yearbook of the International Law Commission, 1957, Vol. II, p. 42; and Fourth Report on the Law of Treaties (A/CN.4/120), Art. 4, Yearbook of the International Law Commission, 1959, Vol. II, p. 54.
85 Included in this category are C. Rousseau, Principes généraux du droit international public, Tome I (1944); Academy of Sciences of the USSR, Institute of State and Law, International Law (1961); the American Law Institute, Restatement of the Law, The Foreign Relations Law of the United States, proposed official draft (1962).
86 Harvard Law School, Research in International Law, Part III, Law of Treaties, pp. 1055-1066; and cf. Lord McNair, Law of Treaties (1961), pp. 672-676.