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The Depositary of International Treaties

Published online by Cambridge University Press:  28 March 2017

Shabtai Rosenne
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Extract

The Draft Articles on the Law of Treaties completed in 1966 by the International Law Commission and submitted to the General Assembly of the United Nations, on the basis of proposals by the Special Rapporteur, Sir Humphrey Waldock, contain, in Part VII (entitled “Depositaries, Notifications, Corrections and Registration”), three articles—Articles 71, 72 and 73—dealing directly with the depositary of an international treaty; and throughout the Draft Articles are to be found other provisions which directly or indirectly relate to the same institution of contemporary international law and relations.

Type
Research Article
Information
American Journal of International Law , Volume 61 , Issue 4 , October 1967 , pp. 923 - 945
Copyright
Copyright © American Society of International Law 1967

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References

1 IU . E General Assembly, 21st Sess., Omcial Eecords, Supp. No. 9 (Doc. A/6309/ Eev. 1), Part II, Ch. II ; 61 A.J.I.L. 255-463 (1967).

2 Legislative history: Art. 71 was introduced in Sir Humphrey Waldock's First Eeport on the Law of Treaties (Doc. A/CN.4/144/Add.l) as Art. 26. Yearbook of the International Law Commission [hereafter “Yearbook“], 1962 (II), p. 81. It was discussed at the Commission's 657th meeting. The Drafting Committee's text was introduced at the 662nd meeting, and a revised text was introduced at the 668th meeting. The Commentary (A/CN.4/L.101/Add.l) was adopted at the 670th meeting. The article was renumbered 28 in the Commission's report for 1962 (57 A.J.I.L. 190 (1963)). Written observations were made by the Government of the United States, printed at p. 1123 below. See Doc. A/CN.4/175 and Annex I to the Commission's report for 1966. The matter was re-examined in Sir Humphrey Waldock's Fourth Eeport (Doc. A/CN.4/177/Add.l), 1965 Yearbook (II) at 63. It was discussed at the Commission's 802nd and 803rd meetings. The Drafting Committee's text was introduced at the 815th meeting. The text was further revised at the 887th meeting. The Commentary (A/CN.4/L.116/Add.9) was adopted at the 894th meeting. Art. 72 was introduced in Sir Humphrey Waldock's First Eeport as Art. 27. 1962 Yearbook, (II) 82. It was discussed at the Commission's 658th meeting. The Drafting Committee's text was introduced at the 664th meeting, and a revised text was introduced at the 668th meeting. The Commentary (A/CN.4/L.101/Add.l) was adopted at the 670th meeting. The article was renumbered 29 in the Commission's Eeport for 1962. Written observations were made by the Governments of Israel, Japan, The Netherlands and the United States. Oral comments were made in the Sixth Committee of the General Assembly at its Seventeenth Session (1962) by the delegations of Czechoslovakia and Eumania. The matter was re-examined in Sir Humphrey Waldock's Fourth Eeport, 1965 Yearbook (II) 63. It was discussed at the Commission's 803rd meeting. The Drafting Committee's text was introduced at the 815th meeting. The text was further revised at the 887th meeting. The Commentary (A/CN.4/L.116/Add. 9) was adopted at the 894th meeting. Art. 73 was introduced by the Drafting Committee, as Art. 29 (lis), at the 815th meeting. A revised text was introduced at the 862nd meeting. Further revised texts were introduced at the 885th and 887th meetings. The Commentary (A/CN.4/L.116/ Add.9) was adopted at the 894th meeting. The articles received their present numbering at the 886th meeting, and were formally adopted at the 892nd and 893rd meetings. 923 Authentic English, French and Spanish texts were prepared by the Drafting Committee and adopted by the International Law Commission. In addition, Chinese and Russian texts, prepared by the Secretariat of the United Nations, exist. For a full account of the legislative history of the draft articles as a whole, see Guide to the Draft Articles on the Law of Treaties Adopted by the International Law Commission at its Eighteenth Session (1966) (Prepared by the Secretariat), Doc. A/C.6/376 (mimeographed only, 1967). The International Law Commission decided on the spelling depositary in preference to the spelling depository occasionally found.

3 See, e.g., the Commentaries on Arts. 13, par. (5), 21, par. (5), 35, 36, pars. (1) and (12), and 43, pars. (3) and (7), in addition to the Commentaries on the articles already mentioned.

4 These include particularly Arts. 18 (Procedure regarding reservations), 20 (Withdrawal of reservations), 21 (Entry into force), 36 (Amendment of multilateral treaties), 37 (Agreements to modify multilateral treaties between certain of the parties only), 53 (Denunciation of a treaty containing no provision regarding termination), 62 (Procedure to be followed in cases of invalidity, termination, withdrawal from or suspension of the operation of a treaty), 63 (Instruments for declaring invalid, terminating, withdrawing from or suspending the operation of a treaty) and 64 (Bevocation of notifications and instruments provided for in Articles 62 and 63).

5 Thus, of the two major contemporary works on the law of treaties, neither features “depositary” among the entries in the index, though both refer to the institution passim. Eousseau, Principes généraux du Droit international public, “Vol. 1 (Paris, 1944); NcNair, The Law of Treaties (Oxford, 1961). The same may be said of the two American codifications of the international law of treaties: Harvard Research in International Law, The Law of Treaties, 29 A.J.I.L. Supp. 653 (1935); American

6 States (St. Paul, Minn., 1965). It may also be mentioned that neither of the two standard modern encyclopedia-dictionaries of international law contains entries on depositary: Union Acadfimique Internationale, Dictionnaire de la terminologie du Droit international (Paris, 1960); Strupp-Schlochauer, Worterbuch des Volkerrechts (Berlin, 1960-1962). 6 Cf. Dabrowa, “The Depositary of an International Agreement” (in Polish), 20 Państwo i Prawo 591 (1965); Dehausay, “Le depositaire de traitéis,” in 51 Eevue générale de Droit international public 489 (1952); Kappeler, “Praxis des Depositä, re multilateraler Staatsverträger gegenüber Vorbehalten,” in 20 Sehweizerisches Jahrbueh für Internationales Eecht 21 (1963). See also Higgins, The Development of International Law through the Political Organs of the United Nations passim (London, 1963); Péchota, Mnohostranné mezínarodní smoulvy a přistup knim passim (Prague, 1965

7 First Report on the Law of Treaties (Doe. A/CN.4/23), Art. 9, comment, par. 83. 1950 I.L.C. Yearbook (II) 222 at 238. The authors of the Harvard Draft adopted the same hypothesis, e.g., in Arts. 10 and 12. See also Art. 8 of the Havana Convention of 1928 on the Law of Treaties, 29 A.J.I.L. Supp. at 1205 (1935). It may be noted that, in the view of the Secretariat, it is the Secretary General of the United Nations or the Secretariat that is the depositary, and not the Organization as such. Statement of Dr. Liang at the 657th meeting, 1962 I.L.C. Yearbook (I) 186. That opinion does not seem to have persuaded the International Law Commission which, in Art. 71, deliberately employed the expression “international organization” alongside “state.“

8 Reservations to multilateral conventions. Report by Mr. J. L. Brierly (Doc. A/CN.4/41), 1951 I.L.C. Yearbook (II) 1; Draft report to the General Assembly (Doc. A/CN.4/L.18, mimeographed only), Annex, I.L.C. Yearbook (cited) 26.

9 Text of articles tentatively adopted by the Commission at its third session (Doc. A/CN.4/L.28), Yearbook (cited) 73. Also reproduced in Doc. A/CN.4/L.99, 1962 (mimeographed only).

10 Sir Herseh Lauterpacht, [First] Report on the Law of Treaties (Doe. A/CN.4/63), 1953 I.L.C. Yearbook (II) 90; Second Report (Doc. A/CN.4/87), 1954 Md. (II) 123.

11 Sir Gerald Fitzmaurice, [First] Report on the Law of Treaties (Doc. A/CN.4/ 101), Art. 13 (fc), Art. 31, and Commentary, par. 61, 1956 Yearbook (II) 104; Second Report (Doc. A/CN.4/107), Art. 25 and Commentary, pars. 185-187, 1957 Yearbook, (II) 16.

12 See also Resolutions of the General Assembly concerning the Law of Treaties. Memorandum prepared by the Secretariat (Doc. A/CN.4/154), pars. 17, 18, 100-104; 1963 Yearbook (II) 1.

13 Res. 598 (VI) of Jan. 12, 1952; Res. 1452 (XIV) of Nov. 7, 1959. See Memorandum cited in note 12, pars. 106-124.

14 Doc. A/C.6/L.450 and Add.l. General Assembly, 14th Sess., Official Records, Annexes, agenda item 65.

15 There is by now considerable material in the various official or semi-official compendia on state practice and on the practice of international organizations. On state practice, of. Guggenheim, “ L a Pratique Suisse,” 20 Schweizerisches Jahrbuch fur Internationales Recht at 76 (1963); 5 Hackworth, Digest of International Law 72 (Washington, D.C., 1943); U.S. Department of State, The Law of Treaties as applied by the Government of the United States of America passim (Washington, D.C., March 31, 1950) (this is the memorandum made available to Professor Brierly and referred to in his First Eeport (cited in note 7 above) at 226; the present writer wishes to acknowledge the courtesy of the State Department in making available to him, early in 1966, a copy of this valuable memorandum); 1 Kiss, Répertoire de la pratique française en matiére de Droit International Public passim (1962); United Nations, Eepertory of Practice of United Nations Organs and Supplements, sub Art. 98 of the Charter, etc. And see the valuable Summary of the Practice of the Secretary-General as Depositary of Multilateral Agreements (Doc. ST/LEG/7, mimeographed only, 1959). Additional material is found in Practice of the United Nations Secretariat in Relation to Certain Questions Raised in Connexion with the Articles on the Law of Treaties: note by the Secretariat (Doc. A/CN.4/121), 1959 Yearbook (II) 82. And see Depositary Practice in Relation to Reservations: Report of the Secretary-General (Doc. A/5687), 1965 Yearbook (II) 74; The Practice of the United Nations, the Specialized Agencies and the International Atomic Energy Agency concerning their Status, Privileges and Immunities: Study by the Secretariat (Preliminary version, Doc. A/CN.4/L.118, 1967, mimeographed only). Note also: Succession of States in relation to General Multilateral Treaties of which the Secretary-General is the Depositary (Doc. A/CN.4/150), 1962 Yearbook (II) 106; Pan American Union, Resolution of May 4, 1932, on depositary functions, cited in the Report of the Secretary General (Doc. A/ 5687), 1965 Yearbook (II) at 79.

16 Both theoretically, and in practice, it is possible for a bilateral treaty to be endowed with a depositary, whose functions cannot in effect be distinguished from those of a depositary of a multilateral treaty. However, this is an exceptional course, certainly dictated by an exceptional political situation. For an example, see the Treaty of Sept. 10, 1952, between Israel and the Federal Republie of Germany, 162 U.N. Treaty Series 206. It is clear from the discussion in the 675th meeting of the International Law Commission that the draft articles are meant to apply to both types of treaty. In the nature of things, the present article is limited to the normal case of the depositary of a multilateral treaty, but in principle the views here expressed may be regarded as equally applicable in the case of a bilateral treaty (mutatis mutandis).

17 [1951] I.C.J. Rep. 15; 45 A.J.I.L. 579 (1951).

18 [1957] I.C.J. Rep. 125 at 145 (dealing with the second preliminary

19 For references to United Nations material dealing with this and with subsequent debates on this topic, see the Memorandum cited in note 12 above.

20 This seems to have been deliberate. See [1951] I.C.J. Rep. at 21. It should be recalled that these initial debates took place in a General Assembly which was dominated by the international tension flowing from the outbreak of hostilities in Korea, and the Secretary General himself (Trygve Lie) was already in a difficult political position. It seems that the discussions in 1926 and 1927 in the Committee for the Progressive Codification of International Law and the Council of the League of Nations on the same topic were similarly abstract. Cf. League of Nations, Doc. C.P.D.I./3rd Session/P.V., p. 26; Official Journal, 1927, pp. 770, 800, 880.

21 [1951] I.C.J. Rep. at p. 27. It will be noted that this reflects the underlying philosophy of General Assembly Bes. 24 (I).

22 800th meeting, par. 67; 803rd meeting, par. 72. 1965 Yearbook (I) 176, 200. This gave rise to Art. 29 (6is). For the subsequent legislative history, see note 2 above.

23 Proposal by the present author (Doe. A/CN.4/L.108), 1965 Yearbook (II) 73. And see discussion at the 803rd meeting, pars. 30-56, ibid. (I) 197. See also the discussions in connection with Art. 22 at the 800th meeting, 1965 Yearbook (I) 174, on Art. 50 at the 836th meeting, 1966 ibid. (I), Pt. I, p. 96, and on Art. 53 at the 847th and 848th meetings, ibid., Pt. II, p. 15, and at the 864th meeting, ibid. 155.

24 Doc. A/CN.4/144 and Add.l, 1962 Yearbook (II) 27.

25 The title of this article, which now appears as Art. 2, was changed during the second reading to “Use of terms” in order to avoid creating an impression that the meanings given to the various terms were intended as general definitions and to stress that those meanings were limited to the meanings attributed to the terms in the draft articles themselves. The proposal was made by Professor Briggs in the Commission's 777th meeting, par. 8, 1965 Yearbook (I) 10.

26 In 1962 the Commission reached the general conclusion not to base its articles on a formal distinction between bilateral and other treaties. One of the reasons was the difficulty in drawing the distinction between plurilateral and multilateral treaties in any but arbitrary terms. For a fuller discussion of this, see the present author's Bapport provisoire on Terminaison des traitfis coUectifs, submitted to the Nice Session of the Institute of International Law (1967), to be published in a future volume of the Annuaire de l'Institut de Droit International, at pars. 19-25.

27 See the 1962 Eeport of the Commission, 1962 Yearbook (II) 157. In 1965 the reference to the depositary in Art. 2 (formerly Art. 1) was dropped, but the statement of legal principle which appeared in it has been transferred to what is now Art. 72.

28 Commentary to Art. 29, par. (1). However, the ultimate placing of this group of articles at the end of the text was deliberate, since, in the Special Rapporteur's words, “the functions of a depositary were not limited to the conclusion stage.” 886th meeting, 1966 Yearbook (I), Pt. II, p. 286. Cf. also the discussion on Art. 50 at the 836th meeting, ibid. Pt. I, pp. 96, 98.

29 Doc. A/CN.4/19; 1950 Yearbook (II) at 217. It seems that at one time the United States Government may have held a similar view as that referred to for conventions for which it acts as depositary. An illustration is furnished by the Note of the Assistant Secretary of State to the Ambassador of Iraq, of May 12, 1947, concerning the adherence of Transjordan, not then recognized by the United States, to the Convention on International Civil Aviation. See the Memorandum cited in note 15 above, at p. 74. The question, of course, has to be distinguished from the entirely different question of whether the state concerned is legally entitled to have attempted to deposit a given instrument. The hypothesis here is that it was.

30 1962 Yearbook (I) 189.

31 For a curious illustration of this, see the temporary assumption by the Government of .Brazil of certain depositary functions in relation to a treaty concluded in Brazil (at the suggestion of the United States), the convention in question providing that the depositary would consist of a certain office which itself would only come into existence after the treaty had entered into force. See Instruction, dated Feb. 5, 1947, from the Department of State to the United States Ambassador at Bio de Janeiro, and Memorandum of the Government of Brazil of Oct. 18, 1957, in the Memorandum cited in note 15 above, at p. 21.

32 Sir Humphrey Waldock, Fourth Beport on the Law of Treaties (Doc. A/CN.4/ 177/Add.l) on Art. 28; 1965 Yearbook (II) at 63.

33 For a recent illustration, note the procedure by which the Secretary General of the United Nations assumed the functions of depositary for all the instruments of ratification of the amendments to the Charter contained in General Assembly Bes. 1991 (XVIII) of Dec. 17, 1963, despite the fact that the resolution itself was silent on the matter, and, by Art. I l l of the Charter, the United States is depositary of the original Charter and of the instruments of ratification of the original signatories of that instrument. See 1964 United Nations Juridical Yearbook 249.

34 It is believed that this rule corresponds with the practice of the Secretary General in this regard, although published instances of disputes of this character are, in fact, rare.

35 For a categorical instruction by a competent organ of an international organization to the Secretary General of that organization not to accept instruments of ratification of the International Telecommunication Convention of 1965 by the “existing illegal regime in Rhodesia,” see Res. No. 599 adopted by the Administrative Council of the International Telecommunication Union on June 2, 1966, circulated to member states in letter No. 5042/65 of June 14, 1966. For text, see 5 International Legal Materials 989 (1966). For criticism of the action of the Secretariat of the same organization in regard to the accession of South Africa, on behalf of South-West Africa, to the 1965 Telecommunication Convention, see letter of the Union of Soviet Socialist Republics to the Secretary General of the United Nations of April 25, 1967 (Doc. A/6648), General Assembly, 5th Spec. Sess., Official Records, Annexes, agenda item 7.

36 As a significant illustration, see the statement of the Secretary General himself (U Thant) at the 1258th meeting of the General Assembly (pars. 99-101) on the manner of implementing the so-called “all states” formula for participation in treaties concluded under the auspices of the United Nations.

37 In the Maritime Safety Committee case (an advisory opinion) the Court relied upon the interpretation placed by the depositary on the special provisions of the entry into force clause, that interpretation not having been challenged by any interested state and being based on an arguable construction of the clause. Although the case itself was concerned with a different provision of the convention, the substantive legal and factual issue was analogous to the criterion for determining the entry into force of the convention, and the depositary was empowered to fix the time of the entry into force (subject to the implicit right of any interested state to challenge the validity of that determination through appropriate organs or channels). Indirectly, therefore, the Court upheld the unchallenged interpretation of the entry into force clause made earlier by the depositary. [1960] I.C.J. Rep. 150 at 167; 54 A.J.I.L. 884 at 891 (1960). Of course, this case has nothing directly to do with the legal qualification of the status of the depositary, and doubtless considerable weight was attached to the fact that the depositary's action had not been challenged.

38 From par. (1) of the Commentary on Art. 71.

39 The Commission does not seem in 1962 to have considered the other possibilities, such as where the depositary is a state which took part in the negotiations but itself did not become, or ceased to be, a contracting party. However Professor Bartos (Chairman) drew attention to this problem, although in a different context, during the second reading. 802nd meeting, par. 76, 1965 Yearbook (I) 191.

40 The words “ in particular” did not appear in the text of Art. 29 as adopted in 1962 nor in the Special Bapporteur's Fourth Eeport. The suggestion to add them was made by Professor Eeuter at the 803rd meeting. 1965 Yearbook (I) 201.

41 Cf. Art. 4 of the Commission's draft articles. The United Nations itself appears to have no formal general rules save those relating to reservations, although by now it possesses a considerable amount of consistent practice, as can be seen from the documents cited in note 15 above. The Food and Agriculture Organization has adopted some formal provisions on the topic. See Principles and Procedures which should govern Conventions and Agreements concluded under Articles XIV and XV of the Constitution and Commissions and Committees established under Article VI of the Constitution, in Eeport of the 9th Session of the Conference 223 ff. (1957).

42 See discussion at the 815th meeting. 1965 Yearbook (I) 279-280.

43 For consolidated text of the regulations, see 1962 Yearbook (II) 194. This element was not included in the regulations as originally adopted, but was added by Ees. 364 B (IV) of Dec. 1, 1949. And see the Memorandum cited in note 12 above, pars. 137-139. 44Sir Humphrey Waldock, Fourth Eeport (cited), Observations and Proposals on Art. 29, par. 8, referring particularly to the position of Switzerland as depositary. 1965 Yearbook (II) at 64. In fact, such treaties and subsequent actions relating to them are regularly registered by Switzerland without difficulty, although this is probably for the most part the consequence of an explicit provision in the treaty. Cf. Art. 64 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field of 1949, U.N. Treaty Series, Vol. 75. No explicit reference or instruction appeared in the Final Act of the Geneva Conference, which nevertheless was also registered by the depositary.

44 Ibid. Early in the United Nations, the Secretariat seems to have wanted to make this a general rule.

45 Bepertory of Practice of United Nations Organs, Art. 102, par. 69. It is not clear why this was not followed up in the final stages of the codification by the International Law Commission, despite the Commission's invitation to the Secretariat to do so. See discussion at the 815th meeting, 1965 Yearbook (I) 279. 45See the Special Eapporteur's explanation at the 802nd meeting, 1965 Yearbook (I) 190. Nevertheless, it is suggested that close analysis will show that many of the depositary's duties are in fact directed towards ascertaining the attitudes of the different parties to the various transactions performed through the depositary. For an illustration, of. the discussions at the Sixth and Seventh Sessions of the General Assembly on the correction of the Chinese text of the Genocide Convention, and Bes. 691 (VII) of Dec. 21, 1952. See the Memorandum cited in note 12 above, pars. 144-154.

46 Cf. the inquiry made of the Spanish Government, as depositary of the Act of Algeciras, in the U.S. Nationals in Morocco case. Pleadings, Vol. II, pp. 407, 408 and 410; [1952] I.C.J. Bep. 176 at 178. Spain was not at that time a Member of the United Nations.

47 This language had actually been used by Mr. Kerno, representative of the Secretary General, in one of the earlier discussions in the Commission. See 104th meeting and 105th meeting, 1951 Yearbook (I) 187, 199.

48 See the Memorandum cited in note 15 above, p. 73. This was written before the Charter had been signed by all the states entitled to sign it, and before it had been ratified by a sufficiently large number of states to bring it into force.

49 See particularly the discussion at the 782nd and 783rd meetings (1965). In fairness it must also be pointed out that the members of the Commission themselves had realized much earlier this weakness of the articles as adopted in 1962, and a great deal of thought had been put into the matter even before the second reading began.

50 The relevant facts were as follows: Portugal became a party to the Statute of the Court on Dec. 14, 1955, and on Dec. 19 filed a declaration of acceptance of the compulsory jurisdiction. Proceedings were instituted on Dec. 22. On Jan. 19, 1956, the depositary (the Secretary General of the United Nations) circulated the customary note informing the states concerned, including the respondent government, that the declaration had been deposited. For a full account of this incident, see Eight of Passage case, Pleadings, Vol. I, pp. 112 ff. On the basis of those facts, the respondent government contended that in the absence of actual communication of the acceptance of the compulsory jurisdiction to it before the institution of the proceedings, the Court lacked jurisdiction. The Court dismissed this preliminary objection, for the most part on a strict interpretation of Art. 36, par. 4, of the Statute of the Court. Incidentally, it is not clear from the Pleadings in this case when or how the Secretary General's circular note was received by the respondent government. The Pleadings concentrate on the date upon which it was sent. .

51 1965 Yearbook (I) 280.

52 862nd meeting, pars. 3-5. 1966 Yearbook (I), Pt. II, p. 134.

53 See Conference Eoom Doc. No. 12, July 1, 1966, containing the Drafting Committee's integrated proposals for the articles then numbered 15, 23 and 29 (bis). It is to be regretted that the Yearbook does not indicate adequately how the Drafting Committee's reports were submitted to the Commission. The Conference Eoom Documents are not generally easily available.

54 884th meeting, par. 71; 1966 Yearbook (I), Pt. II, p. 273.

55 Ibid.

56 885th meeting, par. 34; ibid. 277

57 The Drafting Committee later slightly adjusted Art. 20 (formerly Art. 22) on the withdrawal of reservations, to the same effect. See Doc. A/CN.4/L.117. The textual adjustments proposed by the Drafting Committee and incorporated in the text which was before the Commission when the articles were finally adopted at the 892nd and 893rd meetings are not mentioned in 1966 Yearbook (I), Pt. II, and at present are only available in the mimeographed document.

58 173 League of Nations Treaty Series 223. See 885th meeting, par. 7, 1966 Yearbook (I), Pt. II, p. 275. At the 887th meeting he amplified this by reference to the Vienna Convention on Consular Eelations of 1963. Ibid. 288-289.

59 Art. 73, Commentary, par. (2).

60 894th meeting, par. 43; 1966 Yearbook (I), Pt. II, p. 338.

61 In his Fourth Report (cited in note 32 above), Art. 1 (1) (g), Sir Humphrey Waldock expressed doubt whether that precedent required any modification in the definition of depositary as it had been adopted in 1962. 1965 Yearbook (II) at 15. No further attention seems to have been given by the Commission to this aspect. The “trinity of depositaries,” in Sir Humphrey's words, was of course a political device to overcome the “all states” formula in the participation clause of this treaty. Cf. Schlesinger, A Thousand Days 907-908 (1965). And cf. the statement of the Legal Adviser of the Department of State submitted to the Foreign Eelations Committee of the Senate, text in 58 A.J.I.L. 170-175 (1964). The full text of that statement was made available to the International Law Commission. 1965 Yearbook (I) 47.

62 The Nuclear Test-Ban Treaty of Aug. 5, 1963, was later registered with the TJ.N. Secretariat by each of the three depositaries on the same day (Oct. 15, 1963). See 480 U.N. Treaty Series 43. The Treaty Series contains three separate lists of signatures: on p. 50 the signatures affixed at Moscow; on p. 65 the signatures affixed at Washington; and on p. 80 the signatures affixed at London. All three sets of signatures appear in columnar form on p. 96. Subsequent action regarding the treaty appears in the Treaty Series (Annex A) on the basis of information supplied by each one of the depositaries.

63 For a significant illustration of this, note the rejection by the Commission of the suggestion that the depositary could be given some powers to control the issue of the conformity of the exercise of the treaty-making power with the provisions of the domestic constitution. Compare Sir Humphrey Waldock, Second Eeport on the Law of Treaties (Doc. A/CN.4/156), Art. 5, with Art. 31 as adopted by the Commission in 1963 (Art. 43 as adopted in 1966). 1963 Yearbook (II) 41, 190. As far back as 1951 the representative of the Secretary General had expressed misgivings over a suggestion to endow the depositary with any such functions. Eeference to this appears in par. (3) of the Commentary on Art. 43 as finally adopted in 1966.