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Procedures for Establishing the Invalidity or Termination of Treaties under the International Law Commission’s 1966 Draft Articles on the Law of Treaties

Published online by Cambridge University Press:  28 March 2017

Herbert W. Briggs
Herbert W. Briggs*
Affiliation:
Of the Board of Editors
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Extract

The 1966 Draft Articles on the Law of Treaties, drafted over a period of five years of intensive work by an official organ of the international community—the International Law Commission of the United Nations—is more comprehensive and more reflective of community consensus than any previous draft prepared by international lawyers on the law of treaties. In contrast with the excellent Draft Convention on the Law of Treaties completed by the Harvard Eesearch in International Law in 1935, preparation of the Commission’s draft had the advantage of participation by members representative of all continents and of the views of states which were not in existence in 1935.

Type
Research Article
Information
American Journal of International Law , Volume 61 , Issue 4 , October 1967 , pp. 976 - 989
Copyright
Copyright © American Society of International Law 1967

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References

1 Reports of the International Law Commission … on its 18th Sess., 1966, General Assembly, 21st Sess., Official Records, Supp. No. 9 (A/6309/Rev. 1); 61 A.J.I.L. 255- 463 (1967).

2 29 A.J.I.L. Supp. 653 ff (1935).

3 It is not the intention of the writer to pursue the doctrinal problems raised by concepts of void, voidable, or inexistent acts. See, e.g., the pleadings of Professors Paul Guggenheim (for Honduras) and Gaetano Morelli (for Nicaragua) in the Arbitral Award of the King of Spain case, 1960, I.C.J. Pleadings; Hans W. Baade, “Nullity and Avoidance in Public International Law,” 39 Indiana Law Journal 497-559 (1964), and the works there cited.

4 Cf. Shabtai Eosenne, Eapport provisoire, La Terminaison des trails collectifs, 1966, pars. 42-44, printed by the Institut de Droit International and to be published in its 1967 Annuaire.

5 I.L.C. Rep., 18th Sess., 1966, p. 66; 61 A.J.I.L. 387 (1967). The adoption of Art. 39 (then Art. 30) at the 862nd meeting of the Commission on June 2, 1966, was by unanimous vote, although one member abstained because of doubts as to the exhaustiveness of the grounds for invalidity or denunciation set forth in the Commission's Draft Articles, a point which also bothered some other members and is referred to in par. (5) of the Commentary. 1966 I.L.C. Yearbook (18th Sess., Vol. I, Pt. II) 140.

6 834th meeting, Jan. 19, 1966, par. 9; 1966 I.L.C. Yearbook (17th Sess., 2nd Part, Vol. I, Pt. I) 79.

7 The relevant provision of Art. 63 provides: “ 1 . Any act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of Article 62 shall be carried out through an instrument communicated to the other parties.''

8 United Nations Conference on the Law of the Sea, Official Records, Vol. I I : Plenary Meetings, 7th Plenary Meeting, April 21, 1958, p. 8, par. 5.

9 Second Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur, A/CN.4/156/Add. 2, April 30, 1963; 1963 I.L.C. Yearbook (II) 87.

10 Ibid. 89.

11 See 1963 I.L.C. Yearbook (I) 167-182, 278-280 (debate on Art. 25 at 698th, 699th, 700th, 714th meetings, June 12-14, July 4, 1963).

12 Ibid. 167 (Castrén), 176 (Briggs).

13 Ibid 170 (Tunkin).

14 ibid. 167 ana 171 (Waldock), 171 (Ago), 171 (Gros), 172 (Verdross), 176 (Briggs).

15 See ibid. 171 ff., 278-280 (714th meeting, July 4, 1963) and (debate on Art. 51) ibid. 18th Sess., 1966, Vol. I, Pt. II, 3-8 (845th meeting, May 5, 1966), 148-151 (864th meeting, June 6, 1966), 157-159 (865th meeting, June 8, 1966).

16 See 1966 I.L.C. Rep. (TJ.N. Doe. A/6309/Bev. 1), Annex, pp. 106-185.

17 Ibid. 164-165.

18 ibid. 169.

19 Hid. 180

20 1956 I.L.C. Yearbook (II) 300.

21 United Nations Conference on the Law of the Sea, Official Records, Vol. VI: Fourth Committee (Continental Shelf), Summary Records 99-106 (34th and 35th Meetings, April 10, 11, 1958).

22 Ibid. 99, par. 6.

23 Ibid. 106 (35th Meeting, April 10, 1958).

24 Ibid. 106, 140 (A/CONF. 13/C.4/L.51). The Argentine proposal, “shall he settled by the procedure provided for in the Charter,” had been further weakened by acceptance of a Ceylonese amendment from the floor just prior to the vote by which “ in accordance with the principles of” had been substituted for the words “by the procedure provided for.” Hid. 104, pars. 25, 26.

25 Ibid. 100, par. 21.

26 Ibid., Official Records, Vol. II, Plenary Meetings, Summary Records 7-10 (7th Meeting, April 21, 1958), 30-35 (13th Meeting, April 25, 1958). Tor the texts of the Swiss, Colombian and Netherlands proposals, see ibid. 110-112.

27 Ibid. 110.

28 Ibid. 33 (30th Plenary Meeting, April 25, 1958).

29 Ibid. 35.

30 Ibid. 129 (A/CONF. 13/L.40, April 26, 1958).

31 lbid. 110 (A/CONF. 13/BUE/L.3, April 12, 1958).

32 Cf. Annuaire de l'Institut de Droit International, Session de Grenade, 1956, Vol. 46, pp. 178-264, 360-362, 365-367; text of resolution also in 50 A.J.I.L. 645 (1956). For an examination of the technical adequacy, rather than the political sufficiency, of the Institute proposals and the drafting of the Optional Protocols, see Herbert W. Briggs, “ T h e Optional Protocols of Geneva (1958) and Vienna (1961, 1963) concerning the Compulsory Settlement of Disputes,” to be published in Hommage 9. Paul Guggenheim.

33 Official Records, loc. cit., Vol. II, p. 55. For the text of the Optional Protocol (A/CONF.13/L.57) see ibid. 145-146; 450 U.N. Treaty Series 169; 52 A.J.I.L. 862- 863 (1958). By its provisions, states parties to the Protocol and to any one or more of the 1958 Geneva Conventions on the Law of the Sea agreed, unless some other form of settlement was provided for in the Convention “ o r has been agreed upon by the Parties [sic] within a reasonable period”:

Article I

Disputes arising out of the interpretation or application of any Convention on the Law of the Sea shall lie within the compulsory jurisdiction of the International Court of Justice, and may accordingly be brought before the Court by an application made by any party to the dispute being a party to this Protocol. Art. III provided for the alternative possibility of arbitration; and Art. IV, for the possibility of conciliation, which latter, if not successful, made possible again unilateral reference of the dispute to the Court.

34 Ibid. 92.

35 Ibid. 92.

36 Ibid. 55. See also ibid. 15-16, pars. 7-11. as Except for the special provisions of Arts. 9-12 of the Convention on Pishing and Conservation of the Living Resources of the High Seas, 1958, T.I.A.S., No. 5969.

37 1958 I.L.C. Yearbook (II) 105.

38 United Nations Conference on Diplomatic Intercourse and Immunities, Vienna, 1961, Official Records, Vol. I, pp. 219-225; Vol. II, pp. 46, 68.

39 Ibid., Vol. I, 221, pars. 54, 59.

40 lbid. 224, pars. 22-30 (38th meeting, April 4, 1961).

41 Ibid. par. 30.

42 Ibid . par. 36.

43 Ibid. 42, par. 3.

44 Ibid. 45.

45 1961 IX.C. Yearbook (II) 92-128.

46 United Nations Conference on Consular Relations, Vienna, 1963, Official Records, Vol. II, p. 61 (A/CONF.25/C.1/L.70, March 8, 1963).

47 lbid. 72 (A/CONF.25/C.1/L.161, March 25, 1963).

48 lbid. 72 (A/CONF.25/C.1/L.162 and 163, both March 26, 1963).

49 Ibid., Vol. I, pp. 249-260 (29th, 30th and 31st Meetings, March 26, 28, 1963).

50 Ibid. 258, pars. 18, 24.

51 Ibid. 258-260, pars. 25-55 (31st Meeting, March 28, 1963).

52 Ibid. 87-88. For the text and its sponsors, Hid., Vol. II, pp. 169-170 (A/ CONF.25/L.46). ‘

53 Ibid., Vol. I, pp. 87-88.

54 The discussion of compulsory adjudication in the Geneva and Vienna Conferences was less systematic and comprehensive than that found in the summary records, proposals and reports of the Mexico City (1964) and New York (1966) meetings of the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States. Cf. TJ.N. Docs. A/5746, Nov. 16, 1964, pars. 128 ff.; A/6230, June 27, 1966, pars. 157 ff., with the relevant summary records. On the other hand, the opposition to compulsory jurisdiction expressed in the Mexico City and New York meetings was not focused on its relation to codification conventions as such or the special considerations which their interpretation and application involve. See McWhinney, at 60 A.J.I.L. 16 (1966) and Houben, at 61 ibid. 710 (1967).

55 Loc. cit., Vol. I, p. 92, par. 51.

56 Australia, Colombia, Dominican Republic Finland, France, Haiti, Madagascar, Malawi, Malaysia, Malta, Nepal, Netherlands, New Zealand, Portugal, Sierra Leone, Sweden, Switzerland, Uganda, United Kingdom. U.N. Doc. ST/LEG/3, Rev. 1, with supplements through Dec. 31, 1966.

57 Austria, Cambodia, Congo (Democratic Republic of), Costa Rica, Dominican Republic, Ecuador, Gabon, Germany, India, Iran, Iraq, Japan, Kenya, Laos, Liechtenstein, Luxembourg, Madagascar, Malaysia, Malta, Niger, Panama, Philippines, Sweden, Switzerland, Tanganyika, United Kingdom, Yugoslavia. Ibid., and Department of State Bulletin.

58 Dominican Republic, Gabon, Kenya, Liechtenstein, Madagascar, Philippines, Senegal, Switzerland, Upper Volta. Ibid. s” See note 32 above.