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Published online by Cambridge University Press: 12 February 2016
I. Generations of lawyers have laboured to establish a code on the law ol treaties. Eventually, a treaty on that subject was signed in Vienna on May 23, 1969—the “Treaty on Treaties”. Without intending now to go into questions regarding the Convention as a whole (it certainly is one of the best prepared pieces of modern international legislation), attention must be paid to a matter which the President of the Conference itself, Professor Roberto Ago, found necessary to point out in a specific Report on the Final Stage of the Codification of International Law to the International Law Commission, and which has been revived as a subject of doctrinal studies, under dramatic pressure, first by the bodies which feel responsible for the security of air traffic. The need for rapid entry into force of certain international Conventions, however, also poses the question whether experience, subsequent to the Vienna Conference, is appropriately helped by that code. This is the point of observation chosen for this paper: treaty-making as part of the functional operation of inter-governmental organizations.
The question is far from being purely academic. As will be seen below, several important IGOs have these last years posed the question of simplification of entry into force of ‘their’ treaty law. It must be asked therefore whether this is—or may become—a general trend or possibly one limited to a specific category of IGOs, and hence of treaties. We will show that there are no short-cuts to “simplification” and “simple” solutions.
The views expressed in this paper are the personal views of the writer.
1 Lissitzyn, O. J., “Efforts to Codify or Restate the Law of Treaties” (1962) 62 Colum. L. R. 1166.CrossRefGoogle Scholar
2 This is the title of a paper by Kearney, R. D. and Dalton, R. E. in (1970) 64 A.J.I.L. 495.Google Scholar
3 U.N. Doc. A/CN.4/205 of July 12, 1968—at a time between the First and the Second Session of the Vienna Conference. His theses are explained in his contribution—”La codification du Droit international et les problèmes de sa réalisation”—to the Recueil d'Etudes en hommage à Paul Guggenheim (Geneva, 1968).
4 The reference is to the International Civil Aviation Organization (ICAO) and IATA (the International Air Transport Association, 1945); the first is an IGO, the second a (cartelist) NGO, incorporated under Canadian law. The document referred to is ICAOs A/17-WP/33 of June 2, 1970, to which IATA's Memorandum is attached, the title of which we have taken for this paper.
5 The Convention on Offences and Certain Other Acts Committed on Board Aircraft, Tokyo, 1963, the Convention for the Suppression of Unlawful Seizure of Aircraft, The Hague, 1970, the Convention on Acts of Unlawful Interference with International Civil Aviation, Montreal, 1971.
6 See the documents mentioned supra nn. 3, 4 and 5.
7 It has become customary to use the abbreviation ‘IGO’ for such Organizations, in contrast generally to ‘NGO’, which indicates international non-governmental Organizations. The use of such abbreviations make it possible to “personify” and—in a certain sense—to typify the phenomenon one is discussing.
8 These concepts, as the philosophical background in general to this paper, will be found in this writer's study on International Group Protection (Sijthoff, Leyden, 1968). Of particular importance for the present matter are Ch. II (The Law: Order and Protection through Consent) and Ch. V (The Addressees of the Law: the Agent of Protection).
9 We shall not investigate here that other ambivalence attaching to adoption—namely, that the same vote of an Assembly authorizes adoption of a treaty as well as of an Organization-recommendation. While in the first case adoption remains a conditional measure (one dependent on further State action, essentially outside the Organization), adoption in the second case gives it immediately a standing within the Organization, vested with the authority of a Recommendation. It may well be that in Realpolitik this distinction is immaterial for the State members, but it might be different in so far as inner-Organization activity is concerned, which, on its part, is not conditional on ratification.
10 A similar distinction exists within other Specialized Agencies (which do not generally operate with Declarations) in the form of tandem Recommendations and Conventions. Always, however, adoption means a vote taken within a political arena, and shielded by Art. 5 of the Vienna Convention.
11 In this order reported in: U.N. Conference on the Law of Treaties, A/Conf. 39, 1st Session, 1968 (New York, 1969), at pp. 36, 42, 47, 48, 48.
12 Deletion of Art. 5 was variously proposed by the U.S., Sweden, the Philippines and Congo Brazzaville, but was rejected by 84 votes to 10, with two abstentions; ibid. p. 57. The case for the United States was presented by Prof. McDougal, his main argument being that “States desiring to evade the convention's basic provisions would only have to establish an international organization to meet their requirements”: they would thus enjoy “a comprehensive, automatic and unquestionable exemption…(T)he intervention of the observer for the ILO at the previous meeting could only enhance that fear”; ibid. p. 43. Indeed, the U.S. were on June 1, 1970 on record with seven ILO Conventions ratified, out of a total of 130, compared with 40 for the Federal Republic of Germany and 81 for France.
13 As pointed out by IATA, “it seems clear that the present procedures for bringing an international Convention into force are cumbersome, uncertain, and slow. Hijacking and armed aggression are only one area—though undoubtedly the most urgent—in which it is important that the draft International Convention be implemented rapidly. Another such area is the question of revision of the Warsaw: Hague system of carriers' liability”: loc. cit., supra n. 4.
14 See infra n. 30.
15 1963, II, ILC Yrbk, 307.
16 The point is an artificial one which would not withstand the pressure of realities, so much so that the U.N. Juridical Yearbook—now, since 1963, in its seventh year—contains an annual chapter on “Treaties concerning international law concluded under the auspices” of (A) the U.N., and (B) “IGOs related to the U.N.” [emphasis added]. Such treaties include not only those conforming to the usual pattern of U.N. or Special Agency trusteeship, but also such treaties which—for very specific political reasons (now probably defunct)—make use of the trinity pattern of depositorship.
17 The ILC simultaneously deleted a draft Article on “Negotiation and drawing up of a treaty” (then Art. 5; A/CN.4/L.107) which read: “A treaty is drawn up by a process of negotiation which may take place either through the diplomatic or some other agreed channel or at meetings of representatives or at an international conference. In the case of treaties negotiated under the auspices of an international organization, the treaty may be drawn up either at an international conference or in some organ of the organization itself”. It appears that this provision is valuable as a means of interpretation: negotiation is accentuated, i.e., preference is given to diplomatic (business) negotiation over a parliamentary (political) debate. Also, the drafting of “some organ of the organization itself” retains its authority even where the conference of plenipotentiaries has been relegated to a place outside the organization.
18 However, considering that terms of reference are given by the U.N. Gen. Assembly to each conference of this type—thus 2166(XXI) and 2278(XXII) to the Vienna Conference on the Law of Treaties—not much is left of autonomy. True, a few non-Member States are invited to participate under the “under the auspices” formula (the Federal Republic of Germany, the Holy See, Lichtenstein, Monaco, San Marino, Switzerland); they may slightly influence voting ratios.
19 “Where a treaty is a constituent instrument of an international organization, or has been drawn up within an international organization, the application of the provisions of Section III of this Part shall be subject to the established rules of the organization concerned”.
20 1966, II, ILC Yrbk, 191.
21 This term nevertheless—and in spite of what is reported in n. 16 supra—appears among the definitions of Art. 2, meaning “a State which took part in the drawing up and adoption of the text of the treaty”.
22 “The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed”; the words here italicized would permit the adoption of a “negative notification procedure”.
23 Cf. the ICAO document quoted above.
24 This writer, never concealing his leanings towards a modernized Natural Law, is on record with a set of arguments which are to show that there is some normative authority to such Declarations (op. cit., supra n. 8 at pp. 173 et seq). It has to be admitted, however, that the problem is not so much one of a categoric assignment of rank to a norm, as of confidence in the organization called upon to apply it. We will revert to this problem below.
25 See infra n. 27.
26 This manoeuvre is the cumulative effect of adoption and the action by the quorum of ratifiers (which for purposes of entry into force, constitutes, by definition, a minority of the signatories) and may render the substance of the treaty binding upon non-ratifiers (Art. 38 VC), though with proper exception allowed for synallagmatic provisions of the treaty in question: cf. Lador-Lederer (op. cit., supra n. 8, p. 182).
27 Often, linguistic variations which are on the face of little substance obtain in this manner a specific semantic connotation which—according to accepted canons of interpretation—are supposed to be taken into consideration whenever the question is to discover the “intention of the Parties” (see supra n. 20). This formulation of the problem leads immediately to the next difficulty: which are the “Parties” viewed, those for the compromise formula which was pressed for by the non-ratifiers or those for the defeated formula? One should say that at present no interpretation is possible without a combined reading of the list of ratifiers and the corresponding voting records.
28 The Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity, adopted by the U.N. General Assembly on November 26, 1968 (Res. 2391 (XXIII)) is an example. The total vote (“present and voting”) was 101 (58 for, 7 against, 36 abstentions) but the Convention “entered into force” on the basis of ten ratifications—all of Communist bloc States; later a few others acceded. This is to say that out of 58 ayes, 47 voted in this sense in order to have a certain text adopted or in order to requite services rendered to them otherwise by the main interested parties: but the fact remains that nearly 5/6 of the ayes were disinterested in ratification. Thus, the Convention was “brought into force” by 10% of the U.N. membership, while nine tenths (and, in fact, more, if the whole membership is counted) expressed either opposition or indifference. Thus, the positive interest of the ten ratifiers—the members of the Warsaw Pact (with the exception of the Ostzone), with a couple of others—overruled a possibly far greater number of States which, had the quorum of adoption not been prejudged, might have adopted a far better balanced treaty.
29 See the manner in which the International Military Tribunal of Nuremberg, 1946, reflected the authority of the draft Treaty of Mutual Assistance—sponsored by the League of Nations in 1923—which later resulted in the Briand-Kellogg Pact of 1928 and the Protocol for the Pacific Settlement of International Disputes, sponsored by the same in 1924: cf. Cmd 6964, pp. 40–1.
30 One will note, however, that the stringency of this rule—particularly in its application to reservations—is even wider, considering that it is being applied categorically in the social collaboration area—ILO Conventions—or in political coexistence matters. Nor is it so clear whether the same stringency rules are applied in all Specialized Agencies. Edward Yemin gives a picture of inconsistencies he has noted in matters of amendment and reservation practices: Legislative Powers in the U.N. and Specialized Agencies (Leyden, 1969).
31 For considerations of this kind, IMCO commissioned an examination of how to improve amendment procedures of Conventions for which it is the depositary; doc. A.VII/12 of August 2, 1971. Thereupon, the 7th IMCO Assembly—October 1971, Res. A.249(VII)—decided that the Maritime Safety Committee and the Legal Committee be invited to prepare for the 8th Regular Session of the Assembly draft proposals for accelerating the bringing into force of amendments.
32 The so-called “negative notification procedure” of Art. 38 of the Chicago (ICAO) Convention, 1944. Provisions to a like effect are found in the International Convention for the Safety of Life at Sea, 1960 (Art. IC(d)) upon prior determination in accordance with Art. IX (e): accordingly, amendments were adopted in 1966, 1967, 1968, 1969, 1971; the International Convention for the Prevention of Pollution of the Sea by Oil, 1954 (Art. XVI (4); amendments adopted in 1969, 1971); the International Convention on Load Lines, 1966 (Art. 29(3) (c); amendments adopted 1971).
33 ICAO: Chicago Convention, Art. 94/b.
34 The object of the opting-out reform is drastically to reduce the time in which the decision “to remain inactive” frustrates the coming into force of a convention: “While our recommendations would not guarantee that the Convention would be implemented in any particular case, they would require an overt act by States which do not wish to participate (the procedures for negative notification, or selective acceptance envisaged by the First Alternative) or at least a notification by the States that found it impossible to implement the Convention (Second Alternative)”: loc. cit.
35 Nevertheless, this system has not been found sufficient and a plebiscite was initiated among member States (Note of March 6, 1972) based on a Secretariat study (MSC XXV/13 of January 24, 1972). Two alternatives are submitted for consideration: Alternative I: “to revise each Convention…so that a greater authority for adopting amendments might be delegated to the appropriate IMCO organs”; Alternative II: “to amend the IMCO Convention itself by the inclusion of provisions expressly empowering the Organization to adopt, revise and amend conventions and regulations and bring them into force either with or without the formal acceptance by the Contracting Governments”. Also, “consideration should be given as to whether Annexes which require frequent review and up-dating could be given the status of Recommendations”.
36 ICAO Doc. A-17/WP.33 suggests—among other possibilities—”to submit the text to a vote of the ICAO Assembly… instead of calling an ad hoc diplomatic conference. This approach would have some affinity with the ILO procedure”. It is added later in the same document: “If ICAO is to be the chosen vehicle for the introduction of any procedures along the lines suggested…it would probably be necessary to review the Chicago Convention to determine whether a new chapter (specifying the area within which action of this kind could be taken) should be added”. A more elastic procedure would consist in the development of Air Law conventions through a procedure “which adapted the present ICAO machinery with respect to Technical Annexes” to the Chicago Convention.
37 Cf. supra n. 29. One may add that opting-out of certain provisions only of a Convention is suggested by ICAO's Alternative I: “The Convention would wherever practicable indicate certain Chapters or Articles that States can accept or reject with such qualifications as they think fit, so that objection to these provisions will not necessarily entail notification by a State that it rejects the whole Convention”.
38 While Art. 53 contains safeguarding clauses which accommodate technocratic peremptory law within ‘classic’ ius cogens (such as that the law in question must be ‘general’, that it has been ‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted”), there is also one in the opposite direction (that such peremptory law “can be modified only by a subsequent norm of general international law having the same character”).
39 Para. 3 of the ILC Commentary to Draft Art. 50 relates inter alia to “acts, such as trade in slaves, piracy or genocide, in the suppression of which every state is called upon to cooperate”. However, the other two examples (the unlawful use of force contrary to the principles of the Charter, and acts criminal under international law) show that the ILC—and the Vienna Conference—had in view political coexistence (or at the best social collaboration treaties) rather than the technocratic peremptori-ness here envisaged.
40 The crucial character of this aspect came to a possibly too personal, but very symptomatic, outburst in Prof. McDougal's statement reported above in supra n. 12.
41 See supra n. 8.
42 See the two ‘leading cases’ in this respect before two ILO Commissions appointed under Art. 26 of the ILO Constitution: Ghana v. Portugal (1962) 35 I.L.R. 285; and Portugal v. Liberia (1963) 36 I.L.R. 351. A later case, also under Art. 26, relates to Greece: see LIV, ILO Official Bulletin, 1971 Sp. Supplement (also X, International Legal Materials, 1971, pp. 453 et seq.).
43 Besides addressing themselves to Member States, decisions of this type are institutional ‘arbitrations’ of a kind, the government element having to ‘arbitrate’ between the workers and the managers. Upon the whole, the three elements together (completed by a fourth—the international Organization staff) well embrace all the elements of an international technocratic approach to labour, production and even consumer protection. The norm they agree upon is at this level something different from the same norm once converted into international treaty law.
44 Loc. cit., supra n. 11 at p. 36, para. 8.
45 According to Art. 19, paras. 5 and 6, both in the case of Conventions and Recommendations adopted by the General (Labour) Conference, “each of the Members undertakes that it will…, in no case later than 18 months from the closing of the session of the Conference, bring the Convention [the Recommendation] before the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action”. See also Unesco Constitution, Art. 4(4).
46 Sub-paras, (e) and (d) respectively of Art. 19 provide that “no further obligation shall rest upon the Member except that it shall report to the Director-General of the ILO, at appropriate intervals as requested by the Governing Body, the position of its law and practice in regard to the matters dealt with in the Convention [Recommendation] showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention…by legislation, administrative action, collective agreement, or otherwise and stating the difficulties which prevent or delay the ratification of such Convention”.
47 Landy, E. A., The Effectiveness of International Supervision—30 Years of ILO Experience (London, 1966)Google Scholar; Valticos, N., “Aperçu de certains grands problèmes du contrôle international—spécialement à propos des conventions internationales du travail” III, ERANION en l'honneur de G.S. Maridakis, (Athènes, 1964) 543Google Scholaret seq.
48 On the interpretation of this basic function see the present writer, (op. cit., supra n. 8 at p. 51.
49 Rosenne, S., “Is the Constitution of an International Organization an International Treaty?” (1966) XII, Communicazioni e Studi, Milano, 21Google Scholaret seq.
50 Reference is to the federal constitution of certain States (see Lador-Lederer, op. cit., supra n. 8 at 87 et seq). This point was implictly confirmed by the Vienna Conference cf. Art. 6 VC with draft Art. 5(2).
51 Loc. cit., supra n. 11 at p. 37. It is curious that the printed official records do not establish a connection with the documentary history, which—in short—is as follows: Jenks's statement is in full keeping with an explanation which the then Director—General of ILO, Albert Thomas, gave in a Note to the Polish Government, of July 10, 1920, and the advice he gave on July 15, 1927, to the Council of the League of Nations (L.O.N. C. 212—1927; Off. Journal, 1927, pp. 1882 et seq. On the Council's attitude to the Zaleski Report see ibid., June 17, 1927 (Doc. C. 226(2) 1927/V of the Commitee of Experts for the Progressive Codification of Int. Law, p. 800); cf. Hackworth, , Digest, vol. V, p. 105Google Scholar; Jenks, , International Protection of Trade Union Freedoms, p. 542; ILO, International Labour Code, XCIX–CIVGoogle Scholar.
52 In both cases the bridge between the Convention and the beneficiary is provided by some Agent of Protection, and, if none was appointed by the Contracting Parties (in a traité-fonction to this effect), an NGO will intervene; this, rather than ‘consultation’, represents the main legal raison d'être of NGOs. Short of this, Order-through-Consent would not only be perplexing but self-destructive: it is made by States as legislators, relates to States as trustees for third beneficiaries and tolerates that these same States unmake their own ‘fiat’ through the attachment of reservations. The Refugee Convention, 1951 and the reservations attached to it are classic examples of this dilemma; Lador-Lederer, op. cit., supra n. 8 at p. 79 et seq.
53 This explains (partly) the widely varying importance of an international judiciary, arbitration included, within these categories of functional treaty law.
54 A characteristic example are the reservations to the Geneva Conventions, 1949 (for details, see Lador-Lederer, op. cit., supra n. 8 at 178 et seq.), which, when tested in the light of the Vienna Convention, are mostly inadmissible; indeed, in such cases, the correct situation should be that traités-loi with a ‘third beneficiary’ are assumed to include a ‘no reservations’ and ‘no withdrawal’ clause, unless they are admissible in the light of the law of substance; cf. Art. 142 of the Geneva Convention on Prisoners of War, 1949; ibid., p. 118 et seq.
55 This pattern of political safeguards might be disrupted through interpolation of some IGO decision wherever a gap within the system of blank-contingency, pre-conflict law would appear, on which political coexistence is based. Quite obviously, States are reluctant to admit any such practice.
56 The reference is to the practice of ‘tandem’ (‘double-track’) provisions, i.e., arrangements in which a Declaration (as enunciative law) precedes and is in certain cases followed by a parallel Convention which, on its part, contains the synallag-matic and organizational elements. It will be noted that in this case the problem of relationship between norm and treaty become patent: it is no more—as happens to be the case with the ‘normal’ ‘law-declaratory’ treaty (such as on diplomatic and consular immunities)—that the treaty relates to a more or less vague customary law (vague also as to the manner in which it was ‘posited’); the treaty is a very clear confirmation and elaboration of a prior Declaration.
57 Two provisions of the Vienna Convention attenuate in part these inconveniences: Art. 18 on the obligation not to defeat the object and purpose of a treaty prior to its entry into force, and Art. 25 on (facultative, contractual) provisional application.
58 An example of the confusion which the request for ratification may create—as a means of opting-in and opting-out—is found in the Latin American treatment of their regional problem of territorial and diplomatic asylum. While the natural-law aspect, custom, and political practice, affirm the norm, and opinions even are recorded that it was the desire of the States concerned to make the right of asylum a universally recognized principle of international law by means of treaties (cf. E. Reale, “Le droit d'asile”, 63 Recueil des Cours, 1938/1, p. 530), it is precisely the contractual element of the conference instrument, and its fate, which presents the strongest argument against any generality of any of the many acts adopted on this subject (cf. Whiteman, Digest, vol. 6, pp. 428–442). Thus the first Montevideo 1889 Treaty on International Penal Law was ratified by five States only (Argentina, Bolivia, Paraguay, Peru, Uruguay—i.e., the rule is a traité-contrat for them). The second Montevideo Treaty of 1939 explicitly entered “into effect among the High Contracting Parties in the order in which they had deposited the ratification” (it being unknown which, besides Uruguay had done so). The main declaratory Havana Convention of 1928 was signed by 20 States and ratified by 13. All those occasions were ipso facto an opportunity for the United States to go on record with a denial of the norm itself. It is difficult to evaluate the negative effect of these failures of an obviously inappropriate method in regard to a likewise obvious humanitarian provision and natural right.
59 Indeed, the opinion has been voiced more than once, and most insistently by Marxist writers, that the younger members of the international community must be given an opportunity to adopt an attitude towards the law governing the community, i.e., to revise classic law.
60 Were this problem of adoption set right, there would be no need for the suggestion that “a provision on provisional entry into force might usefully be included in certain multilateral treaties, such as codification treaties of the type of the two Vienna Conventions on diplomatic and consular relations”. (S. Rosenne at the 791st ILC meeting, 1965; I ILC Yrb'k, 1965, p. 111, para. 33). Indeed, if a certain customary law was codified, codification should add, not detract—i.e., adoption confirms the validity of the norm as it existed already prior thereto. “Provisional” application, in this connection—being of the nature of a resolutory condition—would represent an additional element of detraction.
61 Indeed, out of 34 selected Human Rights instruments, surveyed in U.N. Doc. A/Conf. 32/4 (a kind of ‘handbook’ for the 1968 Conference at Teheran), 25 originated with the U.N. (plus one dating from the L.O.N.), six with ILO, and three with UNESCO.
62 In fact, only refugees (by the Convention of 1951) enjoy specific agent protection; this writer believes to have found full justification to suggest an ‘International Human Rights Committee for Slavery’—see (1968) 3 Is. L. R. 245 et seq.
63 Reference can be made to certain considerations of the League of Nations—lately brought again to our attention by Professor Ago—according to which the text of a multilateral treaty would come up for reconsideration of certain features (negative in their nature, when oriented towards the assumingly normal course of a convention—from adoption, to signature, ratification, and entry into force). Prof. Ago, one of the internationalists most connected with the ILO, drew therefrom the conclusion that the U.N. should be aligned with the ILO system of recurrent verification of State attitudes towards ratification (a course usable for technical and possibly social collaboration IGOs but scarcely for political coexistence IGOs). In fact, however, this line of reasoning might arrive at the parallel availability of two concurrent, but inter se incompatible, sets of treaty law: the treaty law of the ratifiers and the revised treaty law of the non-ratifiers who, left alone, would arrive at a different arrangement inter se. (Cf. supra n. 57). A development of this kind would only illustrate, by recourse to a paradox, that the law, as it stands, is not conducive to ‘general’ international law.
64 Here, a distinction between pre- and post-conflict law is imperative, as also between blank-contingency (as all pre-conflict treaty necessarily has to be) and individualized treaty law, leading, because of its being either commercial (synallagmatic) or remedial (post-conflict) law, to proper traités-contrat.