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Published online by Cambridge University Press: 26 November 2021
Bilateral relations between states which are parties to a multilateral treaty may not be governed by that treaty. This may depend on an agreement between the two states concerned, which could subject their bilateral relations to a different regime that is considered to suit their specific needs better. The exclusion of bilateral relations under the multilateral treaty may also be the consequence of a unilateral expression of the will of one of these states, for instance in view of its non-recognition of the other state. The present article seeks to examine the conditions under which bilateral relations may be excluded on the basis of the unilateral determination of one of the states concerned.
Emeritus Professor, University of Florence.
1 On 2 April 2014 and on 22 March 2018 respectively.
2 The declarations were dated 13 May 2014 with regard to the Vienna Convention, C.N. 256.2014.TREATIES-III.3, and 1 May 2018 in respect of the Optional Protocol, C.N.228.2018.TREATIES-III.5. Similar declarations were made by Canada, C.N.272.2014.TREATIES-III.3, and Israel, C.N.290.2014.TREATIES-III.3 and C.N.227.2018.TREATIES-III.5.
3 Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America), Order of 15 November 2018, [2018] ICJ Rep. 708.
4 According to Art. 48, the ‘Convention shall be open for signature [until 31 March 1962] by all States Members of the United Nations or of any of the specialized agencies Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly to become a Party to the Convention’. A state included in one of these categories is entitled to ratify the Convention or may accede to it under Art. 50. Art. VII of the Optional Protocol declares that it ‘shall remain open for accession by all States which may become Parties to the Convention’.
5 For a discussion of this issue see P. Bodeau-Livinec, ‘L’opposition des Etats à l’accession de la Palestine aux traités multilatéraux dans le cadre onusien’, in T. García (ed.), La Palestine: d’un Etat non membre de l’Organisation des Nations Unies à un Etat souverain? (2015), 61, at 61–78; S. Sakran, The Legal Consequences of Limited Statehood: Palestine in Multilateral Frameworks (2019).
6 Netherlands Objection 27 December 1989, Multilateral Treaties Deposited with the Secretary-General, Ch. IV.1.
7 For the distinction between reservations and the unilateral declarations under review see J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine: les relations publiques internationales (1975), 431, at note 284; see also Bodeau-Livinec, supra note 5, at 74–5.
8 Yearbook of the International Law Commission (2011), Vol. II, Part Three, at 69.
9 Ibid., at para. 2.
10 Yearbook of the International Law Commission (1966), Vol. II, at 260.
11 Several authors reach this conclusion in their analysis of state practice. See M. Lachs, ‘Recognition and Modern Methods of International Co-Operation’, (1959) 35 British Year Book of International Law, at 252–9; B. R. Bot, Non-recognition and Treaty Relations (1968), at 30–1, 139; H. M. Blix, ‘Unilateral Recognition and Non-Recognition’, (1970) 130 Collected Courses of the Hague Academy of International Law, at 681; Verhoeven, supra note 7, at 428–30; B. S. Murty, The International Law of Diplomacy: The Diplomatic Instrument and World Public Order (1989), at 186; N. Angelet and C. Clavé, ‘Article 74 of the 1969 Vienna Convention’, in O. Corten and P. Klein (eds.), The Vienna Conventions on the Law of Treaties: A Commentary (2011), 1675, at 1682; J. Ker-Lindsay, ‘Engagement without Recognition: The Limits of Domestic Interaction with Contested States’, (2015) 91 International Affairs, at 267–85.
12 M. O. Hudson, ‘Recognition and multipartite treaties’, (1929) 23 American Journal of International Law 126, at 132.
13 R. B. Bilder et al., ‘Contemporary practice of the United States relating to International Law’, (1964) 58 American Journal of International Law, at 173.
14 These words are taken from the statement of the United Arab Emirates, C.N.60.1977.TREATIES-5.
15 See above, para. 2.
16 Yearbook of the International Law Commission supra note 8, at 69, para. 5.
17 Bot, supra note 11, at 135 gives as an example the Charter of the United Nations.
18 Inter-State communication submitted by the State of Palestine against Israel, Doc. CERD/C/100/5, para. 3.13.
19 According to Verhoeven, supra note 7, at 437–40, a unilateral declaration excluding bilateral relations under a treaty is invalid and does not produce any effect.
20 It may also affect a non-recognized entity other than a state. For reasons of simplicity, this case is not expressly envisaged in the text.
21 This has become the prevailing view. See, in particular, J.Verhoeven, ‘La reconnaissance internationale: déclin ou renouveau?’, (1993) 39 Annuaire Français de Droit International 7, at 29–32.
22 ST/LEG/7/Rev.1, at 54.
23 Guideline 2.6.7, Yearbook of the International Law Commission supra note 8, at 159.
24 See para. 3 in this article.