united nations conference on the law of treaties

A/CONF.129/16(Vol. I)

UNITED NATIONS CONFERENCEON THE LAW OF TREATIES

BETWEEN STATES AND INTERNATIONAL ORGANIZATIONSOR BETWEEN INTERNATIONAL ORGANIZATIONS

Vienna, 18 February-21 March 1986

OFFICIAL RECORDS

Volume I

Summary records of the plenary meetingsand of the meetings of the Committee of the Whole

UNITED NATIONS

A/CONF.129/16(Vol. I)

UNITED NATIONS CONFERENCEON THE LAW OF TREATIES

BETWEEN STATES AND INTERNATIONAL ORGANIZATIONSOR BETWEEN INTERNATIONAL ORGANIZATIONS

Vienna, 18 February-21 March 1986

OFFICIAL RECORDS

Volume I

Summary records of the plenary meetingsand of the meetings of the Committee of the Whole

UNITED NATIONSNew York, 1995

INTRODUCTORY NOTE

The Official Records of the United Nations Conference on the Law of Treatiesbetween States and International Organizations or between International Organ-izations consist of two volumes.

Volume I contains the summary records of the plenary meetings and of themeetings of the Committee of the Whole. Volume II contains the report of the Cre-dentials Committee, the draft articles on the law of treaties between States andinternational organizations or between international organizations adopted by theInternational Law Commission at its thirty-fourth session, the report of the Com-mittee of the Whole, texts submitted to the Conference in plenary meeting by theDrafting Committee, proposals submitted to the Conference in plenary meeting, theFinal Act, the resolutions adopted by the Conference and the Convention. It alsocontains a complete index of the documents relevant to the proceedings of theConference.

The summary records of the plenary meetings of the Conference and of themeetings of the Committee of the Whole contained in volume I were originallycirculated in mimeographed form as documents A/CONF. 129/SR.l to SR.8 andA/CONF. 129/C. 1/SR. 1 to SR.30, respectively. They include the corrections to theprovisional summary records that were requested by the delegations and suchdrafting and editorial changes as were considered necessary.

The symbols of United Nations documents are composed of capital letterscombined with figures. Mention of such a symbol indicates a reference to a UnitedNations document.

A/CONF. 129/16

UNITED NATIONS PUBLICATION

Sales No. E.94.V.5

CONTENTS

Page

General Assembly resolutions relative to theConferenceResolution 37/112 of 16 December 1982 . . . . xiResolution 38/139 of 19 December 1983 . . . . xiiResolution 39/86 of 13 December 1984 xiiResolution 40/76 of 11 December 1985 xiii

Officers of the Conference and its Commit-tees xvi

Secretariat of the Conference xviiAgenda xviiiRules of procedure xix

SUMMARY RECORDS OF THE PLENARYMEETINGS

1st plenary meetingTuesday, 18 February 1986, at 10.20 a.m.Opening of the ConferenceAddress by the representative of the Federal

President of the Republic of AustriaElection of the PresidentAdoption of the agendaAdoption of the rules of procedure

2nd plenary meetingWednesday, 19 February 1986,

at 12.10 p.m.Election of Vice-PresidentsElection of the Chairman of the Committee

of the WholeElection of the Chairman of the Drafting

CommitteeAppointment of the Credentials Commit-

tee

3rd plenary meetingWednesday, 19 February 1986,

at 4.35 p.m.Appointment of other members of the

Drafting CommitteeOrganization of workConsideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985

4455

6

6

6

6

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Page4th plenary meeting

Thursday, 13 March 1986, at 3.20 p.m.

Organization of work

5th plenary meetingTuesday, 18 March 1986, at 3.50 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)

Adoption of a convention and other instru-ments deemed appropriate and of the FinalAct of the ConferenceTexts proposed by the Drafting Commit-

tee:Article 1 (Scope of the present Conven-

tion)Article 2 (Use of terms)Article 4 (Non-retroactivity of the pres-

ent Convention)Article 5 (Treaties constituting inter-

national organizations and treatiesadopted within an international or-ganization)

Article 6 (Capacity of international or-ganizations to conclude treaties)....

Article 7 (Full powers)Article 8 (Subsequent confirmation of

an act performed without authoriza-tion)

Article 9 (Adoption of the text)Article 10 (Authentication of the

text)Article 11 (Means of expressing consent

to be bound by a treaty)

Article 12 (Consent to be bound by atreaty expressed by signature)

Article 13 (Consent to be bound by atreaty expressed by an exchange ofinstruments constituting a treaty)

Article 14 (Consent to be bound by atreaty expressed by ratification, act offormal confirmation, acceptance orapproval)

Article 15 (Consent to be bound by atreaty expressed by accession)

Article 16 (Exchange or deposit of in-struments of ratification, formal con-

1011

11

11

1212

1212

12

13

13

ill

United Nations Conference on the Law of Treaties

Pagefirmation, acceptance, approval oraccession)

Article 17 (Consent to be bound by partof a treaty and choice of differing pro-visions)

Article 18 (Obligation not to defeat theobject and purpose of a treaty prior toits entry into force)

Article 19 (Formulation of reserva-tions)

Article 20 (Acceptance of and objectionto reservations)

Article 21 (Legal effects of reservationsand of objections to reservations)

Article 22 (Withdrawal of reservationsand of objections to reservations)

Article 23 (Procedure regarding reser-vations)

Article 24 (Entry into force)Article 25 (Provisional application)Article 26 (Pacta sunt servanda)Article 27 (Internal law of States, rules

of international organizations and ob-servance of treaties)

Article 28 (Non-retroactivity of trea- 1ties) >

Article 29 (Territorial scope of treaties) JArticle 30 (Application of successive

treaties relating to the same subject-matter)

Article 31 (General rule of interpreta-tion)

Article 32 (Supplementary means of in-terpretation)

Article 33 (Interpretation of treatiesauthenticated in two or more lan-guages)

Article 34 (General rule regarding thirdStates and third organizations)

Article 38 (Rules in a treaty becomingbinding on third States or third organ-izations through international cus-tom)

Article 40 (Amendment of multilateraltreaties)

Article 41 (Agreements to modify mul-tilateral treaties between certain ofthe parties only)

Article 42 (Validity and continuance inforce of treaties)

Article 43 (Obligations imposed by in-ternational law independently of atreaty)

Article 44 (Separability of treaty provi-sions)

Article 46 (Provisions of internal law ofa State and rules of an internationalorganization regarding competence toconclude treaties)

Article 47 (Specific restrictions on au-thority to express the consent of aState or an international organization)

Article 48 (Error)

13

14

14

15

15

15

16

16

16

16

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Article 49 (Fraud)Article 50 (Corruption of a representa-

tive of a State or of an internationalorganization)

Article 51 (Coercion of a representativeof a State or of an international organ-ization)

Article 52 (Coercion of a State or ofan international organization by thethreat or use of force)

Article 53 (Treaties conflicting with aperemptory norm of general interna-tional law (jus cogens))

Article 54 (Termination of or with-drawal from a treaty under its provi-sions or by consent of the parties)

Article 55 (Reduction of the parties to amultilateral treaty below the numbernecessary for its entry into force)

Article 56 (Denunciation of or with-drawal from a treaty containing noprovision regarding termination, de-nunciation or withdrawal)

Article 57 (Suspension of the operationof a treaty under its provisions or byconsent of the parties)

Article 58 (Suspension of the oper-ation of a multilateral treaty by agree-ment between certain of the partiesonly)

Article 59 (Termination or suspensionof the operation of a treaty implied byconclusion of a later treaty)

Article 60 (Termination or suspensionof the operation of a treaty as a con-sequence of its breach)

6th plenary meetingWednesday, 19 March 1986, at 4.25 p.m.Consideration of the question of the law of


Adoption of a convention and other instru-ments deemed appropriate and of the FinalAct of the Conference (continued)Texts proposed by the Drafting Commit-

tee (continued):Article 61 (Supervening impossibility of

performance)Article 63 (Severance of diplomatic or

consular relations)Article 64 (Emergence of a new per-

emptory norm of general interna-tional law (jus cogens))

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17

17

18

18

18

18

Contents

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Article 67 (Instruments for declaringinvalid, terminating, withdrawingfrom or suspending the operation ofa treaty)

Article 68 (Revocation of notificationsand instruments provided for in arti-cles 65 and 67)

Article 69 (Consequences of the inva-lidity of a treaty)

Article 70 (Consequences of the termi-nation of a treaty)

Article 71 (Consequences of the inva-lidity of a treaty which conflicts with aperemptory norm of general interna-tional law)

Article 72 (Consequences of the sus-pension of the operation of a treaty)

Article 74 (Questions not prejudged bythe present Convention)

Article 75 (Diplomatic and consularrelations and the conclusion oftreaties)

Article 76 (Case of an aggressorState)

Article 77 (Depositaries of treaties)...Article 78 (Functions of deposita-

ries)Article 79 (Notifications and communi-

cations)Article 80 (Correction of errors in texts

or in certified copies of treaties)Article 81 (Registration and publication

of treaties)Titles of parts II to VII and sections

thereofPreambleArticle 3 (International agreements not

within the scope of the present Con-vention)

Article 35 (Treaties providing for obli-gations for third States or third organ-izations)

Article 36 (Treaties providing for rightsfor third States or third organiza-tions)

Article 37 (Revocation or modificationof obligations or rights of third Statesor third organizations)

Article 39 (General rule regarding theamendment of treaties)

Article 45 (Loss of a right to invoke aground for invalidating, terminating,withdrawing from or suspending theoperation of a treaty)

Article 62 (Fundamental change of cir-cumstances)

Article 65 (Procedure to be followedwith respect to invalidity, termina-tion, withdrawal from or suspensionof the operation of a treaty)

Article 73 (Relationship to the ViennaConvention on the Law of Trea-ties)

18,19

19

19

1920

20

20

2020

21

21

22

22

22

23

Title of the ConventionReport of the Credentials Committee

7th plenary meetingThursday, 20 March 1986, at 11.05 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 {continued)

Adoption of a convention and other instru-ments deemed appropriate and of the FinalAct of the Conference (continued)Texts proposed by the Drafting Commit-

tee (concluded)Final provisionsArticle 66 (Procedures for arbitration

and conciliation) andAnnex (Arbitration and conciliation

procedures established in applicationof article 66)

Adoption of the Convention on the Law ofTreaties between States and InternationalOrganizations or between InternationalOrganizations

8th plenary meetingThursday, 20 March 1986, at 3.45 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (concluded)

Adoption of a convention and other instru-ments deemed appropriate and of the FinalAct of the Conference (concluded)Statements in explanation of voteReport of the Committee of the Whole..Consideration of the draft Final Act and

annexed resolutionsDraft resolution proposed by Thailand ..Draft resolution submitted by Japan . . . .Draft resolution submitted by the United

NationsAdoption of the Final Act of the Confer-

enceSignature of the Final Act and of the Conven-

tion and other instrumentsClosure of the Conference

Page

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24

2424

25

25

29

30

303033

333333

35

35

3636

vi United Nations Conference on the Law of Treaties

Page

SUMMARY RECORDS OF THE MEETINGSOF THE COMMITTEE OF THE WHOLE

1st meetingWednesday, 19 February 1986,

at 5.25 p.m.Election of the Vice-Chairmen 39Election of the Rapporteur 39Organization of work 39Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 39Article 2 (Use of terms) 39

2nd meetingThursday, 20 February 1986, at 10.30 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued) 40Article 2 (Use of terms) (continued) 40

3rd meetingThursday, 20 February 1986, at 4 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued) 47Article 2 (Use of terms) (continued) . . . . 47

4th meetingFriday, 21 February 1986, at 3.25 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued) 50Article 2 (Use of terms) (continued) . . . . 50Article 3 (International agreements not

within the scope of the present arti-cles) 50

Page

5th meetingMonday, 24 February 1986, at 10.20 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)Article 3 (International agreements not

within the scope of the present articles)(continued)

Article 5 (Treaties constituting inter-national organizations and treatiesadopted within an international organ-ization)

6th meeting

Monday, 24 February 1986, at 3.25 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)Article 5 (Treaties constituting inter-

national organizations and treatiesadopted within an international organ-ization) (continued)

Article 6 (Capacity of international organ-izations to conclude treaties)

7th meetingTuesday, 25 February 1986, at 10.10 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)Article 7 (Full powers and powers)

8th meetingTuesday, 25 February 1986, at 3.10 p.m.Consideration of the question of the law of


55

55

56

61

61

61

6868

75

Contents vii

Article 7 (Full powers and powers) (con-tinued)

Article 9 (Adoption of the text)

9th meetingWednesday, 26 February 1986,

at 10.15 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)Article 9 (Adoption of the text) (contin-

ued)

10th meeting

Wednesday, 26 February 1986,at 3.20 p.m.

Consideration of the question of the law oftreaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)Article 7 (Full powers and powers) (con-

tinued)Article 9 (Adoption of the text) (contin-

ued)Article 11 (Means of expressing consent

to be bound by a treaty)

11th meetingThursday, 27 February 1986, at 11.25 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)Article 11 (Means of expressing consent to

be bound by a treaty) (continued)Article 19 (Formulation of reserva-

tions)

12th meetingThursday, 27 February 1986, at 3.25 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,

Page

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83

83

89

89

90

93

95

95

95

Page

39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued) 99Article 19 (Formulation of reservations)

(continued) 99Article 20 (Acceptance of and objection

to reservations) 104

13th meetingFriday, 28 February 1986, at 11.20 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued) 107Article 20 (Acceptance of and objection

to reservations) (continued) 107

14th meetingFriday, 28 February 1986, at 3.25 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued) 112Article 20 (Acceptance of and objection

to reservations) (continued) 112Article 7 (Full powers and powers) (con-

cluded) 114Article 27 (Internal law of States, rules of

international organizations and obser-vance of treaties) 115

Proposals for a new article 118

15th meetingMonday, 3 March 1986, at 11.10 a.m.Tribute to the memory of Mr. Olof Palme,

Prime Minister of Sweden 119Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued) 119Article 30 (Application of successive

treaties relating to the same subject-matter) 119

Article 38 (Rules in a treaty becomingbinding on third States or third organiza-tions through international custom).. . 122

vlii United Nations Conference on the Law of Treaties

Page

16th meetingMonday, 3 March 1986, at 3.30 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 {continued)Proposals for a new article {continued)..

124124

17th meetingTuesday, 4 March 1986, at 10.15 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 {continued) 126Article 45 (Loss of a right to invoke a

ground for invalidating, terminating,withdrawing from or suspending theoperation of a treaty) 126

Article 46 (Provisions of internal law ofa State and rules of an internationalorganization regarding competence toconclude treaties) 129

18th meetingTuesday, 4 March 1986, at 3.20 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 {continued) 134Article 46 (Provisions of internal law of a

State and rules of an international or-ganization regarding competence toconclude treaties) {concluded) 134

Article 56 (Denunciation of or withdrawalfrom a treaty containing no provisionregarding termination, denunciation orwithdrawal) 139

19th meetingWednesday, 5 March 1986, at 11.25 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with General

Assembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 {continued)Article 36 bis (Obligations and rights aris-

ing for States members of an inter-national organization from a treaty towhich it is a party)

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140

140

20th meetingWednesday, 5 March 1986, at 3.15 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 {continued) 145Article 36 bis (Obligations and rights aris-

ing for States members of an inter-national organization from a treaty towhich it is a party) {continued) 145

Article 61 (Supervening impossibility ofperformance) 152

21st meetingThursday, 6 March 1986, at 11.25 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 {continued) 153Article 62 (Fundamental change of cir-

cumstances) 153

22nd meetingThursday, 6 March 1986, at 3.20 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 {continued) 158Article 62 (Fundamental change of cir-

cumstances) {concluded) 158Article 65 (Procedure to be followed with

respect to invalidity, termination, with-drawal from or suspension of the oper-ation of a treaty) 160

Organization of work 163

Contents ix

Page

23rd meetingFriday, 7 March 1986, at 10.50 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)Article 73 (Cases of succession of States,

responsibility of a State or of an inter-national organization, outbreak of hos-tilities, termination of the existence ofan organization and termination of par-ticipation by a State in the membershipof an organization)

Article 75 (Case of an aggressor State)..Article 77 (Functions of depositaries) . . .

24th meetingMonday, 10 March 1986, at 11.25 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)Article 66 (Procedures for arbitration and

conciliation) andAnnex (Arbitration and conciliation pro-

cedures established in application ofarticle 66)


treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)Article 36 bis (Obligations and rights aris-

ing for States members of an inter-national organization from a treaty towhich it is a party) (continued)


treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,

164

164166166

167

167

172

172

39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)Article 66 (Procedures for arbitration and


cedures established in application ofarticle 66) (continued)

27th meetingWednesday, 12 March 1986, at 4.05 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)Statement by the President of the Con-

ference on articles 2,5,6,11,19,20,27,35 to 37, 39 and 65

Article 2 (Use of terms) (concluded)Article 5 (Treaties constituting inter-

national organizations and treatiesadopted within an international organ-izations) (concluded)

Article 11 (Means of expressing consentto be bound by a treaty) (paragraph 2)(concluded)

Article 19 (Formulation of reservations)(paragraph 2) (concluded)

Article 20 (Acceptance of and objectionto reservations) (concluded)

Article 27 (Internal law of States, rules ofinternational organizations and obser-vance of treaties) (paragraph 2) (con-cluded)

Proposed deletion of the word "relevant"in articles 5, 6, 35 to 37, 39 and 65

Article 66 (Procedures for arbitration andconciliation) and

Annex (Arbitration and conciliation pro-cedures established in application ofarticle 66) (continued)

28th meetingThursday, 13 March 1986, at 3.30 p.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued)Statement by the President of the Con-

ference on articles 9, 36 bis, 73 and newarticle

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186

186187

187

187

187

187

194


Page

Article 9 (Adoption of the text) (con-cluded)

Article 36 bis (Obligations and rights aris-ing for States members of an inter-national organization from a treaty towhich it is a party) (concluded)

Article 73 (Cases of succession of States,responsibility of a State or of an inter-national organization, outbreak of hos-tilities, termination of the existence ofan organization and termination of par-ticipation by a State in the membershipof an organization) (concluded)

Proposals for a new article (concluded)Article 66 (Procedures for arbitration and


cedures established in application ofarticle 66) (continued)

194

195


treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (continued) 203Article 3 (International agreements not

within the scope of the present arti-cles) (concluded) 203

Preamble 203

Article 66 (Procedures for arbitration and "conciliation) and

Annex (Arbitration and conciliation pro-cedures established in application ofarticle 66) (continued)

Statement by the President of the Con-ference

Article 80 (Registration and publication oftreaties)

30th meetingWednesday, 19 March 1986, at 10.25 a.m.Consideration of the question of the law of

treaties between States and internationalorganizations or between international or-ganizations, in accordance with GeneralAssembly resolutions 37/112 of 16 Decem-ber 1982, 38/139 of 19 December 1983,39/86 of 13 December 1984 and 40/76 of11 December 1985 (concluded)Article 66 (Procedures for arbitration and


cedures established in application ofarticle 66) (concluded)

Article 81 (Signature)Article 82 (Ratification or act of formal

confirmation)Article 83 (Accession)Article 84 (Entry into force)Article 85 (Authentic texts)

Adoption of the Report of the Committee ofthe Whole

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210

GENERAL ASSEMBLY RESOLUTIONS RELATIVE TO THE CONFERENCE

37/112. Convention on the Law of Treaties betweenStates and International Organizations or be-tween International Organizations

The General Assembly,

Recalling that, following consideration of a recom-mendation adopted by the United Nations Conferenceon the Law of Treaties, held at Vienna in 1968 and 1969,the General Assembly, by its resolution 2501 (XXIV) of12 November 1969, recommended that the Interna-tional Law Commission should study, in consultationwith the principal international organizations, as it mayconsider appropriate in accordance with its practice,the question of treaties concluded between States andinternational organizations or between two or moreinternational organizations, as an important question,

Noting that, pursuant to General Assembly resolu-tion 36/114 of 10 December 1981, the International LawCommission, taking into account the written commentsof Governments and of principal international organiza-tions as well as views expressed in debates in the As-sembly, completed at its thirty-fourth session the sec-ond reading of the draft articles on the said question,'

Noting that, as reflected in paragraph 57 of the reportof the International Law Commission on the work of itsthirty-fourth session, the Commission decided to rec-ommend that the General Assembly should convoke aconference to study the draft articles on the law oftreaties between States and international organizationsor between international organizations prepared by theCommission and to conclude a convention.

Recalling the adoption of the Vienna Convention onthe Law of Treaties2 of 23 May 1969, the Vienna Con-vention on the Representation of States in Their Rela-tions with International Organizations of a UniversalCharacter3 of 14 March 1975 and the Vienna Conven-tion on Succession of States in respect of Treaties4 of23 August 1978,

Mindful of Article 13, paragraph 1 a, of the Charter ofthe United Nations, which provides that the General

1 Official Records of the General Assembly, Thirty-seventhSession, Supplement No. 10 (A/37/10) chap. II, sect. D.

2 Official Records of the United Nations Conference on the Law ofTreaties (United Nations publication, Sales No. E.70.V.5), p. 287.

' Official Records of the United Nations Conference on the Rep-resentation of States in Their Relations with International Organiza-tions, vol. II (United Nations publication, Sales No. E.75.V.12),p. 207.

4 Official Records of the United Nations Conference on Succes-sion of States in Respect of Treaties, vol. Ill (United Nationspublication, Sales No. E.79.V.10), p. 185.

Assembly shall initiate studies and make recommenda-tions for the purpose of encouraging the progressivedevelopment of international law and its codification,

Believing that the successful codification and pro-gressive development of the rules of international lawgoverning treaties between States and international or-ganizations or between international organizationswould contribute to the development of friendly rela-tions and co-operation among States, irrespective oftheir differing constitutional and social systems, andwould assist in promoting and implementing the pur-poses and principles set forth in Articles 1 and 2 of theCharter,

1. Expresses its appreciation to the InternationalLaw Commission for its valuable work on the law oftreaties between States and international organizationsor between international organizations and to the Spe-cial Rapporteur on the topic for his contribution to thiswork;

2. Invites States to submit, not later than 1 July1983, their written comments and observations on thefinal draft articles on the law of treaties between Statesand international organizations or between interna-tional organizations, prepared by the International LawCommission, as well as on the questions referred to inparagraph 60 of the report of the Commission on thework of its thirty-fourth session;

3. Invites also the principal international intergov-ernmental organizations to submit within the same pe-riod their written comments and observations on thesubject;

4. Requests the Secretary-General to circulate suchcomments so as to facilitate the discussion on the sub-ject at the thirty-eighth session of the General As-sembly;

5. Decides that an international convention shall beconcluded on the basis of the draft articles adopted bythe International Law Commission;

6. Takes note of the recommendation of the Inter-national Law Commission on the subject and agrees todecide at its thirty-eighth session upon the appropriateforum for the adoption of the convention in the light ofthe comments received in accordance with the presentresolution;

7. Decides to include in the provisional agenda ofits thirty-eighth session an item entitled "Conventionon the Law of Treaties between States and Interna-tiona] Organizations or between International Organ-izations".

107th plenary meeting16 December 1982

xi

xii United Nations Conference on the Law of Treaties

38/139. United Nations Conference on the Law ofTreaties between States and International Or-ganizations or between International Organ-izations

The General Assembly,Recalling its resolution 37/112 of 16 December 1982,

by which it decided that an international conventionshould be concluded on the basis of the draft articles onthe law of treaties between States and internationalorganizations or between international organizations,adopted by the International Law Commission at itsthirty-fourth session,

Recalling further that, by its resolutions 37/112, itagreed to decide at its thirty-eighth session upon theappropriate forum for the adoption of the convention inthe light of the comments received in accordance withthat resolution,5

Having received the report of the Secretary-Generalwhich contains the comments and observations sub-mitted by a number of States and principal internationalintergovernmental organizations, in accordance withGenera] Assembly resolution 37/112, and having fur-ther received the statement adopted by the Adminis-trative Committee on Co-ordination,6

1. Decides that the appropriate forum for the finalconsideration of the draft articles on the law of treatiesbetween States and international organizations or be-tween international organizations, adopted by the In-ternational Law Commission at its thirty-fourth ses-sion, shall be a conference of plenipotentiaries to beconvened not earlier than 1985;

2. Agrees to decide at its thirty-ninth session uponthe question of the date and place for the convening ofthe United Nations Conference on the Law of Treatiesbetween States and International Organizations or be-tween International Organizations, as well as upon thequestion of participation in the Conference;

3. Invites States that have not already done so tosubmit, not later than 1 July 1984, their written com-ments and observations on the final draft articles on thelaw of treaties between States and international organ-izations or between international organizations pre-pared by the International Law Commission, as well ason the questions referred to in paragraph 60 of thereport of the Commission on the work of its thirty-fourth session;

4. Invites also the principal international intergov-ernmental organizations that have not already done soto submit, within the same period, their written com-ments and observations on the subject;

5. Requests the Secretary-General to circulate suchcomments so as to facilitate the discussion on the sub-ject at the thirty-ninth session of the General Assembly;

6. Appeals to potential participants in the Confer-ence to undertake consultations on the draft articlesconcerned and other related questions prior to thethirty-ninth session of the General Assembly, in order

to facilitate the successful conclusion of the work of theConference;

7. Decides to include in the provisional agenda ofits thirty-ninth session an item entitled "United Na-tions Conference on the Law of Treaties betweenStates and International Organizations or between In-ternational Organizations".

101st plenary meeting19 December 1983

39/86. United Nations Conference on the Law ofTreaties between States and International Or-ganizations or between International Organiza-tions


by which it decided that an international conventionshould be concluded on the basis of the draft articles onthe law of treaties between States and internationalorganizations or between international organizations,adopted by the International Law Commission at itsthirty-fourth session,1

Recalling also its resolution 38/139 of 19 December1983, by which it decided that the appropriate forum forthe final consideration of the draft articles should bea conference of plenipotentiaries to be convened notearlier than 1985 and agreed to decide at its thirty-ninthsession upon the question of the date and place for theconvening of the United Nations Conference on theLaw of Treaties between States and International Or-ganizations or between International Organizations, aswell as upon the question of participation in the Con-ference,

Having received the report of the Secretary-General,7 which contains comments and observationssubmitted by States and principal international inter-governmental organizations, in accordance with Gen-eral Assembly resolution 38/139,

Recognizing the importance of achieving a success-ful conclusion of the work of the Conference throughthe promotion of general agreement,

Bearing in mind the relationship between the law oftreaties between States and the subject-matter to bedealt with by the Conference,

Noting with appreciation that an invitation has beenextended by the Government of Austria to hold theConference at Vienna,

1. Decides that the United Nations Conference onthe Law of Treaties between States and InternationalOrganizations or between International Organizationsshall be held at Vienna from 18 February to 21 March1986;

2. Requests the Secretary-General to invite:(a) All States to participate in the Conference;(b) Namibia, represented by the United Nations

Council for Namibia, to participate in the Conference,' A/38/145 and Corr.l and Add.l.' A/C.6/38/4, annex. 1 A/39/491.

General Assembly resolutions relative to the Conference xlll

in accordance with paragraph 6 of General Assemblyresolution 37/233 C of 20 December 1982;

(c) Representatives of organizations that have re-ceived a standing invitation from the General Assemblyto participate in the sessions and the work of all inter-national conferences convened under its auspices in thecapacity of observers to participate in the Conferencein that capacity, in accordance with General Assem-bly resolutions 3237 (XXIX) of 22 November 1974 and31/152 of 20 December 1976;

(d) Representatives of the national liberation move-ments recognized in its region by the Organization ofAfrican Unity to participate in the Conference as ob-servers, in accordance with General Assembly resolu-tion 3280 (XXIX) of 10 December 1974;

(e) Representatives of international intergovern-mental organizations that have traditionally been in-vited to participate as observers at legal codificationconferences convened under the auspices of the UnitedNations to participate in the Conference in a capacity tobe considered during the consultations referred to inparagraph 8 below and to be decided upon by the Gen-eral Assembly at its fortieth session;

3. Invites the participants referred to in paragraph 2above to include as far as possible among their rep-resentatives experts competent in the field to be con-sidered;

4. Decides that the languages of the Conferenceshall be the official and working languages of the Gen-eral Assembly, its committees and its sub-committees;

5. Refers to the Conference, as the basic proposalfor its consideration, the draft articles on the law oftreaties between States and international organizationsor between international organizations adopted bythe International Law Commission at its thirty-fourthsession;

6. Requests the Secretary-General to submit to theConference all relevant documentation and recommen-dations relating to the rules of procedure and methodsof work, taking into account the importance of pro-moting general agreement on the final results of thework of the Conference, and to arrange for the neces-sary staff, facilities and services which it will require,including the provision of summary records;

7. Also requests the Secretary-General to arrangefor the presence at the Conference, as an expert, of theInternational Law Commission's Special Rapporteuron the question of treaties concluded between Statesand international organizations or between two or moreinternational organizations;

8. Appeals to participants in the Conference to or-ganize consultations, primarily on the organization andmethods of work of the Conference, including rules ofprocedure, and on major issues of substance, includingfinal clauses and settlement of disputes, prior to theconvening of the Conference in order to facilitate asuccessful conclusion of its work through the promo-tion of general agreement;

9. Decides to include in the provisional agenda ofits fortieth session an item entitled "Preparation for theUnited Nations Conference on the Law of Treaties

between States and International Organizations or be-tween International Organizations".


40/76. Preparation for the United Nations Conferenceon the Law of Treaties between States and Inter-national Organizations or between InternationalOrganizations


by which it decided that an international conventionshould be concluded on the basis of the draft articles onthe law of treaties between States and internationalorganizations or between international organizationsadopted by the International Law Commission at itsthirty-fourth session,1

Recalling also its resolution 39/86 of 13 December1984, by which it decided that the United Nations Con-ference on the Law of Treaties between States andInternational Organizations or between InternationalOrganizations should be held at Vienna from 18 Feb-ruary to 21 March 1986, and referred to the Conference,as the basic proposal for its consideration, the draftarticles on the law of treaties between States and inter-national organizations or between international organ-izations adopted by the International Law Commissionat its thirty-fourth session,

Recalling further its appeal, in paragraph 8 of resolu-tion 39/86, to participants in the Conference to organizeconsultations, primarily on the organization and meth-ods of work of the Conference, including rules of pro-cedure, and on major issues of substance, includingfinal clauses and settlement of disputes, prior to theconvening of the Conference in order to facilitate asuccessful conclusion of its work through the promo-tion of general agreement,

Reiterating the importance of enhancing the processof codification and progressive development of inter-national law at a universal level,

1. Considers that the informal consultations heldpursuant to paragraph 8 of resolution 39/86 have provedto be useful in enabling thorough preparation for suc-cessful conduct of the United Nations Conference onthe Law of Treaties between States and InternationalOrganizations or between International Organizations;

2. Expresses its satisfaction with the successfuloutcome of the work of the informal consultations con-ducted by the co-Chairmen;

3. Decides that, in addition to the organization re-ferred to in paragraph 2 (e) of resolution 39/86, theUnited Nations should participate in the Conference;

4. Decides to transmit to the Conference and torecommend that it adopt the draft rules of procedure forthe Conference, worked out during the informal consul-tations and annexed to the present resolution as an-nex I, taking into account that those draft rules weredrafted for the specific use of that Conference in view ofits particular nature and the subject-matter to be con-sidered by it;

xlv United Nations Conference on the Law of Treaties

5. Decides further to transmit to the Conference forits consideration and action, as appropriate, a list ofdraft articles of the basic proposal, for which substan-tive consideration is deemed necessary and which areannexed to the present resolution as annex II;

6. Refers to the Conference for its consideration thedraft final clauses presented by the co-Chairmen onwhich an exchange of views was held and which areannexed to the present resolution as annex III.


ANNEX I

United Nations Conference on the Law of Treaties between States andInternational Organizations or between International Organizations(Vienna, 18 February-21 March 1986)

Draft rules of procedure

[For the text, see A/CONF. 129/7 below.]

ANNEX II

List of draft articles of the basic proposal, for whichsubstantive consideration Is deemed necessary*

1. Article 2' "Use of terms"

2. Article 3 "International agreements not within the scope ofthe present articles"

3. Article 5 "Treaties constituting international organizationsand treaties adopted within an international organization"

4. Article 6 "Capacity of international organizations to con-clude treaties"

5. Article 7 "Full powers and powers"

6. Article 9 "Adoption of the text"

—paragraph 2

7. Article II "Means of expressing consent to be bound by atreaty"

—paragraph 2 (arts. 14.3, 16, 18 and 19.2 are closely related tothis paragraph)

8. Article 19 "Formulation of reservations"

9. Article 20 "Acceptance of and objection to reservations"

10. Article 27 "Internal law of States, rules of international or-ganizations and observance of treaties"

11. Article 30 "Application of successive treaties relating to thesame subject-matter"

—paragraph 6

12. Article 36 bis "Obligations and rights arising for States mem-bers of an international organization from a treaty to which it isa party"

13. Article 38 "Rules in a treaty becoming binding on thirdStates or third organizations through international custom"

14. Article 45 "Loss of a right to invoke a ground for invali-dating, terminating, withdrawing from or suspending theoperation of a treaty"

' It is understood that if certain changes to the articles listed wereapproved by the Conference, consequential changes might have tobe introduced in other draft articles.

* It is noted that since draft article 2 sets out definitions, itsprovisions should not be considered separately but in conjunctionwith the substantive consideration of other articles to which thosedefinitions are closely related.

15. Article 46 "Provisions of internal law of a State and rules ofan international organization regarding competence to con-clude treaties"

—paragraph 2

—paragraph 3

—paragraph 4

16. Article 56 "Denunciation of or withdrawal from a treaty con-taining no provision regarding termination, denunciation orwithdrawal"

17. Article 61 "Supervening impossibility of performance"

18. Article 62 "Fundamental change of circumstances"

19. Article 65 "Procedure to be followed with respect to inva-lidity, termination, withdrawal from or suspensions of theoperation of a treaty"

—paragraph 3

20. Article 66 "Procedures for arbitration and conciliation"

21. Article 73 "Cases of succession of States, responsibility of aState or of an international organization, outbreak of hostil-ities, termination of the existence of an organization and ter-mination of participation by a State in the membership of anorganization"

22. Article 75 "Case of an aggressor State"

23. Article 77 "Functions of depositaries"

24. Annex "Arbitration and conciliation procedures establishedin application of article 66"

ANNEX III

Draft final clauses

(Based on those of the 1969 Vienna Convention on theLaw or Treaties2)

FINAL PROVISIONS

Article 81

SIGNATURE

The present Convention shall be open for signature . . . (date,month, year) at the Federal Ministry for Foreign Affairs of the Re-public of Austria, and subsequently, until . . . (date, month, year),at the United Nations Headquarters, New York by:

(a) All States;

(b) Namibia, represented by the United Nations Council forNamibia;

(c) International organizations invited to participate in theUnited Nations Conference on the Law of Treaties between Statesand International Organizations or between International Organi-zations.

Article 82

RATIFICATION OR ACT OF FORMAL CONFIRMATION

The present Convention is subject to ratification by States and byNamibia, represented by the United Nations Council for Namibia,and to acts of formal confirmation by international organizations.The instruments of ratification and those relating to acts of formalconfirmation shall be deposited with the Secretary-General of theUnited Nations.

Article 83

ACCESSION

I. The present Convention shall remain open for accession byany State, by Namibia, represented by the United Nations Councilfor Namibia, and by any international organization which has thecapacity to conclude treaties.

General Assembly resolutions relative to the Conference

2. An instrument of accession of an international organizationshall contain a declaration that it has the capacity to concludetreaties.

3. The instruments of accession shall be deposited with theSecretary-General of the United Nations.

Article 84

ENTRY INTO FORCE

1. The present Convention shall enter into force on the thirtiethday following the date of deposit of the . . . instrument of ratificationor accession by States or by Namibia, represented by the UnitedNations Council for Namibia.

2. For each State or for Namibia, represented by the UnitedNations Council for Namibia, ratifying or acceding to the Conven-tion after the condition specified in paragraph 1 has been fulfilled,the Convention shall enter into force on the thirtieth day after de-posit by such State or by Namibia of its instrument of ratification oraccession.

3. For each international organization depositing an instrumentrelating to an act of formal confirmation or an instrument of acces-sion, the Convention shall enter into force on the thirtieth day aftersuch deposit, provided that it shall not so enter into force before theConvention enters into force pursuant to paragraph 1.

Article 85

AUTHENTIC TEXTS

The original of the present Convention, of which the Arabic,Chinese, English, French, Russian and Spanish texts are equallyauthentic, shall be deposited with the Secretary-General of theUnited Nations.

IN WITNESS WHEREOF the undersigned Plenipotentiaries,being duly authorized by their respective Governments, and dulyauthorized representatives of the United Nations Council for Na-mibia and of international organizations have signed the presentConvention.

DONE AT VIENNA this . . . day o f . . . one thousand nine hun-dred and eighty-six.

OFFICERS OF THE CONFERENCE AND ITS COMMITTEES

President of the Conference

Mr. Karl Zemanek (Austria).

Vice-Presidents of the Conference

The representatives of the following States: Bulgaria, Chile, Cote d'lvoire,France, German Democratic Republic, Greece, Guatemala, India, Japan, Kuwait,Lebanon, Netherlands, Peru, Poland, Senegal, Sudan, Switzerland, Tunisia,United Kingdom of Great Britain and Northern Ireland, United States ofAmerica, Uruguay, Zimbabwe.

General Committee of the Conference

President: The President of the Conference.Members: The President and the Vice-Presidents of the Conference, the

Chairman of the Committee of the Whole and the Chairman of the DraftingCommittee.

Committee of the Whole

Chairman: Mr. Mohamed El-Taher Shash (Egypt).Vice-Chairmen: Mr. Geraldo Eulalio do Nascimento e Silva (Brazil);

Mr. ZdenSk Pisk (Czechoslovakia).Rapporteur: Mrs. Kuljit Thakore (India).

Drafting Committee

Chairman: Mr. Awn Al-Khasawneh (Jordan).Members: Algeria, Argentina, China, France, Italy, Japan, Jordan, Morocco,

Nigeria, Romania, Spain, Union of Soviet Socialist Republics, United Kingdom ofGreat Britain and Northern Ireland, United States of America, Venezuela.

Credentials Committee

Chairman: Mr. Jean-Paul Hubert (Canada).Members: Brazil, Canada, China, Ecuador, Gabon, Thailand, Union of

Soviet Socialist Republics, United States of America and Zambia.

Expert Consultant

Mr. Paul Reuter (Special Rapporteur of the International Law Commissionon the question of the law of treaties between States and international organ-izations or between international organizations).

xvi

SECRETARIAT OF THE CONFERENCE

Mr. Carl-August Fleischhauer, Under-Secretary-General, Legal Counsel(representing the Secretary-General of the United Nations).

Mr. Georgiy Kalinkin, Director of the Codification Division of the Office ofLegal Affairs (Executive Secretary of the Conference).

Mr. John de Saran (Assistant Executive Secretary and Secretary of theCredentials Committee).

Miss Jacqueline Dauchy (Secretary of the Committee of the Whole).Mr. Larry D. Johnson (Secretary of the Drafting Committee).Mr. Igor Fominov (Assistant Secretary of the Conference).Mr. Mpazi Sinjela (Assistant Secretary of the Conference).Mr. Ricardo Gosalbo-Bono (Assistant Secretary of the Conference).

xvU

AGENDA*

[Document A/CONF. 129/1]

1. Opening of the Conference.2. Election of the President.3. Adoption of the agenda.4. Adoption of the rules of procedure.5. Election of Vice-Presidents.6. Election of the Chairman of the Committee of the Whole.7. Election of the Chairman of the Drafting Committee.8. Appointment of the Credentials Committee.9. Appointment of other members of the Drafting Committee.

10. Organization of work.11. Consideration of the question of the law of treaties between States and

international organizations or between international organizations, in ac-cordance with General Assembly resolutions 37/112 of 16 December 1982,38/139 of 19 December 1983, 39/86 of 13 December 1984 and 40/76 of 11 De-cember 1985.

12. Adoption of a convention and other instruments deemed appropriate and ofthe Final Act of the Conference.

13. Signature of the Final Act and of the Convention and other instruments.

* Adopted by the Conference at its 1st plenary meeting.

xviU

RULES OF PROCEDURE*

[DOCUMENT A/CONF. 129/7]

CHAPTER I

Representation and credentials

Rule 1. Composition of delegations

The delegation of each State, Namibia, representedby the United Nations Council for Namibia and eachorganization referred to in rule 60 participating in theConference shall consist of a head of delegation andsuch other representatives, alternate representativesand advisers as may be required.

Rule 2. Alternates and advisers

The head of delegation may designate an alternaterepresentative or an adviser to act as a representative.

Rule 3. Credentials, corresponding documents andnotifications of delegations

1. The credentials of representatives of States, thecorresponding documents of the organizations men-tioned in rule 60 as well as appropriate notifications,containing the names and titles of the members of eachdelegation referred to in rule 1 authorizing them toparticipate in the Conference shall be submitted early tothe Executive Secretary of the Conference, and if pos-sible not later than 24 hours after the opening of theConference. Any subsequent change in the composi-tion of delegations shall also be submitted to the Exec-utive Secretary.

2. The credentials of representatives of States shallbe issued by the head of State or Government or by theminister for foreign affairs.

3. The corresponding documents of organizationsreferred to in rule 60 shall be submitted to the ExecutiveSecretary of the Conference together with a statementon behalf of the organization confirming that such doc-ument is issued in accordance with the internal rulesand practices of the organization concerned.

Rule 4. Credentials Committee

A Credentials Committee shall be appointed at thebeginning of the Conference. It shall consist of ninemembers from among the representatives of participat-ing States who shall be appointed by the Conference onthe proposal of the President. It shall examine the cre-dentials of representatives of States and report to theConference without delay. The Credentials Committeeshall also verify the corresponding documents sub-

* Adopted by the Conference at its 1st plenary meeting.

mitted by representatives of the organizations referredto in rule 60 in accordance with rule 3 and report to theConference on those documents.

Rule 5. Provisional participationin the Conference

Pending a decision of the Conference on their creden-tials, representatives of States shall be entitled to par-ticipate provisionally in the Conference. Representa-tives of the organizations referred to in rule 60 shalllikewise be entitled to participate provisionally in theConference pending its decision on whether the doc-uments submitted by them are in conformity with therequirements provided in rule 3.

CHAPTER II

Officers

Rule 6. Elections

The Conference shall elect from among the represen-tatives of participating States the following officers: aPresident and twenty-two Vice-Presidents, as well asthe Chairman of the Committee of the Whole providedfor in rule 47 and the Chairman of the Drafting Com-mittee provided for in rule 48. These officers shall beelected on the basis of ensuring the representativecharacter of the General Committee. The Conferencemay also elect such other officers as it deems necessaryfor the performance of its functions.

Rule 7. General powers of the President

1. In addition to exercising the powers conferredupon him elsewhere by these rules, the President shallpreside at the plenary meetings of the Conference, de-clare the opening and closing of each meeting, direct thediscussion, ensure observance of these rules, accordthe right to speak, promote the achievement of generalagreement, put questions to the vote and announcedecisions reached by general agreement or taken byvote. The President shall rule on points of order and,subject to these rules, shall have complete control ofthe proceedings and over the maintenance of orderthereat. The President may propose to the Conferencethe closure of the list of speakers, a limitation on thetime to be allowed to speakers and on the number oftimes each representative may speak on a question, theadjournment or the closure of the debate and the sus-pension or the adjournment of a meeting.

2. The President, in the exercise of his functions,remains under the authority of the Conference.

xix


Rule 8. Acting President

1. If the President finds it necessary to be absentfrom a meeting or any part thereof, he shall designate aVice-President to take his place.

2. A Vice-President acting as President shall havethe powers and duties of the President.

Rule 9. Replacement of the President

If the President is unable to perform his functions, anew President shall be elected.

Rule 10. The President shall not vote

The President, or a Vice-President acting as Pres-ident, shall not vote in the Conference, but may desig-nate another member of his delegation to vote in hisplace.

CHAPTER III

General Committee

Rule 11. Composition

There shall be a General Committee consisting oftwenty-five members which shall comprise the Pres-ident and Vice-Presidents of the Conference, the Chair-man of the Committee of the Whole and the Chairmanof the Drafting Committee. The President of the Con-ference, or in his absence one of the Vice-Presidentsdesignated by him, shall serve as Chairman of the Gen-eral Committee.

Rule 12. Substitute members

If the President or a Vice-President of the Conferenceis to be absent during a meeting of the General Commit-tee, he may designate a member of his delegation to sitand vote in the Committee. In case of absence, theChairman of the Committee of the Whole shall desig-nate the Vice-Chairman of that Committee as his sub-stitute and the Chairman of the Drafting Committeeshall designate a member of the Drafting Committee.When serving on the General Committee, the Vice-Chairman of the Committee of the Whole or member ofthe Drafting Committee shall not have the right to voteif he is of the same delegation as another member of theGeneral Committee.

Rule 13. Functions

The General Committee shall assist the President inthe general conduct of the business of the Conferenceand, subject to the decisions of the Conference, shallensure the co-ordination of its work. It shall also exer-cise powers conferred upon it by rule 63.

CHAPTER IV

Secretariat

Rule 14. Duties of the Secretary-General

1. The Secretary-General of the United Nationsshall be the Secretary-General of the Conference. He,

or his representative, shall act in that capacity in allmeetings of the Conference and its committees.

2. The Secretary-General shall appoint an Exec-utive Secretary of the Conference and shall provideand direct the staff required by the Conference and itscommittees.

Rule 15. Duties of the secretariat

The secretariat of the Conference shall in accordancewith these rules:

(a) Interpret speeches made at meetings;(b) Receive, translate, reproduce and distribute the

documents of the Conference;(c) Publish and circulate the official documents of

the Conference;(d) Prepare and circulate records of public

meetings;(e) Make and arrange for the keeping of sound re-

cording of meetings;(/) Arrange for the custody and preservation of the

documents of the Conference in the archives of theUnited Nations;

(g) Generally perform all other work that the Con-ference may require.

Rule 16. Statements by the secretariat

In the exercise of the duties referred to in rules 14and 15, the Secretary-General or any other member ofthe staff designated for that purpose may, at any time,make either oral or written statements concerning anyquestion under consideration.

CHAPTER V

Conduct of business

Rule 17. Quorum

The President may declare a meeting open and permitthe debate to proceed when representatives of at leastone third of the States participating in the Conferenceare present. The presence of representatives of twothirds of the States so participating shall be required forany decision to be taken.

Rule 18. Speeches

1. No one may address the Conference withouthaving previously obtained the permission of the Pres-ident. Subject to rules 19, 20 and 23 to 25, the Presidentshall call upon speakers in the order in which theysignify their desire to speak. The secretariat shall be incharge of drawing up a list of such speakers. The Pres-ident may call a speaker to order if his remarks are notrelevant to the subject under discussion.

2. The Conference may limit the time allowed toeach speaker and the number of times each represen-tative may speak on a question. Before a decision istaken, two representatives may speak in favour of, andtwo against, a proposal to set such limits. When the

Rules of procedure nd

debate is limited and a speaker exceeds the allottedtime, the President shall call him to order without delay.

Rule 19. Precedence

The chairman or rapporteur of a committee, or therepresentative of a sub-committee or working group,may be accorded precedence for the purpose ofexplaining the conclusions arrived at by his committee,sub-committee or working group.

Rule 20. Points of order

During the discussion of any matter, a representativeof a participating State may at any time raise a pointof order, which shall be decided immediately by thePresident in accordance with these rules. A represen-tative of a participating State may appeal against theruling of the President. The appeal shall be put to thevote immediately, and the President's ruling shall standunless overruled by a majority of such representativespresent and voting. A representative may not, in raisinga point of order, speak on the substance of the matterunder discussion.

Rule 21. Closing of the list of speakers

During the course of a debate the President mayannounce the list of speakers and, with the consent ofthe Conference, declare the list closed.

Rule 22. Right of reply

1. Notwithstanding rule 21, the President shall ac-cord the right of reply to any delegation that requests it.

2. Replies made pursuant to the present rule shallbe made at the end of the last meeting of the day, or atthe conclusion of the consideration of the relevant issueif that is sooner.

3. The number of interventions in exercise of theright of reply for any delegation at a given meetingshould be limited to two per issue.

4. The first intervention in the exercise of the rightof reply, for any delegation on any issue at a givenmeeting, shall be limited to five minutes and the secondintervention shall be limited to three minutes.

Rule 23. Adjournment of debate

During the discussion of any matter, a representativemay move the adjournment of the debate on the ques-tion under discussion. In addition to the proposer of themotion, two representatives may speak in favour of,and two against, the adjournment, after which the mo-tion shall be put immediately to the vote.

Rule 24. Closure of debate

A representative may at any time move the closure ofthe debate on the question under discussion, whether ornot any other representative has signified his wish tospeak. Permission to speak on the closure of the debateshall be accorded only to two speakers opposing theclosure, after which the motion shall be put imme-diately to the vote.

Rule 25. Suspension or adjournmentof the meeting

During the discussion of any matter, a representativemay move the suspension or the adjournment of themeeting. Such motions shall not be debated, but shallbe put immediately to the vote.

Rule 26. Order of motions

Subject to rule 20, the motions indicated below shallhave precedence in the following order over all pro-posals or other motions before the meeting:

(a) To suspend the meeting;(b) To adjourn the meeting;(c) To adjourn the debate on the question under

discussion;(d) To close the debate on the question under dis-

cussion.

Rule 27. Basic proposal

The draft articles on the law of treaties betweenStates and international organizations or between inter-national organizations, adopted by the InternationalLaw Commission, shall constitute the basic proposalfor consideration by the Conference.

Rule 28. Articles of the basic proposal requiringsubstantive consideration

1. The Conference shall decide which of the draftarticles of the basic proposal referred to in rule 27require substantive consideration. These draft articlesshall be referred to the Committee of the Whole and allother draft articles shall be referred directly to theDrafting Committee.

2. After such a decision is taken by the Conference:(a) The Committee of the Whole may decide, at the

request of a representative, to give substantive con-sideration to a particular article of the basic proposalthat was referred directly to the Drafting Committee;

(b) The Drafting Committee itself may decide,where necessary, to transfer particular draft articles ofthe basic proposal to the Committee of the Whole forsubstantive consideration.

Rule 29. Other proposals andamendments

Other proposals and amendments thereto shall nor-mally be submitted in writing to the Executive Sec-retary of the Conference, who shall circulate copies toall delegations. As a general rule, no proposal shall beconsidered at any meeting of the Conference unlesscopies of it have been circulated to all delegations notlater than the day preceding the meeting. The Presidentmay, however, permit the consideration of amend-ments, even though these amendments have not beencirculated or have only been circulated on the sameday.

xxli United Nations Conference on the Law of Treaties

Rule 30. Decisions on competence

Subject to rule 20, any motion calling for a decisionon the competence of the Conference to discuss anymatter or to adopt a proposal submitted to it shall be putto the vote before the matter is discussed or a decision istaken as to the proposal in question.

Rule 31. Withdrawal of proposalsand motions

A proposal may be withdrawn by its proposer at anytime before voting on it has commenced, provided thatit has not been amended. A proposal or a motion thathas thus been withdrawn may be reintroduced.

Rule 32. Reconsideration of proposals

When a proposal has been adopted or rejected it maynot be reconsidered unless the Conference, by a two-thirds majority of the representatives of participatingStates present and voting, so decides. Permission tospeak on the motion to reconsider shall be accordedonly to two speakers from representatives of partici-pating States opposing the motion, after which it shallbe put immediately to the vote.

Rule 33. Invitations to technical advisers

The Conference may invite to one or more of itsmeetings any person whose technical advice it mayconsider useful for its work.

CHAPTER VI

Decision-taking

Rule 34. Decision-taking rights

Decision-taking rights shall be exercised onlyby States participating in the Conference. In decision-taking by vote each State represented at the Conferenceshall have one vote.

Rule 35. Majority required

1. Decisions of the Conference on all matters ofsubstance shall be taken by a two-thirds majority of therepresentatives present and voting.

2. Decisions of the Conference on matters of pro-cedure shall be taken by a majority of the represen-tatives present and voting.

3. If the question arises whether a matter is one ofprocedure or of substance, the President shall rule onthe question. An appeal against this ruling shall be putto the vote immediately and the President's ruling shallstand unless overruled by a majority of the represen-tatives present and voting.

Rule 36. Meaning of the phrase "representativespresent and voting"

For the purposes of these rules, the phrase "repre-sentatives present and voting" means representativespresent and casting an affirmative or negative vote.

Representatives who abstain from voting shall be con-sidered as not voting.

Rule 37. Method of voting

Except as provided in rule 43, the Conference shallnormally vote by show of hands or by standing, but anyrepresentative may request a roll-call. The roll-callshall be taken in the English alphabetical order of thenames of the States participating in the Conference,beginning with the delegation whose name is drawn bylot by the President.

Rule 38. Conduct during voting

The President shall announce the commencement ofvoting, after which no representative shall be permittedto intervene until the result of the vote has been an-nounced, except on a point of order in connection withthe process of voting.

Rule 39. Explanation of vote

Representatives may make brief statements con-sisting solely of explanation of their votes, before thevoting has commenced or after the voting has beencompleted. The representative of a State sponsoring aproposal or motion shall not speak in explanation ofvote thereon, except if it has been amended.

Rule 40. Division of proposals

A representative of a participating State may movethat parts of a proposal shall be voted on separately. Ifobjection is made to the request for division, the motionfor division shall be voted upon. If the motion for divi-sion is carried, those parts of the proposal that aresubsequently approved shall be put to the vote as awhole. If all operative parts of the proposal have beenrejected, the proposal shall be considered to have beenrejected as a whole.

Rule 41. Voting on amendments

When an amendment is moved to a proposal, theamendment shall be voted on first. When two or moreamendments are moved to a proposal, the Conferenceshall first vote on the amendment furthest removed insubstance from the original proposal and then on theamendment next furthest removed therefrom, and soon until all the amendments have been put to the vote.Where, however, the adoption of one amendment nec-essarily implies the rejection of another amendment,the latter amendment shall not be put to the vote. If oneor more amendments are adopted, the amended pro-posal shall then be voted upon. A motion is consideredan amendment to a proposal if it merely adds to, deletesfrom or revises part of the proposal. Unless specifiedotherwise, the word "proposal" in these rules shall beconsidered as including amendments.

Rule 42. Voting on proposals

If two or more proposals relate to the same question,the Conference shall, unless it decides otherwise, voteon the proposals in the order in which they have been

Rules of procedure xxlii

submitted. The Conference may, after each vote on aproposal, decide whether to vote on the next proposal.

Rule 43. Elections

All elections shall be held by secret ballot unlessotherwise decided by the Conference.

Rule 44

1. If, when one person or one delegation of a par-ticipating State is to be elected, no candidate obtains inthe first ballot a majority of the votes of the represen-tatives present and voting, a second ballot restricted tothe two candidates obtaining the largest number ofvotes shall be taken. If in the second ballot the votes areequally divided, the President shall decide between thecandidates by drawing lots.

2. In the case of a tie in the first ballot among threeor more candidates obtaining the largest number ofvotes, a second ballot shall be held. If a tie resultsamong more than two candidates, the number shall bereduced to two by lot and the balloting, restricted tothem, shall continue in accordance with the precedingparagraph.

Rule 45

When two or more elective places are to be filled atone time under the same conditions, those candidates,not exceeding the number of such places, obtaining inthe first ballot a majority of the votes of the represen-tatives present and voting shall be elected. If the num-ber of candidates obtaining such majority is less thanthe number of persons or delegations to be elected,there shall be additional ballots to fill the remainingplaces, the voting being restricted to the candidatesobtaining the greatest number of votes in the previousballot, to a number not more than twice the placesremaining to be filled, provided that, after the thirdinconclusive ballot, votes may be cast for any eligibleperson or delegation. If three such unrestricted ballotsare inconclusive, the next three ballots shall be restric-ted to candidates who obtained the greatest number ofvotes in the third of the unrestricted ballots, to a num-ber not more than twice the places remaining to befilled, and the following three ballots thereafter shall beunrestricted, and so on until all the places have beenfilled.

Rule 46. Equally divided votes

If a vote is equally divided on matters other thanelections, the proposal or motion shall be regarded asrejected.

CHAPTER VII

Committees

Rule 47. Committee of the Whole

The Conference shall establish a Committee of theWhole, which may set up sub-committees or workinggroups. The Committee of the Whole shall have as

its officers a Chairman, a Vice-Chairman and a Rap-porteur.

Rule 48. Drafting Committee

1. The Conference shall establish a Drafting Com-mittee consisting of fifteen members representing par-ticipating States, including its Chairman who shall beelected by the Conference in accordance with rule 6.The other fourteen members of the Committee shall beappointed by the Conference on the proposal of theGeneral Committee. The Rapporteur of the Committeeof the Whole participates ex officio, without a vote, inthe work of the Drafting Committee.

2. The Drafting Committee shall consider draft arti-cles of the basic proposal referred to it directly pur-suant to paragraph 1 of rule 28. It shall also consider anydraft articles referred to it by the Committee of theWhole after initial consideration by that Committee.The Drafting Committee shall furthermore preparedrafts and give advice on drafting as requested by theConference or by the Committee of the Whole. It shallalso co-ordinate and review the drafting of all textsadopted and shall report, as appropriate, either to theConference or to the Committee of the Whole.

Rule 49. Officers

Except as otherwise provided in rule 6, each commit-tee, sub-committee and working group shall elect itsown officers from among representatives of partici-pating States.

Rule 50. Quorum

1. The Chairman of the Committee of the Wholemay declare a meeting open and permit the debate toproceed when representatives of at least one quarter ofthe States participating in the Conference are present.The presence of representatives of a majority of theStates so participating shall be required for any decisionto be taken.

2. A majority of the representatives on the Gen-eral, Drafting or Credentials Committees or any sub-committee or working group shall constitute a quorum.

Rule 51. Officers, conduct of business anddecision-taking

The rules contained in chapters II, V (except rule 17)and VI above shall be applicable, mutatis mutandis, tothe proceedings of committees, sub-committees andworking groups, except that:

(a) The Chairmen of the General, Drafting andCredentials Committees and the chairman of any sub-committee or working group may exercise the right tovote;

(b) Decisions of committees, sub-committees andworking groups shall be taken by a majority of therepresentatives of States present and voting, exceptthat the reconsideration of a proposal or an amendmentshall require the majority established by rule 32.

xxlv United Nations Conference on the Law of Treaties

CHAPTER VIII

Languages and records

Rule 52. Languages of the Conference

Arabic, Chinese, English, French, Russian andSpanish shall be the languages of the Conference.

Rule 53. Interpretation

1. Speeches made in a language of the Conferenceshall be interpreted into the other such languages.

2. A representative may speak in a language otherthan a language of the Conference if the delegationconcerned provides for interpretation into one suchlanguage.

Rule 54. Records and sound recordingsof meetings

1. Summary records of the plenary meetings of theConference and of the meetings of the Committee of theWhole shall be kept in the languages of the Conference.As a general rule, they shall be circulated as soon aspossible, simultaneously in all the languages of theConference, to all representatives, who shall inform thesecretariat within five working days after the circula-tion of the summary record of any changes they wish tohave made.

2. The secretariat shall make sound recordings ofmeetings of the Conference, the Committee of theWhole and the Drafting Committee. Such recordingsshall be made of meetings of other committees, sub-committees or working groups when the body con-cerned so decides.

Rule 55. Languages of official documents

Official documents shall be made available in thelanguages of the Conference.

CHAPTER IX

Public and private meetings

Rule 56. Plenary meetings and meetings ofcommittees

The plenary meetings of the Conference and themeetings of committees shall be held in public unlessthe body concerned decides otherwise. All decisionstaken by the plenary of the Conference at a privatemeeting shall be announced at an early public meetingof the plenary.

Rule 57. Meetings of sub-committees orworking groups

As a general rule, meetings of a sub-committee orworking group shall be held in private.

Rule 58. Communiques on private meetings

At the close of a private meeting, the chairman of theorgan concerned may issue a communique' to the pressthrough the Executive Secretary.

CHAPTER X

Other participants and observers

Rule 59. Representatives of the United NationsCouncil for Nambia

Representatives designated by the United NationsCouncil for Namibia may participate in the delibera-tions of the Conference, the Committee of the Wholeand other committees, sub-committees or workinggroups, in accordance with the relevant resolutions anddecisions of the General Assembly.

Rule 60. Representatives of the United Nations andof the organizations that have received an invitationfrom the General Assembly in subparagraph 2 (e) ofits resolution 39/86

1. Except as otherwise provided in the presentrules, representatives designated by the United Na-tions or by organizations referred to in subpara-graph 2 (e) of General Assembly resolution 39/86,that have traditionally been invited to participate asobservers at legal codification conferences convenedunder the auspices of the United Nations, shall par-ticipate in the Conference in the following capacity:

(a) To participate in public and private meetingsof the Conference, the Committee of the Whole, sub-committees and working groups, as well as in theprocess leading to general agreement;

(b) To submit documents for circulation;(c) To intervene in the debates;—To exercise the right of reply in accordance with

rule 22;—To explain their positions on any matter on which a

decision has been or is to be taken;(d) To submit substantive proposals, which as such

may only be put to the vote subject to rule 63 if a formalrequest is made by a State to that effect. If the proposalhas been circulated in writing, the formal request shallbe circulated in the same manner;

(e) To submit procedural motions, including thosereferred to in rules 23, 24 and 25, which may not be putto the vote unless supported by a State.

2. Representatives of the organizations partici-pating in the Conference in accordance with para-graph 1 of this rule may not:

(a) Object to any procedural motion put forward bya representative of a participating State;

(b) Prevent on their own the achievement of generalagreement or participate in any vote.

3. Delegations of the organizations referred to inparagraph 1 shall be seated in alphabetical order fol-lowing the seating of delegations of States.

Rule 61. Representatives of organizations that havereceived a standing invitation from the General As-sembly to participate in the sessions and the workof all international conferences convened under itsauspices in the capacity of observers in accordance

Rules of procedure

with General Assembly resolutions 3237 (XXIX) and31/152

Representatives designated by organizations thathave received a standing invitation from the GeneralAssembly in accordance with General Assembly res-olutions 3237 (XXIX) of 22 November 1974 and 31/152of 20 December 1976 to participate in the sessions andthe work of all international conferences convened un-der its auspices have the right to participate as ob-servers, without the right to vote, in the deliberationsof the Conference, the Committee of the Whole and,as appropriate, other committees, sub-committees orworking groups.

Rule 62. Representatives of national liberationmovements

Representatives designated by national liberationmovements invited to the Conference may participateas observers, without the right to vote, in the delibera-tions of the Conference, the Committee of the Wholeand, as appropriate, other committees, sub-committeesor working groups.

CHAPTER XI

Promotion of general agreement

Rule 63. Promotion of general agreement

1. The Conference shall, both at the plenary and atthe Committee of the Whole stages, make every effort

to reach general agreement on matters of substance,particularly on the final results of the work of the Con-ference, and there shall be no voting on such mattersuntil all efforts to that end have been exhausted.

2. In endeavouring to reach general agreement, allpossible means shall be used. The officers of the Con-ference shall chair as appropriate, co-ordinate and su-pervise meetings with a view to enhancing the pros-pects of reaching general agreement.

3. If, in the consideration of any matter of sub-stance, no general agreement appears to be attainable,the President of the Conference shall inform the Gen-eral Committee that efforts to reach general agreementhave failed. The General Committee shall thereuponconsider the matter and may recommend that it bedecided by a vote, indicating the date of the vote, andplace the question before the plenary or the Committeeof the Whole as the case may be.

CHAPTER XII

Amendments to the rules of procedure

Rule 64. Method of amendment

These rules of procedures may be amended by adecision of the Conference taken by a two-thirds ma-jority of the representatives of participating Statespresent and voting.

SUMMARY RECORDSOF THE PLENARY MEETINGS

1st TO 8th MEETINGS

SUMMARY RECORDS OF THE PLENARY MEETINGS

1st plenary meetingTuesday, 18 February 1986, at 10.20 a.m.

Acting President: Mr. FLEISCHHAUER(Legal Counsel of the United Nations,

representing the Secretary-General)

President: Mr. ZEMANEK (Austria)

Opening of the Conference[Item 1 of the provisional agenda]

1. The ACTING PRESIDENT, speaking on behalf ofthe Secretary-General, welcomed Mr. Gerald Hin-teregger, Permanent Representative of Austria to theUnited Nations at Vienna, representing the FederalPresident of the Republic of Austria, who was unable toattend because of illness. He welcomed also the Fed-eral Minister of Justice of the Republic of Austria andthe other distinguished guests.

2. On behalf of the Secretary-General, he declared theUnited Nations Conference on the Law of Treatiesbetween States and International Organizations or be-tween International Organizations open and invited theparticipants to observe a minute's silence for prayer ormeditation.

The Conference observed a minute of silence.

3. The ACTING PRESIDENT, speaking as the rep-resentative of the Secretary-General, said that all par-ticipants regretted that the Federal President had beenprevented by illness from attending the meeting andwished him a speedy recovery. On behalf of all delega-tions, he wished to convey to the Federal President, theGovernment and people of Austria and the City ofVienna, deep appreciation for the hospitality and cour-tesy being once more extended to the United Nations.

4. The Conference was the seventh in a series ofplenipotentiary legal conferences held in Vienna since1961 in pursuit of the progressive development of inter-national law and its codification. The area was one inwhich the United Nations had been particularly activeand successful over the past 40 years. The process ofcodification of international law had been said to havestarted in the years 1814 and 1815 with the historicCongress of Vienna. It was, however, with the creationof the United Nations that the process had entered anew dynamic, institutional and permanent phase. Arti-cle 13, paragraph 1 (a), of the Charter conferred uponthe General Assembly the specific task of contributingto the progressive development of international law andits codification. The International Law Commissionhad been set up in 1947 in implementation of that man-date and had become the core body in the codification

process, a function to which the United Nations haddevoted continuing efforts and action.5. Since 1947, the debate had centred on the sub-stantive aspects of diplomatic codification rather thanon the question of whether and how such codificationshould be conducted. The diplomatic character of thedevelopment and codification of international lawthrough the United Nations had always to be borne inmind. It gave the measure both of the possibilities andof the limitations of the process. In the first place, theUnited Nations was not a super State, and the power tolegislate in the field of international law remained ul-timately vested in States. The role of the United Na-tions was to encourage, assist, harmonize and providethe necessary fora.

6. It was equally important to remember that theUnited Nations was not a centre for research into inter-national law and for the advancement of legal science.The progressive development of international lawthrough the United Nations was aimed at the fulfilmentof the needs, political aspirations and interests of theStates and of the international community as a whole.7. Understood in that sense, the process corre-sponded to urgent needs. The constant modernizationof international law served the maintenance of peaceand international security. The constant adaptation ofinternational law to changing conditions gave it en-hanced importance in providing a structure and a basisfor international relations and international co-opera-tion. Last but by no means least, much of the changeand adaptation in international law had been neces-sitated by the dramatic growth of the international com-munity and the change in its character since 1945. Thatprocess had brought new actors to the internationalscene, with their own background, ideas, priorities,needs, principles and concepts.

8. The demand for codification and progressivedevelopment was such that United Nations activitieshad not been confined to the International Law Com-mission. Since 1966, a second core body, the UnitedNations Commission of International Trade Law, hadbeen active in the harmonization of international tradelaw, and a number of other bodies had been entrustedby the General Assembly with law-making tasks, nota-

Summary records—Plenary meetings

bly in the fields of human rights, outer space and mari-time matters. The General Assembly itself had beenactive in the development of international law with theelaboration and adoption of the 1969 Convention onSpecial Missions, the 1973 Convention on the Preven-tion and Punishment of Crimes against InternationallyProtected Persons, including Diplomatic Agents, andthe 1979 International Convention against the Taking ofHostages.1

9. The 1969 Vienna Convention on the Law ofTreaties had been one of the highlights of the develop-ment and codification of international law through theUnited Nations. That Convention had been followed in1978 by the Vienna Convention on the Succession ofStates with respect to Treaties. The purpose of thepresent Conference was to establish, in the form of athird international convention governing another im-portant aspect of the law of treaties, the rules of inter-national law applicable to treaties to which interna-tional organizations were parties.10. It was therefore in the light of the general princi-ples of the law of treaties, set out authoritatively in the1969 Convention, that the present Conference mustproceed. In so doing, it would have to preserve theprovisions of the 1969 Convention and, in that con-nection, he cautioned that any other course of actionwould have disastrous consequences. The General As-sembly had been conscious of that important consid-eration, and in the draft rules of procedure which ithad transmitted and recommended to the Conference(A/CONF. 129/7) had sought to ensure that there wouldbe a dual procedure for reviewing, on the one hand, theprovisions of those draft articles that were completelyparallel to the 1969 Convention and, on the other hand,the provisions of the draft articles referring to the par-ticular needs of treaty-making by and with internationalorganizations.

11. He was grateful that Mr. Paul Reuter of France,the Rapporteur of the International Law Commissionfor the draft articles, had agreed to serve the Con-ference as Expert Consultant.12. He invited the representative of the Federal Pres-ident of the Republic of Austria to address the Con-ference.

Address by the representative of the Federal Presidentof the Republic of Austria

13. Mr. HINTEREGGER, Permanent Representa-tive of Austria to the United Nations at Vienna, rep-resenting the Federal President of the Republic of Aus-tria, said that Mr. Rudolf Kirchschlaeger regretted hisinability to attend and had asked him to read to theConference the statement he had intended to make inperson.14. As head of State of the host country, the FederalPresident warmly welcomed all participants in the Con-ference, which continued the long-standing tradition ofholding United Nations Conferences devoted to thecodification of international law in the Austrian capital.

1 General Assembly resolutions 2530 (XXIV), 3166 (XXVIII) and34/146, respectively.

In view of its geographical position, its history and itsstatus as a permanently neutral country, Austria waspredestined to serve as a bridge between peoples, andits endeavours in that respect could hardly be betterexpressed than by hosting a conference to which all themembers of the international community were invitedto participate. Having regard to its subject, it was par-ticularly appropriate that the present Conferenceshould take place in Vienna, because international or-ganizations were part of the city's everyday life, inparticular as Vienna had become one of the Centres ofthe United Nations.

15. A quarter of a century earlier, as legal adviser tothe Austrian Foreign Ministry, the Federal Presidenthad been entrusted with organizing the United NationsConference on Diplomatic Intercourse and Immunities,which had resulted in the Vienna Convention on Dip-lomatic Relations, and had served as head of the Aus-trian Delegation. In 1963 he had acted in the samecapacity at the Vienna Conference on Consular Rela-tions, and had subsequently attended several UnitedNations codification conferences. He had always doneso in the conviction that the fulfilment by the UnitedNations of its Charter responsibilities for the progres-sive development of international law and its codifica-tion was instrumental in making the world more pea-ceful.

16. The problems the Conference would deal withwere not particularly easy ones, and as in all inter-national conferences, a successful conclusion wouldrequire mutual understanding and the readiness also tomake fair compromises. He was certain that all par-ticipants would use their best endeavours to codifya further important segment of international law andthereby lay down legal rules for another area of inter-national relations.

Election of the President[Item 2 of the provisional agenda]

17. Mr. SCHRICKE (France), supported byMr. NASCIMENTO e SILVA (Brazil), nominatedMr. Karl Zemanek (Austria) as President of the Con-ference.18. It was a pleasure for his delegation to present thatcandidature, in view of the long-standing historical rela-tions between Austria and France and their close co-operation, especially in the legal field.19. The Austrian Government was once again actingas host to a conference on the codification of inter-national law, and his delegation wished to take theopportunity to thank the Austrian authorities for theirgenerous hospitality.20. In Mr. Zemanek the Conference would have as itsPresident an eminent jurist particularly qualified in thesubject matter of the Conference, who also had longexperience of diplomatic forums, having participated ina number of codification conferences and having pre-sided over the 1977-1978 United Nations Conference onthe Succession of States in Respect of Treaties.21. The task of the President would be facilitated bythe quality of the preparatory work that had taken place

1st plenary meeting—18 February 1986

in the International Law Commission and in the consul-tations held in New York. Tribute should be paid tothose who had organized those consultations and con-tributed to their success, and this practice should beencouraged.22. Decisions now had to be made by the Conference,and Mr. Zemanek would contribute to ensuring its suc-cess.

Mr. Karl Zemanek (Austria) was elected Presidentby acclamation and took the Chair.23. The PRESIDENT said that he accepted with hu-mility the responsibility conferred on him, seeing in itprimarily a tribute to the Government and people of hiscountry. The task before the Conference was un-doubtedly a most difficult one; the topic to be coveredwas of great complexity. To agree on a single, uniformset of articles applicable to entities that were so diverseand to ensure that the product of its labour would not bestill-born would require of the Conference a sense ofproportion, common sense and goodwill. Twenty-fiveyears had passed since the United Nations Conferenceon Diplomatic Intercourse and Immunities had laid thefoundations of an impressive "Vienna tradition" ofsuccessful codification conferences. He would do hisbest, gladly and with dedication, to ensure that thepresent Conference lived up to that tradition.24. Mr. PASCHKE (Federal Republic of Germany)congratulated the President on his election. He paidtribute to those who had inspired and directed the infor-mal consultations in New York which had resulted inthe draft rules of procedure of the Conference, andnoted with satisfaction the presence of many membersof the International Law Commission; Mr. Reuter, itsSpecial Rapporteur and sometime President, was par-ticularly welcome in the capacity of Expert Consultant.25. Mr. CHUTASAMIT (Thailand), speaking asActing Chairman of the group of Asian countries, con-gratulated the President on his election, paying tributeto his academic and diplomatic skills and experienceand pledging the full co-operation of the Asian Group inthe conduct of the Conference. The Group also wishedto place on record its appreciation of the hospitalityaccorded by the host State.

Adoption of the agenda[Item 3 of the provisional agenda]

The provisional agenda (A/CONF. 129/1) wasadopted.

Adoption of the rules of procedure[Agenda item 4]

26. The PRESIDENT drew attention to the draft rulesof procedure (A/CONF. 129/7). Those rules were theoutcome of lengthy consultations in New York andwere recommended for adoption in General Assemblyresolution 40/76, paragraph 4.

The draft rules of procedure (A/CONF. 12917) wereadopted.27. Mr. BERNAL (Mexico) said that his delegationfavoured the active participation of international organ-

izations in the work of the Conference, and consideredthat the rules of procedure largely contained the pro-visions for such participation. He looked forward to theconstructive participation of the international organiza-tions in the preparation and adoption of the convention.28. Mexico had always believed that States should beencouraged to work towards general agreement on thefinal text of conventions. However, although a textagreed by a large majority might be thought to be morewidely acceptable than one adopted by a simple major-ity, that was not self-evident, and, whatever the form ofvoting, respect for the principle of sovereign equality ofStates and the democratic bases of every organizationhad to be retained. Complicating the rules of procedurewould not necessarily lead to better results. The idea ofgeneral acceptance was, moreover, closely related tothe political will of States to bind themselves at theinternational level. Thus, in his delegation's view, theproblem of the codification and progressive develop-ment of international law was one not of proceduralefficiency but of effectiveness and of political will.Without political will, rule 63, which was presumablyintended to strengthen the process of negotiation andapproval of the final text of the future convention,would not be effective.

29. Specifically, his delegation considered that rule 63should be interpreted in good faith in accordance withthe ordinary meaning to be given to its terms in theircontext and in the light of the informal consultations atwhich it had been prepared. The purpose of rule 63 wasto ensure that efforts were made to adopt the final textof the convention by general, but not necessarily unan-imous, agreement. Accordingly, the rule should not beinterpreted as an obligation to arrive at unanimousagreement to adopt the convention. The so-called ruleof consensus was the result of negotiation in good faithand not a form of voting, particularly since the term"general agreement" had not been defined in the rulesof procedure and there was no clear understanding as toits meaning.

30. His delegation had accepted the wording of rulessuch as 63 and 34 in a spirit of compromise and in ordernot to obstruct the convening of the Conference. Thatdid not, however, mean that the agreement reflected inrule 63 constituted a binding precedent for the adoptionof resolutions and decisions of the United Nations andits organs, commissions and committees.

31. Lastly, paragraph 3 of rule 63 was not to be inter-preted as a derogation of the exercise of the right to voteor to mean that the exercise of that sovereign rightcould be denied by the virtue of a procedure like thatprovided for under rule 63.

32. Subject to those observations, his delegation hadapproved the rules of procedure.

33. Mr. SHASH (Egypt) said that while his delega-tion was able to accept the rules of procedure, includingrule 63, for the special purposes of the Conference, itconsidered that they should not be deemed to constitutea precedent for all international meetings.

34. Mr. ABDEL RAHMAN (Sudan) observed thatconsiderable effort had been expended at the General


Assembly in arriving at the rules of procedure. Hetrusted that a similar spirit of conciliation would prevailat the Conference.35. Mr. VOGHEL (Canada), speaking on behalf ofthe delegations of Canada, the Federal Republic ofGermany, France, the United Kingdom and the UnitedStates of America, said that while those delegations had

joined in the consensus (on the rules of procedure),their acceptance of those arrangements should not beconstrued as a change in their position concerning thelegal nature of the participation of Namibia as represen-ted by the United Nations Council for Namibia.

The meeting rose at 11.55 a.m.

2nd plenary meetingWednesday, 19 February 1986, at 12.10 p.m.


Election of Vice-Presidents[Agenda item 5]

1. The PRESIDENT said that, in the light of rule 6 ofthe rules of procedure, the regional groups had met andhad nominated the representatives of the following22 States as Vice-Presidents of the Conference: Bul-garia, Chile, Cote d'lvoire, France, German Demo-cratic Republic, Greece, Guatemala, India, Japan,Kuwait, Lebanon, Netherlands, Peru, Poland, Sen-egal, Sudan, Switzerland, Tunisia, United Kingdomof Great Britain and Northern Ireland, United States ofAmerica, Uruguay, Zimbabwe.2. Mr. ALMODOVAR (Cuba) said that his delegationrejected the nomination of a representative of Chile as aVice-President. It had not been agreed by the LatinAmerican group of countries.3. Mr. PALOMO (Guatemala), speaking on behalf ofthe Latin American group of countries, said that theyhad held a series of meetings at which the nominationsof Vice-Presidents from among the Latin Americancountries had been agreed. Unfortunately, the rep-resentative of Cuba had not been present at thosemeetings.4. Mr. ALMOD6VAR (Cuba) said that his delegationcould not agree that the representative of Chile shouldoccupy a post of Vice-President. That had not beenagreed by the Latin American group of countries, all ofwhose representatives knew that Cuba would not ac-cept the election of Chile as a Vice-President, preciselybecause it was not the country most representative ofLatin America. He did not propose to repeat the rea-sons for Cuba's refusal, which were well known toeveryone. His delegation regretted that it had to makethe matter public. It had been in the conference roomsince the building had opened for the Conference thatmorning, and at no time had its members seen anyannouncement about group meetings. It therefore re-iterated emphatically its refusal to agree that a repre-sentative of the Government of Chile should occupy apost of Vice-President on behalf of the Latin Americangroup of countries.

5. The PRESIDENT said that the statement of therepresentative of Cuba would be recorded in full in thesummary record of the meeting. As he saw no otherobjections, he would take it that the Conference ap-proved the election of the 22 Vice-Presidents nomi-nated by the regional groups.

It was so decided.

Election of the Chairman of theCommittee of the Whole

[Agenda item 6]

6. The PRESIDENT announced the nomination ofMr. Mohamed El-Taher Shash (Egypt) as Chairman ofthe Committee of the Whole.

Mr. Mohamed El-Taher Shash (Egypt) was electedChairman of the Committee of the Whole by accla-mation.

Election of the Chairman of theDrafting Committee

[Agenda item 7]

7. The PRESIDENT announced the nomination ofMr. Awn Al-Khasawneh (Jordan) as Chairman of theDrafting Committee.

Mr. Awn Al-Khasawneh (Jordan) was elected Chair-man of the Drafting Committee by acclamation.

Appointment of the Credentials Committee[Agenda item 8]

8. The PRESIDENT said that, in the light of rule 4 ofthe rules of procedure, he proposed that the represen-tatives of the following nine States should be the mem-bers of the Credentials Committee: Brazil, Canada,China, Ecuador, Gabon, Thailand, Union of SovietSocialist Republics, United States of America, Zambia.

That proposal was adopted.

The meeting rose at 12.25 p.m.

3rd plenary meeting—19 February 1986

3rd plenary meetingWednesday, 19 February 1986, at 4.35 p.m.


Appointment of other membersof the Drafting Committee

[Agenda item 9]

1. The PRESIDENT announced that the GeneralCommittee recommended the appointment of the rep-resentatives of the following States as members ofthe Drafting Committee, in addition to the Chairman:Algeria, Argentina, China, France, Italy, Japan, Mo-rocco, Nigeria, Romania, Spain, Union of Soviet So-cialist Republics, United Kingdom of Great Britain andNorthern Ireland, United States of America and Vene-zuela.

It was so decided.

Organization of work[Agenda item 10]

2. The PRESIDENT, drawing attention to para-graph 31 of the Memorandum of the Secretary-General(A/CONF. 129/3), said that he had been asked by theGeneral Committee to inform the Conference that theCommittee agreed that there should be no general de-bate either in plenary or in the Committee of the Whole.There would be ample opportunity to make statementsof principle in relation to specific articles as and whenthey were considered. Turning to paragraph 40 of theMemorandum, he said that the weekly schedule wouldindicate the time available and the results expected forthe week and should be a guide in deliberations andwork within the individual organs of the Conference.

3. In the absence of objection he would take it that theConference endorsed the suggestions in the Secretary-General's Memorandum, together with those two ad-ditional comments.

It was so decided.4. Mr. JESUS (Cape Verde) observed that it might beadvisable to decide on the schedule for the rest of theweek so that delegates could make adequate prepara-tion and actively participate in the deliberations.5. Mr. KALINKIN (Executive Secretary of the Con-ference) said that it was the secretariat's understandingthat when the Committee of the Whole and the DraftingCommittee met for the first time they would start byconsidering the organization of work. It was for eachcommittee to decide in which order the articles wouldbe considered.6. The PRESIDENT said that the secretariat couldnot anticipate such a decision. If the Committee of theWhole made its decision later in the day, the secretariatmight be able to arrange a schedule. As the DraftingCommittee would not be meeting until the followingday, there might be time to draw up a provisional time-table for its consideration.

7. Mr. JESUS (Cape Verde) agreed that the pro-gramme would be better established by the individualcommittees than by the plenary. However, he felt thatthe Conference should decide at the present stageon the number of plenary meetings to be held duringthe current and following week and on the number ofmeetings to be held by the Committee of the Whole andthe Drafting Committee during the same period.8. The PRESIDENT replied that there would be noplenary meetings during that period unless a particularneed arose, and both morning and afternoon sessions,between 10 a.m. and 1 p.m. and 3 p.m. and 6 p.m.,would be taken up entirely by the Committee of theWhole. The Drafting Committee could meet any daybetween the hours of 9 a.m. and 10 a.m. and 6 p.m. and7 p.m. if it wished to do so. Since the Drafting Commit-tee should in principle work as speedily as possible, itwould decide on its own meetings, and its progresswould be assessed the following week.

9. Turning to the subject of the final clauses, he saidthat the General Committee proposed that the Con-ference should defer any decision as to how to handlethe final clauses until the debate in the Committee of theWhole had started and the mood of the Conferencecould be interpreted. If there was no objection, hewould take it that the Conference endorsed that pro-posal.

// was so decided.10. The PRESIDENT, turning to the list of arti-cles contained in the attachment to document A/CONF. 129/8, said that it had been adopted by consen-sus in the consultations in New York and transmitted tothe Conference for its consideration and action as ap-propriate.11. Mr. SCHRICKE (France) said that his delegationhad participated actively in the consultations which hadled to the establishment of the list of draft articles of thebasic proposal for which substantive consideration wasdeemed necessary. To distinguish between articles tobe given substantive consideration and those to be re-ferred directly to the Drafting Committee was a depar-ture from the customary practice, which his delegationbelieved should be followed as a general rule, wherebyall draft articles submitted to a diplomatic conferencewere given substantive consideration before being re-ferred to the Drafting Committee. The distinction hadresulted from a desire to maintain as close a parallel aspossible between the present draft and the 1969 ViennaConvention on the Law of Treaties,1 and had also in-fluenced the draft articles prepared by the Interna-tional Law Commission. While that approach might

' Official Records of the United Nations Conference on the Lawof Treaties (United Nations publication, Sales No. E.70.V.5),p. 287.


be acceptable from the methodological point of view,it raised difficulties for his delegation. France hadexpressed its disagreement with some important pro-visions in the 1969 Convention, in particular those re-lating to jus cogens. That concept was still as nebulousas it had been in 1969, and his delegation thereforemaintained the reservations and objections it had madewith respect to those provisions at the 1968/1969 Con-ference,2 and which had been the reason why Francehad not become party to that Convention. If similarprovisions were to be included in the draft Conventionnow before the Conference, the outcome would be thesame. Even if that were to be the case, the Frenchdelegation was nevertheless prepared to participate ac-tively and constructively in the work of the Conferenceand, even though it might not become party to theConvention, it would not fail to take into account thoseprovisions to which it could agree, as it and many otherStates had done in respect of the provisions of the 1969Convention relating to customary international law.

12. The French delegation, in that spirit, could acceptthe principle underlying the preparation of the list inannex II of General Assembly resolution 40/76, and hadnot requested the inclusion in it of certain provisions towhich it had serious objections. The direct referral of alarge number of articles to the Drafting Committeecould not therefore be construed as implying his delega-tion's approval of all the rules laid down in those arti-cles.

13. The PRESIDENT said that the intention was thatthe articles in the list would be submitted for consider-ation to the Committee of the Whole and the otherarticles would be referred direct to the Drafting Com-mittee. However, it would be up to the latter to referany articles to the Committee of the Whole if, in thecourse of its work, it felt that more substantive con-sideration was justified.14. In cases where only certain paragraphs of articleswere referred to the Committee of the Whole and the

2 Ibid. (United Nations publication, Sales No. E.70.V.6), 19th ple-nary meeting, paras. 7 to 18.

remainder of the article was referred directly to theDrafting Committee, there would be nothing to pre-vent delegates from using the remaining paragraphs inmaking points in respect of paragraphs under consid-eration in the Committee of the Whole. Furthermore,the Drafting Committee would not deal with any articleuntil the Committee of the Whole had completed itsconsideration of the paragraphs referred to it. If therewas no objection, he would take it that the Conferenceapproved the list of articles and the working arran-gements proposed by the General Committee.

// was so decided.

Consideration of the question of the law of treatiesbetween States and international organizations orbetween international organizations, in accordancewith General Assembly resolutions 37/112 of 16 De-cember 1982, 38/139 of 19 December 1983, 39/86 of13 December 1984 and 40/76 of 11 December 1985(A/CONF. 129/4)

[Agenda item 11]

15. The PRESIDENT said that the only decision tobe taken by the Conference at the present stage wasto request the Committee of the Whole to consider thearticles on the list on the understanding embodied inthe working arrangements, and to refer the other arti-cles to the Drafting Committee for consideration.

It was so decided.16. The PRESIDENT said that he had received a let-ter from the Secretary-General drawing attention to theseriousness of the Organization's financial problemsand asking for co-operation in the matter of holdingdown expenditure, first, by limiting the costs ofmeetings by restricting their number and duration tothe greatest extent possible and reasonable, and sec-ond, by limiting documentation costs by restricting tothe greatest extent possible and reasonable the docu-mentation to be produced at the Conference. He wasconfident that everyone would co-operate fully in aneffort to comply with those requests.


4th plenary meetingThursday, 13 March 1986, at 3.20 p.m.


Organization of work[Agenda item 10]

1. The PRESIDENT said that when the Conferencehad allocated various provisions of the draft articles tothe Committee of the Whole and others to the DraftingCommittee, the question of the preamble and the finalclauses had remained in abeyance. In the absence ofany objections, he would take it that the Conference

agreed to entrust the preparation of the preamble andthe final clauses to the Committee of the Whole.

It was so decided.2. The PRESIDENT said that the Conference hadalso to adopt a final act. In the absence of any objec-tions, he would take it that the Conference entrusted itspreparation to the Drafting Committee.

// was so decided.

5th plenary meeting—18 March 1986

3. The PRESIDENT invited those delegations whowished to have specific points or ideas reflected inthe preamble to submit their proposals in writing tothe Committee of the Whole. Two such proposals hadalready been submitted and were reproduced in doc-uments A/CONF.129/C.1/L.71 and L.72.4. He wished to consult the Conference on the man-ner in which the Drafting Committee should report onthe results of its work. The Chairman of the Committeeof the Whole and the Chairman of the Drafting Commit-

tee agreed with him that the Drafting Committee shouldreport directly to the Conference, both on the provi-sions which had been referred to the Drafting Commit-tee directly and on those referred to it by the Committeeof the Whole. That would make for an orderly pro-cedure. In the absence of any objection, he would takeit that the Conference agreed to that arrangement.

// was so decided.


5th plenary meetingTuesday, 18 March 1986, at 3.50 p.m.



[Agenda item 11] {continued)*

Adoption of a convention and other instruments deemedappropriate and of the Final Act of the Conference

[Agenda item 12]

TEXTS PROPOSED BY THE DRAFTING COMMITTEE

1. The PRESIDENT recalled that the articlesproposed by the International Law Commission(A/CONF. 129/4) for the new convention fell into twocategories: first, those articles which the Conferencehad referred directly to the Drafting Committee, andsecondly, the articles which it had referred to the Com-mittee of the Whole for consideration and which thatCommittee had referred to the Drafting Committeeafter considering them. He further recalled that theConference, in order to expedite its work, had decidedthat the Drafting Committee should report directly tothe plenary of the Conference (4th plenary meeting,para. 4).

2. The Conference had before it the initial report ofthe Drafting Committee (A/CONF. 129/11), setting outthe titles of parts I to VII and sections thereof and thetitles and texts of articles 1, 2, 4 to 34, 38,40 to 44,46 to61,63,64,67 to 72 and 74 to 81, which had been adoptedby the Drafting Committee. He pointed out that draftarticle 66, the draft annex and the draft final provisionswere still under consideration in the Committee of theWhole.3. In the absence of objection, he would take it thatthe Conference agreed that after the Chairman of theDrafting Committee had completed his presentation ofeach article—or group of articles, where articles could

conveniently be grouped together—the Conferenceshould proceed to consider and adopt the article orgroup of articles in question, it being understood thatdelegations would be entitled to make statements inconnection with each article.

It was so decided.4. Mr. AL-KHASAWNEH, Chairman of the DraftingCommittee, introduced document A/CONF. 129/11,which contained the titles and texts of the articles so faradopted by the Drafting Committee. He drew attentionto the fact that the finalized texts of the preamble and anumber of further articles were not yet submitted to theConference, either because they had not yet been re-ferred to the Drafting Committee or because they werestill under consideration in that Committee. Should anydecisions be taken by the Conference which affectedthe numbering of the articles, the Drafting Committeewould make an appropriate recommendation in thatregard.5. At its previous meeting, the Conference had de-cided that the Drafting Committee should report on theresults of its work directly to the Conference. He wouldaccordingly report on the results of the Drafting Com-mittee's work on those articles which had been referreddirectly to it as well as on those which had been referredto the Drafting Committee by the Committee of theWhole.6. He wished to make at the outset a few generalremarks. As was well known, the convention beingelaborated at the present Conference contained manyprovisions parallel to those contained in the 1969Vienna Convention on the Law of Treaties.1 In theDrafting Committee's work on the articles referred toit, some of its members had felt that certain termi-nological inconsistencies existed between the texts ofthe 1969 Convention in the various languages, or theyhad found some inaccuracies in the text in particularlanguages. The Drafting Committee had agreed, how-

* Resumed from the 3rd plenary meeting.

1 Official Records of the United Nations Conference on the Lawof Treaties (United Nations publication, Sales No. E.7O.V.5),p. 287.

10 Summary records—Plenary meetings

ever, that as a general rule, texts of the 1969 Conventionwhich had been transposed to the draft convention atpresent under consideration should not be tamperedwith. While it might perhaps be felt that certain pro-visions of the 1969 Convention in certain languages didnot represent the most elegant use of the language inquestion, or that a reader comparing the texts in thedifferent languages might believe that the use of otherterms would achieve greater equivalence of meaningbetween the texts in the five languages, the DraftingCommittee had nevertheless deemed it more prudentnot to incorporate in one language version only anychanges or departures from the language of the 1969Convention. That had been done in order to maintainthe stability of existing treaty relations between theparties to the 1969 Vienna Convention, all of which hadagreed on the provisions of the instrument and had alsoagreed that the texts in the various languages wereequally authentic (article 85 of the Convention) and hadthe same meaning in each authentic text (article 33,paragraph 3). If the signatory States and contractingStates of the 1969 Convention agreed that the text con-tained errors, the procedure provided for in article 79could be set in motion.

7. Following the example of the International LawCommission, which had achieved some simplificationof its draft text between its first reading and its adoptionof the final draft, the Drafting Committee had recom-mended simpler formulas in some draft articles, as wellas the combining of paragraphs in certain draft articles.The Committee believed that simplification could beachieved in certain cases without loss of clarity andmeaning, whereas in other cases it had felt it necessaryto maintain the precision of the Commission's basicproposal, even if the drafting was somewhat cumber-some. When introducing the relevant draft articles, hewould indicate where such simplifications were recom-mended.8. He also wished to make a few general draftingpoints. Throughout the text of the draft articles referredto the Drafting Committee, the Committee had replacedthe expression "present articles" by "present Conven-tion" or simply "Convention", following the model ofthe 1969 Vienna Convention. He would refrain frompointing out that change when introducing the variousdraft articles separately.9. The Drafting Committee had also examined thequestion of the use of "he" or "his" in the draft Englishtext. While it might have been desirable to avoid thatunfortunate reference to only one gender, the DraftingCommittee had finally decided not to change the text,as that would have meant a departure from the 1969Vienna Convention. It was clear that when the drafttext referred to "he" or "his" it referred to a person,whether masculine or feminine.10. Lastly, an attempt had been made to maintain theconsistency established in the basic proposal with re-gard to the use of defined terms, such as "contractingorganizations" and "negotiating organizations", aswell as with regard to cases where the word "organiza-tion" should be qualified by "international".11. Mr. BERMAN (United Kingdom) said that hisdelegation wished to make two general observations

before the formal adoption by the Conference of thedraft convention.12. The first concerned the rule of general agreementwritten into the rules of procedure of the Conference.He did not wish to enter into a debate about the ap-plicability of such a rule elsewhere than in the presentConference; that would be a matter for discussion andanalysis later, when scholars and practising diplomatslooked back at the results of the Conference. As far asthe Conference itself was concerned, the rule of generalagreement had been an experiment and, he would ven-ture to say, an experiment which had worked very well.Ensuring that result had nevertheless imposed a strainon the President, the Chairman of the Committees, theSecretariat and all the participating delegations. Hewished to pay a tribute to all those concerned for themanner in which they had sought to fulfil the expecta-tions of the General Assembly. He hoped that the samespirit would prevail until the end of the Conference.

13. His second point concerned those draft provisionsthe substance of which had been taken from corre-sponding provisions of the 1969 Vienna Convention inrespect of which, at the United Nations Conference onthe Law of Treaties, the United Kingdom delegationhad stated its understanding, with the object of clari-fying their meaning or interpretation. He did not pro-pose to repeat those statements as the Conference con-sidered the draft articles submitted or to be submitted toit by the Drafting Committee. He therefore wished it tobe recorded that, in so far as such statements made bythe United Kingdom delegation at the United NationsConference on the Law of Treaties were relevant to thepresent draft articles, they should be taken as applyingequally to them.

14. The PRESIDENT said that he fully shared theviews of the United Kingdom representative regardingthe admirable spirit of co-operation that had prevailedin the Conference and his hope that that spirit wouldcontinue.

15. He invited the Chairman of the Drafting Commit-tee to introduce the draft texts proposed for adoption indocument A/CONF. 129/11 and the Conference to con-sider them.

Article 1 (Scope of the present Convention)

16. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that article 1 had been referreddirectly to the Drafting Committee. Except for twochanges affecting the Arabic text only, the article hadbeen adopted as drafted by the International Law Com-mission.

17. The changes affecting the Arabic text concernednot only article 1 but also other articles throughout theConvention. The first concerned the Arabic renderingof the word "applies"; the Arabic term originally usedhad been replaced by a more adequate one for stylisticreasons and in order to ensure consistency as betweenthe various articles. The second change was the dele-tion from the Arabic text of a group of words meaning"which are concluded"; those words in the Arabic textwere not only superfluous but could lead to misinter-pretation. He would refrain from referring again to

5th plenary meeting—18 March 1986 11

those two changes when introducing subsequent draftarticles in which they had also been made in the Arabictext.

Article 1 was adopted without a vote.

Article 2 (Use of terms)

18. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that the text referred to theDrafting Committee by the Committee of the Whole(A/CONF.129/DC/17) was a text worked out in theframework of consultations held under the chairman-ship of the President of the Conference.19. Typographical errors in the text in certain lan-guages had been corrected, and in the English text ofparagraph 1 (c) the word "and" appearing between thewords "international organization" and "designating"had been deleted, since the inclusion of that word con-stituted an unnecessary departure from the 1969 ViennaConvention. That change affected the English textonly.20. The designations for subparagraphs (b bis) and(b ter) had been maintained. The Drafting Committeehad considered whether or not to reletter those para-graphs in alphabetical order and had also consideredcombining subparagraphs (b), (b bis) and (b ter). It hadfinally decided to maintain the distinction between theterms in question by defining them in separate sub-paragraphs. In that way the parallel between the 1969Vienna Convention and the present convention wasmaintained with respect to the seven subparagraphswhich followed.21. Lastly, in the Arabic text of the final part of para-graph 1, the word used to render the English term"instruments"—which was one commonly used incommercial and property law—had been replaced byone more appropriate to international law. That changehad also been made in other draft articles; he wouldrefrain from drawing attention to it in connection withthe various articles in question.


Article 4 (Non-retroactivity of the present Convention)

22. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that article 4 had been referreddirectly to the Drafting Committee. In order to align thetext of the basic proposal with that of the 1969 Conven-tion in the Spanish version, the words "que se cele-bren" had been replaced by "que sean celebrados".No other changes had been made in the text.23. Mr. ALMOD6VAR (Cuba) said that as the pres-ent convention reproduced, with the same number, textand content, article 4 of the 1969 Vienna Convention onthe Law of Treaties, and as no circumstance had arisento justify any other course, his delegation now wishesto reiterate the position it had taken at the 30th ple-nary meeting of the United Nations Conference on theLaw of Treaties,- held on 19 May 1969, in the vote onarticle 77 of that Convention, which was later renum-

2 Ibid. (United Nations publication, Sales No. E.70.V.6), 30th ple-nary meeting, paras. 9 to 16.

bered 4 by the Drafting Committee, the numbers of thearticles cited being altered as appropriate.24. In amplification of that point, he wished it tobe recorded that the Cuban delegation interpreted theexception in article 4 to the non-retroactivity of thepresent convention, referring to the application of anyrules set forth therein' 'to which treaties between one ormore States and one or more international organiza-tions or between international organizations would besubject under international law independently of theConvention", as covering rules of international lawestablished as being applicable to a treaty, as well assituations arising or existing when that treaty enteredinto force, if that took place after the entry into force ofthe present convention, even if the date on which thetreaty was concluded or the situation originated wasearlier.

25. The Cuban delegation wished to reaffirm that theperemptory rules codified in the present conventionfully applied to all treaties in force, whatever the date oftheir entry into force, not only on purely logical groundsbased on the principle of the hierarchy of rules, but alsofor reasons of substances directly related to the notionof what was just at a given moment for the internationalcommunity, particularly with respect to the rules inarticles 48 to 53, 62 and 64. Any treaty conflicting withthose peremptory rules was both illegal and inadmissi-ble; it was not permissible to question whether thoseperemptory norms were or were not part of interna-tional law before the entry into force of the convention,from which they derived indisputable authority.


Article 5 (Treaties constituting international organiza-tions and treaties adopted without an internationalorganization)

26. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said the text of article 5 referred to theDrafting Committee by the Committee of the Wholewas one which had been worked out in the frameworkof consultations held under the chairmanship of thePresident of the Conference (A/CONF.129/C.1/L.70).27. The text now submitted to the Conference con-tained certain drafting adjustments. The original texthad referred to "any treaty which is the constituentinstrument of an international organization and towhich States and international organizations are par-ties". In order to clarify that passage and make it moreprecise, it had been reworked to read "any treaty be-tween one or more States and one or more internationalorganizations which is the constituent instrument of aninternational organization".

28. It would be recalled that the Committee of theWhole (27th meeting) had agreed to delete the word"relevant" before "rules of the organization" in arti-cle 5, as well as in other articles. It had, however, beenunderstood that if the Drafting Committee felt an im-perative need to reintroduce the word "relevant" itcould make a recommendation to that effect. The Com-mittee in fact now made that recommendation withregard to article 5. As had been explained by the ExpertConsultant, if the word "relevant" were to be left out, it


might be argued that virtually any rule of an organiza-tion could be invoked to allege the inapplicability of thepresent convention to the treaties which were the sub-ject of article 5. In the context of article 5, the term"relevant" served the useful purpose of stressing thatthe rules involved must be those which were related totreaty-making or to the conclusion of the treaties inquestion. Moreover, the 1969 Vienna Convention hadexplicitly included in its article 5 a reference to "anyrelevant rules of the organization".


Article 6 (Capacity of international organizations toconclude treaties)

29. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that in adopting the InternationalLaw Commission's text of the article for referral to theDrafting Committee, the Committee of the Whole hadagreed to delete the word "relevant" (ibid.).30. Some members of the Drafting Committee had feltthat insertion of that word would be preferable; theCommittee had, however, decided that to do so was notimperative, and thus did not recommend such inclu-sion. Consequently, with the exception of the deletionagreed by the Committee of the Whole, the text re-mained identical with the basic proposal.


Article 7 (Full powers)

31. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, recalled that the Committee of theWhole had adopted the consolidated text of article 7 asproposed by that Committee's Working Group on arti-cle 7 (A/CONF.129/C.1/L.43), as orally revised. Thetext had been referred to the Drafting Committee be-fore the question of the use of the term "powers" inthe convention had been resolved. As a consequence ofthe later adoption by the Committee of the Whole of atext for article 2 which did not contain a definition ofthat term, the Drafting Committee had replaced in sub-paragraphs 3 (a) and 3 (b) of article 7 the term "powers"by the term "full powers".

32. In the English and Spanish versions of the article,subparagraph 1 (a) followed the terminology of the 1969Vienna Convention, while subparagraph 3 (a) used thephrase "that person produces". In the French version,both subparagraphs contained the words "si elle pro-duit", which referred back to the opening wordsof paragraph 3. In resolving those discrepancies, theDrafting Committee, desiring to avoid the unfortunateimplications of the use of the strictly masculine "he"in English and at the same time to give greater preci-sion to the texts in most of the other languages, haddecided to use the words "that person" in both sub-paragraphs 1 (a) and 3 (a). In the French version, thewords "si elle produit" had been replaced by "si cettepersonne". In the Spanish version, there was no needto insert "la persona" as the construction of the in-troductory part of the paragraph made it absolutelyclear that the subject was "una persona".

33. In line with the new formulation of subpara-graphs 1 (b) and 2 (b), which differed from that in

the 1969 Vienna Convention, minor language align-ments had been made in those paragraphs, "con-cerned" having been rendered in the French version as"concernes" and in the Spanish version as "de que setrate".34. In subparagraph 2 (b), the expression "of States inwhich international organizations participate", foundin the original text, had been omitted in the light of thetext of paragraph 2 of article 9 referred to the DraftingCommittee.35. It had been decided that the text of subpara-graph 3 (b) might be lightened with no loss of clarity ormeaning by the deletion of the phrase "or, as the casemay be, of the international organizations concerned".36. Finally, minor drafting adjustments had beenmade, as well as grammatical corrections to certainlanguage versions.


Article 8 (Subsequent confirmation of an act performedwithout authorization)

37. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that the article, referred directlyto the Committee by the Conference, had undergonechanges only in the Arabic version, where the word"authorization" had been rendered more precisely anda necessary deletion had been made.



38. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that paragraph 1 of the article hadbeen referred to the Drafting Committee directly bythe Conference. No changes had been made in thatparagraph.39. Paragraph 2, on the other hand, had been referredto the Committee of the Whole for substantive con-sideration. Adopted by that body in a form worked outin the framework of informal consultations held underthe chairmanship of the President of the Conference, ithad then been referred to the Drafting Committee.40. The text of the paragraph had subsequently under-gone slight adjustments to bring out more clearly theintended meaning. It had been divided into two sen-tences, the second of which began "If, however, noagreement is reached on any such procedure, the adop-tion of the text shall take place . . .". No other changeshad been made in paragraph 2.


Article 10 (Authentication of the text)

41. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that the article had been referreddirectly to the Drafting Committee by the Conference.No change had been made in the article except forminor grammatical corrections made to the Englishversion in order to align it with the other versionsand with the 1969 Vienna Convention on the Law ofTreaties.



Article 11 (Means of expressing consent to be bound bya treaty)

42. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that paragraph 1 of the article hadbeen referred directly to the Drafting Committee by theConference. Paragraph 2 had been referred to the Com-mittee of the Whole for substantive consideration, afterwhich it had been referred to the Drafting Committee inthe form in which it had appeared in the basic proposal.43. The Drafting Committee had made no changes ineither paragraph.


Article 12 (Consent to be bound by a treaty expressedby signature)

Article 13 (Consent to be bound by a treaty expressedby an exchange of instruments constituting a treaty)

Article 14 (Consent to be bound by a treaty expressedby ratification, act of formal confirmation, accept-ance or approval)

Article 15 (Consent to be bound by a treaty expressedby accession)

Article 16 (Exchange or deposit of instruments of rati-fication, formal confirmation, acceptance, approvalor accession)

Article 17 (Consent to be bound by part of a treaty andchoice of differing provisions)

Article 18 (Obligation not to defeat the object and pur-pose of a treaty prior to its entry into force)

44. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that draft articles 12 to 18 had beenreferred directly to the Drafting Committee by the Con-ference and had not been the subject of substantiveconsideration by the Committee of the Whole.45. Article 12 had been simplified by the combinationof paragraphs 1 and 2 in a single paragraph, as a result ofthe deletion of the term "powers" by the Committee ofthe Whole. Since "full powers" now applied to bothrepresentatives of States and representatives of inter-national organizations, the same rule would have beenstated in former paragraphs 1 and 2. It was thus onlylogical to combine the two paragraphs into one by sim-ply referring to "the consent of a State or of an inter-national organization", "that State or that organiza-tion", and "the State or organization". Finally, sincethe new combined paragraph referred to both catego-ries of treaties, it was considered appropriate to use forsubparagraph (b) the version appearing in the formersubparagraph 2 (b), thus covering all possibilities.

46. In the text of subparagraph 2 (a) the words "of thetreaty" had been inserted following "signature" in alllanguage versions, in order to align the text with that ofthe 1969 Vienna Convention. A linguistic alignment hadbeen made in the final part of subparagraph 2 (b) in theSpanish version, and some stylistic improvements hadbeen made in the Arabic version.

47. Article 13 had remained basically unchanged,with the exception of the opening phrase, which hadbeen lightened and now read "The consent of States orof international organizations . . .".48. Article 14 had been changed in only one place:subparagraph 1 {d) now referred to "full powers".Grammatical and stylistic improvements had beenmade in the Arabic text.49. Articles IS and 16 had been maintained withoutchange.50. Article 17, as now submitted, reflected an attemptby the Drafting Committee to simplify the text, withno loss of substantive meaning, by combining para-graphs which contained the same rule and by adjustingthe rather cumbersome formula which had been used inthe original version of paragraph 1. The new version ofthe article comprised a combination in its paragraph 1of former paragraphs 1 and 2, and in its paragraph 2,of former paragraphs 3 and 4. Paragraphs 1 and 2 nowapplied to both categories of treaties. In addition,the formula "the other contracting States and the con-tracting organizations or, as the case may be, the othercontracting organizations and the contracting States"originally found in paragraph 1 of the International LawCommission's draft had been found not only burden-some but not altogether accurate, in view of the manypossible combinations and permutations of treaty part-ners. In certain cases there might be no other con-tracting States or no other contracting organizations. Inorder to avoid those complexities and to make the textclearer, the Drafting Committee had agreed to refersimply to "the contracting States and contracting or-ganizations or, as the case may be, the contractingorganizations".

51. Finally, article 18 remained as drafted in the basicproposal.

Articles 12 to 18 were adopted without a vote.

Article 19 (Formulation of reservations)

52. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, recalled that the Committee of theWhole had adopted the text of the basic proposal forthe article in an amended form and had referred to theDrafting Committee.53. As referred, article 19 had comprised two para-graphs which provided for the same rule to apply whena State or international organization formulated a res-ervation on expressing its consent to be bound by atreaty.54. In view of that fact, and in an effort to lighten thetext, the Drafting Committee had agreed to combine thetwo paragraphs, so that the opening words now referredto "A State or an international organization" and "for-mally confirming" had been inserted following "ratify-ing". That change also aligned article 19 with otherprovisions of the draft convention which referred to thevarious means whereby a State or an organization ex-pressed its consent to be bound.55. Following remarks by Mr. KADIRI (Morocco)and Mr. RADY (Egypt), he said that the figure " 1 "should be deleted from the French and Arabic versions,


where the introductory paragraph had been inadver-tently so numbered.56. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that in the opinion of his delegation aninternational organization had no right to formulate areservation, not only in cases where the reservationwas incompatible with the object and purpose of thetreaty to which it was a party but also in those caseswhere the reservation was incompatible with the con-stituent instrument of the organization or with otherexisting and legally binding instruments.


Article 20 (Acceptance of and objection to reser-vations)

57. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that the article had been referred tothe Drafting Committee as amended by the Committeeof the Whole. In addition, the Drafting Committee hadbeen requested to examine whether the inclusion inparagraph 2 of the words "the limited number of nego-tiating States and negotiating organizations or of ne-gotiating organizations, as the case may be, and",which had been proposed in an amendment submittedin the Committee of the Whole (see A/CONF. 129/C. 1/L.33, para. 1), would improve the drafting. The Draft-ing Committee had felt that the insertion would indeedimprove the text, bringing it closer into line with that ofthe 1969 Vienna Convention. Those words had conse-quently been inserted, duly adjusted to match similarexpressions found in the aforementioned Conventionand expressions found throughout the draft.58. For reasons similar to those he had mentionedearlier, subparagraph 4 (c) had been slightly adjusted.The phrase "one other contracting State or one con-tracting organization or, as the case may be, one othercontracting organization or one contracting State" hadbeen replaced by the simple formula "one contractingState or one contracting organization".59. Finally, it had been decided that some adjust-ments were needed in the English and Russian versionsof subparagraph 4 (a), the end of which had conse-quently been changed in both languages to read ' 'for thereserving State or organization and for the acceptingState or organization".60. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that, in the opinion of his delegation,paragraph 3 of article 30 unjustifiably limited the sov-ereign right of States to formulate reservations. Suchreservations, moreover, could not be made subject toacceptance by any organ of an international organiza-tion. Furthermore, paragraph 4 unjustifiably extendedthe right of international organizations to object to res-ervations formulated by States. An international organ-ization could object to a reservation only if to do so laywithin its competence.


Article 21 (Legal effects of reservations and of objec-tions to reservations)

Article 22 (Withdrawal of reservations and of objec-tions to reservations)

Article 23 (Procedure regarding reservations)

Article 24 (Entry into force)

Article 25 (Provisional application)

Article 26 (Pacta sunt servanda)

61. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that article 21 remained un-changed, with the exception of the replacement of thewords "author of the reservation" in paragraph 3 ofthe English and Russian versions by the words "thereserving State or organization".62. Subparagraph 3 (a) of article 22 had been changedslightly, for the reasons he had indicated earlier. Thus,the phrase "another contracting State or a contractingorganization or, as the case may be, another con-tracting organization or a contracting State" had beenchanged to read simply "a contracting State or a con-tracting organization1'.63. Article 23 remained unchanged, except for a cor-rection in the English version of paragraph 2, where atthe end of the first sentence, the words "by a treaty"had been replaced by "by the treaty".64. No changes had been made in article 24, withthe exception of a correction in the French version ofthe introductory words of paragraph 3, where the word"autre", erroneously inserted before "organisationInternationale" in the basic proposal, had been re-moved.65. The text of paragraph 1 of article 25 remainedunchanged. Paragraph 2, however, had been adjustedfor the reasons he had indicated previously. The in-troduction in the basic proposal of the complexitiesrequired by the attempt to cover all "other" treatypartner permutations had led to a heavy text which hadnot, in fact, covered all possible situations. As thetext referred to treaty partners being notified, the clearand obvious meaning was that it referred to notifying"other" treaty partners. Thus, the original phrase inparagraph 2, "the other States and the organizations or,as the case may be, the other organizations and theStates between which" had been changed to read sim-ply "the States and organizations with regard towhich".66. Article 26 introduced part III of the conventionand concerned pacta sunt servanda. No changes hadbeen made in that all-important article.67. Mr. CANCADO TRINDADE (Brazil) said that,for the record and for the purpose of interpretation, hisdelegation wished to state that articles 24 and 25, as wellas article 12, of both the 1969 Vienna Convention on theLaw of Treaties and the present draft articles adoptedby the Drafting Committee, as contained in documentA/CONF. 129/11, should in its view be considered, inrespect of States, against the background of the generalprinciple of parliamentary approval of treaties and ofthe practice ensuing therefrom; but that his delegationalso recognized the residuary nature of those provi-sions of both the 1969 Convention and the present draftarticles as adopted by the Drafting Committee.



Article 27 (Internal law of States, rules of internationalorganizations and observance of treaties)

68. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that article 27 of the basic proposalhad been considered substantively by the Committee ofthe Whole, adopted by it and referred to the DraftingCommittee. The latter had made no changes in the text.


Article 28 (Non-retroactivity of treaties)

Article 29 (Territorial scope of treaties)

69. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, recalled that articles 28 and 29 had beenreferred directly to the Drafting Committee by theConference. No changes had been introduced in thosearticles.70. Mr. ALM0D6VAR (Cuba) said that as the pres-ent convention reproduced, with the same number, textand content, article 28 of the 1969 Vienna Conventionon the Law of Treaties, and as no circumstance hadarisen to justify any other course, his delegation nowwished to reiterate the position it had taken at the 13thplenary meeting of the United Nations Conference onthe Law of Treaties on Tuesday, 6 May 1969,' in thevote on article 24 of that Convention, which was sub-sequently renumbered 28 by the Drafting Committee(the numbers of the articles cited being altered as ap-propriate).

71. In amplification of that point, he wished it to berecorded that it was the understanding of the delegationof Cuba that the rule contained in article 28 could beinterpreted only in the sense that if an act or fact orsituation which took place or arose prior to the entryinto force of a treaty, including the present convention,continued to occur or exist after the entry into force ofthe treaty, it would be subject to its provisions. There-fore, the principle of non-retroactivity was never vio-lated by the application of a treaty, including the pres-ent convention, to situations arising or existing whenthe treaty entered into force and subsequent to theentry into force of the treaty, including the presentconvention, even if they first began at an earlier date.

72. The delegation of Cuba interpreted the legal effectof article 28 as having the meaning and scope inferredfrom paragraph (3) of the International Law Commis-sion's commentary to article 24—later 28—of the 1969Vienna Convention,4 which, in the present Convention,had the same number, text and content.

Articles 28 and 29 were adopted without a vote.

Article 30 (Application of successive treaties relating tothe same subject-matter)

73. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, recalled that paragraphs 1 to 5 of arti-cle 30 had been referred directly to the Drafting Com-mittee by the Conference. Paragraph 6, however, had

5 Ibid., 13th plenary meeting, paras. 41 to 47.* Ibid. (United Nations publication, Sales No. E.70.V.5), p. 32.

been substantively considered by the Committee of theWhole.

74. Concerning paragraph 6, the Committee of theWhole had approved the idea underlying the Inter-national Law Commission's draft and two amendmentsthereto (A/CONF.129/C.1/L.44 and L.45). All threetexts had been referred to the Drafting Committee withthe request that it examine the formulation and place-ment of the ideas contained therein.

75. The Drafting Committee had decided, in line withone of the amendments referred to it, that it was pref-erable to spell out the meaning of the reference in theCommission's text to Article 103 of the Charter of theUnited Nations. It had also been agreed that it wouldnot be appropriate to include both a cross-reference toArticle 103 and a paraphrase of its contents. Rather, itssignificance should be clearly set out, without cross-reference. The text now before the Conference hadbeen drafted along the lines of one of the amendmentsreferred to the Committee, but adjusted for purposes ofclarity and precision. He pointed out that the use inmost language versions of the words "the fact that"was in no way intended to lessen the solemn nature ofthe legal rule laid down in Article 103 of the Charter ofthe United Nations. Rather, it was intended to signifythe existence of a legal rule, a legal obligation.

76. As to the placement of the provision, it had beenthought that it would unduly overburden the text ofparagraph 1 if added there. The Committee had there-fore retained the provision as paragraph 6, it beingclearly understood that its placement there could not beinterpreted as detracting from the overriding impor-tance of the provision.

77. In the case of the other five paragraphs of thearticle no changes had been made, with the exception ofa lightening of the phrase at the end of paragraph 5, forreasons which he had already explained. The words"towards another State or an organzation or, as thecase may be, towards another organization or a State"had been replaced by "towards a State or an organiza-tion". In addition, the words "not party to that treaty"which also appeared at the end of paragraph 5 of thebasic proposal but which did not appear in the 1969Vienna Convention, had been deleted as constituting anunnecessary departure from that Convention.

78. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that, in the opinion of his delegation, arti-cle 30 did not reflect the full complexity of the situationthat might arise in the application of successive treaties.With regard to paragraph 3, his delegation consideredthat if the operation of the earlier treaty was not termi-nated as a consequence of the conclusion of a newtreaty on the same subject, the provisions of the earliertreaty must be applied to the extent that they created aregime no less—i.e., more—favourable than that es-tablished by the later treaty.


Article 31 (General rule of interpretation)

Article 32 (Supplementary means of interpretation)


Article 33 (Interpretation of treaties authenticated intwo or more languages)

Article 34 (General rule regarding third States and thirdorganizations)

79. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, recalled that articles 31 to 34 had beenreferred directly to the Drafting Committee by the Con-ference. No changes had been introduced in the texts.Articles 31 to 34 were adopted without a vote.

Article 38 (Rules in a treaty becoming binding on thirdStates or third organizations through internationalcustom)

80. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, recalled that article 38 had been con-sidered substantively by the Committee of the Whole,which had adopted the International Law Commis-sion's draft and had referred it to the Drafting Commit-tee. The latter had made no changes in the text.81. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that in the opinion of his delegation acustomary rule of international law became binding ona State only in cases where that State recognized it assuch. It was consequently not binding on a State whichdid not recognize it as binding.


Article 40 (Amendment of multilateral treaties)

Article 41 (Agreements to modify multilateral treatiesbetween certain of the parties only)

Article 42 (Validity and continuance in force of treaties)

Article 43 (Obligations imposed by international lawindependently of a treaty)

Article 44 (Separability of treaty provisions)

82. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that articles 40 to 44 had beenreferred directly to the Drafting Committee by the Con-ference.83. In article 40, the long phrase in paragraph 2 of theoriginal proposal which read "to all the contractingStates and contracting organizations or, as the casemay be, to all the contracting organizations" had notbeen deemed necessary. It had been replaced by thesimpler formula "to all the contracting States and allthe contracting organizations". In paragraph 4, for thesake of clarity, the words "any party" at the beginningof that paragraph of the basic proposal had been re-placed by the 1969 Vienna Convention wording "anyState or international organization already a party".84. The only change made in article 41 was the addi-tion of commas in the appropriate places in certainlanguage versions to bring those versions into line withthe 1969 Vienna Convention.85. Two members of the Drafting Committee hadexpressed reservations with regard to article 42 and

article 44, paragraph 5, because of their doubts con-cerning the concept of jus cogens in articles 53 and 64.One member had also voiced doubt concerning the useof the word "termination" in the Spanish version ofthose articles and various other articles.86. Mr. DELON (France), reiterating his delegation'sreservation with regard to article 44 and particularlyparagraph 5 thereof, said that if that paragraph were putto the vote his delegation would vote against it. It wouldnot, however, oppose the adoption of article 44 byconsensus, but would be unable to join in that con-sensus.


Article 46 (Provisions of internal law of a State andrules of an international organization regarding com-petence to conclude treaties)

87. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that article 46 had received sub-stantive consideration in the Committee of the Whole,which had adopted the International Law Commis-sion's text and had referred it to the Drafting Commit-tee together with two amendments (A/CONF.129/C.1/L.48/Rev.l and L.52).88. One issue raised by those amendments waswhether to revert to the wording of article 46, para-graph 2, of the 1969 Vienna Convention in draftingparagraphs 2 and 4 of article 46 of the basic proposal,thus introducing the concept of conduct in accordancewith normal practice and in good faith, which did notappear in the International Law Commission's draft,although several speakers had expressed doubtwhether there could be said to exist a "normal practiceof international organizations" in the matter. It hadbeen recognized, however, that such a practice mightwell develop in the future and that such developmentsshould not be precluded. A text had therefore beendrafted which referred to "the normal practice of Statesand, where appropriate, of international organiza-tions". It had then been decided to combine para-graphs 2 and 4 in one paragraph covering both Statesand international organizations, while redrafting themalong the lines suggested in the amendments and also totake account of the reference to "normal practice" towhich he had referred. Certain language versions hadbeen brought even more closely into line with the word-ing of the 1969 Vienna Convention, and former para-graph 3 had been renumbered paragraph 2.


Article 47 (Specific restrictions on authority toexpress the consent of a State or an internationalorganization)

Article 48 (Error)

Article 49 (Fraud)

Article 50 (Corruption of a representative of a State orof an international organization)

Article 51 (Coercion of a representative of a State orof an international organization)


Article 52 (Coercion of a State or of an internationalorganization by the threat or use of force)

Article 53 (Treaties conflicting with a peremptory normof general international law (jus cogens))

Article 54 (Termination of or withdrawal from a treatyunder its provisions or by consent of the parties)

Article 55 (Reduction of the parties to a multilateraltreaty below the number necessary for its entry intoforce)

89. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that articles 47 to 55 had beenreferred directly to the Drafting Committee by the Con-ference, and certain changes had been made with a viewto simplifying the text, in keeping with previous arti-cles. Thus, the phrase at the end of article 47 reading:"to the other negotiating States and negotiating organ-izations or, as the case may be, to the other negotiatingorganizations and negotiating States", had been re-placed by "to the negotiating States and negotiatingorganizations". Similarly, in article 54, paragraph (b),the phrase "with the other contracting States and theother contracting organizations or, as the case may be,with the other contracting organizations" had beenreplaced by "with the contracting States and con-tracting organizations".

90. Certain grammatical corrections had been made insome of the articles, such as article 48, where, in theSpanish text, the word "dieran" had been replaced by"diera".91. The title of article 52 had been brought into linewith the articles immediately preceding by the additionof the words "of a State or of an international organiza-tion", after "Coercion".92. One member of the Drafting Committee hadexpressed reservations in respect of the contents ofarticles 48 to 51, while two members had expressedreservations with respect to the underlying concept ofarticle 53 relating to jus cogens.

93. Mr. DELON (France) said that his delegationwished to reiterate the reservation it had expressed inthe Drafting Committee with respect to article 53,which it opposed because it did not agree with therecognition that article gave to jus cogens. His delega-tion would not oppose a consensus on the article, butwould not join in that consensus.

94. Mr. GUNEY (Turkey), referring to article 53, saidthai jus cogens was still a highly controversial conceptwhich raised the fundamental question of how to recog-nize the scope and content of a peremptory norm ofgeneral international law. It was not enough to say thatsuch norms were recognized by the international com-munity as a whole.

95. At the 1969 Vienna Conference his delegation hadfully shared the concern which had been expressedregarding the imprecision of the concept of jus cogensand the interpretations to which it could give rise, andhad entered serious reservations in that regard. Thestability and certainty of treaty relations dictated that

any exception to the pacta sunt servanda rule should beformulated with care and in unambiguous and detailedterms. There had, however, been a divergence of viewssince 1969 regarding the nature of norms of jus cogens,which it had not been possible to define. The inter-national community and international law had notreached the stage where a clear demarcation line couldbe drawn between peremptory and other norms. The1969 Vienna Convention had failed in so far as it hadnot established the precise content of a peremptorynorm of international law, a breach of which could haveextremely serious effects, such as, for instance, ren-dering international agreements unlawful irrespectiveof the will of the parties which had concluded them.

96. As drafted, article 53 could be likened to an articlein a penal code that provided for punishment but did notspecify which acts would constitute offences. Conse-quently, while his delegation would not oppose anyconsensus or agreement that might be reached on arti-cle 53, it wished, for the reasons he had stated, todissociate itself from any such consensus or agreement.

97. Mr. MUTZELBURG (Federal Republic of Ger-many) said that his delegation was prepared to join in aconsensus on article 53 on the clear understanding thatits agreement to do so was inextricably linked with thefinding by the Conference of a satisfactory solution tothe problem of the peaceful settlement of disputes. Ifhis delegation was incorrect in its assumption that sucha solution could be found, the basis on which its ac-ceptance had been founded would no longer exist and itwould have to draw the necessary conclusions.


Article 56 (Denunciation of or withdrawal from a treatycontaining no provision regarding termination, de-nunciation or withdrawal)

98. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that article 56 had been consideredsubstantively by the Committee of the Whole. Thebasic proposal for the article had been adopted and hadbeen referred to the Drafting Committee (A/CONF. 129/DC/10). The only change introduced by the DraftingCommittee was the replacement of "puede" by"pueda" in paragraph 1 (b) of the Spanish text to bringthe wording into line with that of the 1969 Vienna Con-vention.

99. Mr. RAMADAN (Egypt) said that his delega-tion wished to enter a reservation with respect to para-graph 1 (b) of the article.

100. Mr. NETCHAE V (Union of Soviet Socialist Re-publics) said that in the opinion of his delegation, de-nunciation could take place only when the right ofdenunciation was stipulated in the treaty and only whenrecourse was had to it in accordance with the terms andconditions of the treaty. There was in fact no such thingas implicit denunciation.


Article 57 (Suspension of the operation of a treaty un-der its provisions or by consent of the parties)


Article 58 (Suspension of the operation of a multilateraltreaty by agreement between certain of the partiesonly)

Article 59 (Termination or suspension of the operationof a treaty implied by conclusion of a later treaty)

Article 60 (Termination or suspension of the operationof a treaty as a consequence of its breach)

101. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that articles 57 to 60 had beenreferred directly to the Drafting Committee by the Con-ference.102. Article 57 had been lightened without loss ofmeaning by the replacement of the phrase in subpara-

graph (b) of the basic proposal reading "with the othercontracting States and the other contracting organiza-tions or, as the case may be, with the other contractingorganizations'1 by "with the contracting States andcontracting organizations".

103. In the Spanish version of the three subpara-graphs of paragraph 2 of article 60, the word "autor"following "e/ estado" had been deleted and the word"autora", following' 'organization international'1' hadbeen replaced by "autor", in line with the text of arti-cle 20, subparagraphs 4 (a) and (b).



6th plenary meetingWednesday, 19 March 1986, at 4.25 p.m.



[Agenda item 11] (continued)



TEXTS PROPOSED BY THE DRAFTING COMMITTEE(continued)

1. The PRESIDENT invited the Chairman of theDrafting Comittee to continue his presentation of thatCommittee's report (A/CONF. 129/11 and Add.l) andthe Conference to consider it.

Article 61 (Supervening impossibility of performance)

2. Mr. AL-KHASAWNEH, Chairman of the DraftingCommittee, referring to document A/CONF. 129/11,said that the Committee of the Whole had consideredarticle 61 substantively. It had adopted the textproposed by the International Law Commission(A/CONF. 129/4) and had referred it to the DraftingCommittee. The latter had made no change in the draftarticle.


Article 63 (Severance of diplomatic or consular re-lations)

Article 64 (Emergence of a new peremptory norm ofgeneral international law (jus cogens))

3. Mr. AL-KHASAWNEH, Chairman of the DraftingCommittee, said that articles 63 and 64 had been re-ferred directly by the Conference to the Drafting Com-mittee, which had recommended no changes in thosedraft articles. However, reservations previously madein connection with the concept of jus cogens had beenreiterated with regard to article 64 by two members ofthe Drafting Committee.

4. Mr. DELON (France) said that his delegationwished to reiterate the reservation it had expressed inrespect of article 53 in connection with the concept ofjus cogens (5th plenary meeting). Although his delega-tion would not oppose the adoption of article 64 byconsensus, it did not wish to be associated with thatconsensus.

5. Mr. GUNEY (Turkey) said that his delegationwished to reiterate in respect of article 64 the reserva-tion it had expressed previously in respect of article 53in connection with the concept of jus cogens (ibid.), asthe reservation applied to both articles. While his del-egation would not oppose agreement in the Conferenceto adopt article 64 without a vote, it disassociated itselffrom such agreement.

Articles 63 and 64 were adopted without a vote.

Article 67 (Instruments for declaring invalid, termi-nating, withdrawing from or suspending the opera-tion of a treaty)

Article 68 (Revocation of notifications and instrumentsprovided for in articles 65 and 67)

Article 69 (Consequences of the invalidity of a treaty)

Article 70 (Consequences of the termination of a treaty)


Article 71 (Consequences of the invalidity of a treatywhich conflicts with a peremptory norm of generalinternational law)

Article 72 (Consequences of the suspension of theoperation of a treaty)

6. Mr. AL-KHASAWNEH, Chairman of the DraftingCommittee, said that articles 67 to 72 had been referredto the Drafting Committee by the Conference.7. In article 67, the final word of paragraph 2,"powers", had been replaced by "full powers", and apunctuation error in the English version of paragraph 2had been corrected by the removal of the comma after"paragraph 2".8. No change had been made to article 68.9. In article 69, subparagraph 2 (a), the French ver-sion had been aligned with the French text of the 1969Vienna Convention on the Law of Treaties' by addingthe word "pour" after " d'ttablir".10. In article 70, in the French version of subpara-graph 1 (b) a comma had been inserted after "des par-ties" to align the text with that of the 1969 ViennaConvention.11. No changes had been introduced in article 71.However, reservations had been expressed because ofthe references in that text to articles 53 and 64 dealingwith the concept of jus cogens, and also in connectionwith the use of the word "terminacidn" in the Spanishversion.12. No change had been made in article 72, with theexception of the insertion in subparagraph 1 (a) of theEnglish version of the definite article "the" before"suspension", in order to align the wording with that inthe 1969 Vienna Convention.13. Mr. DELON (France) said that, as article 71 waslinked with articles 53 and 64, his delegation wishedto reiterate with respect to article 71 the reservationwhich it had expressed at the previous meeting and thismeeting in respect of articles 53 and 64. While hisdelegation would not oppose the adoption of article 71by consensus, it could not join in such a consensus, forthe reasons it had already given.

Articles 67 to 72 were adopted without a vole.

Article 74 (Questions not prejudged by the presentConvention)

14. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that the present article 74 hadbeen referred to the Committee of the Whole for sub-stantive consideration. The Committee of the Wholehad amended paragraph 1 of the text of the basic pro-posal and had then adopted the article, as amended,and had referred it to the Drafting Committee. Subse-quently, after the Committee of the Whole had agreedat its 28th meeting to delete article 36 bis, that Commit-tee had agreed to include in former article 73, now

1 See Official Records of the United Nations Conference on theLaw of Treaties (United Nations publication, Sales No. E.70.V.5),p. 287.

article 74, a paragraph 3 along the lines proposed in anamendment (A/CONF.129/C.1/L.65) submitted to thatCommittee, it being understood that the Drafting Com-mittee would review the wording of the new para-graph 3, as well as the title of article 74.15. The Drafting Committee had not altered the firsttwo paragraphs of the article. However, as a result oforal suggestions made in the framework of the informalconsultations held under the chairmanship of the Pres-ident of the Conference, the Drafting Committee hadmodified the new paragraph 3 to make it read " . . . anyquestion that may arise in regard to the establishment ofobligations and rights for States members of an inter-national organization under a treaty to which that or-ganization is a party".

16. Finally, the Drafting Committee had decided, inthe light of the addition of paragraph 3, to avoid makingan already long title even longer. It therefore recom-mended that the title of article 74 should read simply"Questions not prejudged by the present Convention".17. Mr. PAWLAK (Poland) said that, in his delega-tion's view, paragraph 3 of article 74, which had beenintroduced into the article as a result of the amendmentsubmitted by some international organizations as aform of substitute for the former draft article 36 bisproposed by the International Law Commission, whichhad now been deleted, should not be understood asallowing any possibility of a treaty concluded by aninternational organization producing any legal effectsfor States members of the organization which were notparties to the treaty, unless those States membersexpressly consented to accept the relevant provisionsof the treaty.


Article 75 (Diplomatic and consular relations and theconclusion of treaties)

18. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that article 75 had been referreddirectly to the Drafting Committee by the Conference.It had not been modified except for a change in theSpanish version where, at the beginning of the secondsentence, "La celebracidn de un tal tratado" had beenreplaced by "Tal celebracidn".


Article 76 (Case of an aggressor State)

19. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that article 76, the former arti-cle 75, had been the subject of substantive consi-deration by the Committee of the Whole, which hadadopted the text proposed by the International LawCommission for that article and had referred it tothe Drafting Committee. The Drafting Committee hadmade no changes in the text.20. Mr. BOESEN (Federal Republic of Germany)said that his delegation had made a statementexpressing its understanding of article 76 at the timeof its consideration in the Committee of the Whole(23rd meeting). He did not propose to repeat thatstatement but, in drawing the attention of the Con-


ference to it, reaffirmed his delegation's understandingof the article.


Article 77 (Depositaries of treaties)

21. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that article 77 had been referreddirectly to the Drafting Committee by the Conference.No changes had been made by the Committee, exceptfor the correction of a typographical error in the Rus-sian version.


Article 78 (Functions of depositaries)22. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that this article had been the sub-ject of substantive consideration by the Committee ofthe Whole, which had adopted the International LawCommission's text for the article and had referred it tothe Drafting Committee.23. In subparagraph 1 (a), the reference to "powers"had been deleted and the phrase adjusted along the linesof the 1969 Vienna Convention. In subparagraphs 1 (b),1 (e) and 1 (f), some simplification had been achievedby omitting the phrase "or, as the case may be, theorganizations".24. Finally, in subparagraph 2 (b) the adjective "inter-national" had been inserted before "organizations" tomake it clearer that the international organization con-cerned was the depositary, not the organization re-ferred to in the opening words of the paragraph or insubparagraph 2 (a).


Article 79 (Notifications and communications)

Article 80 (Correction of errors in texts or in certifiedcopies of treaties)

Article 81 (Registration and publication of treaties)

25. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that articles 79,80 and 81 had beenreferred directly to the Drafting Committee by the Con-ference.26. Article 79 had been somewhat lightened in sub-paragraph (a) by replacing the phrase' 'to the States andorganizations or, as the case may be, to the organiza-tions" by the phrase "to the States and organizations".Some grammatical corrections had also been made invarious language versions.27. The only adjustment to article 80 was in the En-glish version where, near the end of the introductorypart of paragraph 1, the phrase "unless the said Statesand organizations" had been replaced by "unless thoseStates and organizations". One member had expresseda reservation with respect to paragraph 5 of article 80.28. No changes had been made in article 81. Onemember had expressed a reservation in respect of thecontents of the article.

Articles 79, 80 and 81 were adopted without a vote.

Titles of parts II to VII and sections thereof

29. Mr. AL-KHASAWNEH, Chairman of theDrafting Committee, said that the Drafting Committeerecommended the adoption of the titles to parts II to VIIand the sections thereof as contained in the basic pro-posal by the International Law Commission.

The titles of parts II to VII and the sections thereofwere adopted without a vote.30. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, drew attention to the further recom-mendations of the Committee contained in documentA/CONF. 129/1 I/Add. 1.

Preamble

31. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, recalled that the Committee of theWhole had been entrusted with the task of consideringthe preamble. It had adopted a text worked out in theframework of consultations held (A/CONF. 129/C.l/L.77) and had referred that text to the Drafting Com-mittee, requesting it to examine carefully the variousparagraphs and the interrelationships between themand to consider the most appropriate ordering of theparagraphs.

32. The Committee had examined the draft referred toit with care, and had decided on a new ordering of theparagraphs in an attempt to set out in a logical andcoherent fashion the various elements of the preamble.The order of the third and fourth paragraphs of the textas referred to the Committee had been reversed; whathad previously been the fifteenth paragraph had beenmoved up to become the new sixth paragraph; theformer eighth paragraph had been moved to its cus-tomary position as the last preambular paragraph; andthe order of the former thirteenth and fourteenth para-graphs had been reversed.

33. As far as the drafting of the paragraphs was con-cerned, some changes had been made in order to alignthe texts with corresponding paragraphs of the 1969Vienna Convention, while other changes had beenmade in order to align the various language versions. Insome places the language had been made more precise,and minor grammatical corrections had also been in-troduced.

34. In order to save the time of the Conference, hewould allude to only some of those changes. In thesecond preambular paragraph, in order to bring outmore clearly the intended meaning, the phrase origi-nally worded "Recognizing the ever increasing impor-tance of treaties as a source of international law andtheir consensual nature" had been changed to "Rec-ognizing the consensual nature of treaties and theirever-increasing importance as a source of internationallaw".

35. In the fifth preambular paragraph, the openingphrase "Bearing in mind" had been replaced by "Be-lieving that", to match a similar preambular paragraphin the 1969 Vienna Convention. The final phrase of thatparagraph had also been modified. The original text,beginning "as a means of ensuring . . .", had beensimplified and adjusted to give it a slightly wider ambit,


so that it read "are means of enhancing legal order ininternational relations and of serving the purposes ofthe United Nations".

36. In the Spanish version of the eleventh preambularparagraph, the word "juridica" had been deleted inorder to align the text with other language versions.Other minor grammatical adjustments had been madein various paragraphs of the Spanish version.

37. The eleventh preambular paragraph now referred,in all language versions except the Russian, to "inter-national organizations", i.e., in the plural.

38. In the fourteenth preambular paragraph, theFrench and Spanish versions had been brought into linewith the other language versions by the use of the words"devraient" and "deberiari" respectively.

39. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) asked whether the word "nations", as em-ployed in the ninth preambular paragraph, was in-tended to signify States or peoples.

40. The PRESIDENT said it was his understandingthat the word was used in the paragraph in the samesense as in the Charter of the United Nations.

41. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, concurred with that understanding.

42. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that notwithstanding that explanation, andhis own delegation's understanding that for the pur-poses of the Charter the United Nations consisted ofStates, the word "nation" could be interpreted dif-ferently in English and in Russian. Provided, however,that other delegations agreed that in the present con-text the word was also synonymous with "States", hewould not dwell further on the matter.

43. The PRESIDENT said he understood the wordingadopted by the Drafting Committee to have originatedin a proposal submitted in English by Czechoslovakia,the German Democratic Republic and the UkrainianSoviet Socialist Republic (A/CONF.129/C.1/L.72),which had contained the phrase "peaceful co-operationamong nations, whatever their constitutional and socialsystems".

44. Mr. VASSILENKO (Ukrainian Soviet SocialistRepublic) said that in the eleventh preambular para-graph, in all language versions except the Russian, thetext referred to "international organizations", i.e., inthe plural, with a collective connotation. It was hisrecollection, however, that the discussion had broughtout—in conformity with what was indeed the case—thedistinctive, individualized nature of the capacity ofinternational organizations to conclude treaties; thesingular form used in the Russian version was intendedto reflect that reality.

45. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that he did not understand thereference to international organizations in the plural asimplying that their capacity to conclude treaties did notvary from one organization to another.

The preamble was adopted without a vote.

Article 3 (International agreements not within thescope of the present Convention)

46. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that article 3 had been consideredsubstantively by the Committee of the Whole, whichhad adopted a text worked out in the framework ofconsultations held under the chairmanship of the Pres-ident of the Conference (A/CONF.129/C.1/L.75) andhad referred that text to the Drafting Committee.

47. Only minor changes had been made by the Draft-ing Committee. The standard change from "presentarticles" to "present Convention" or simply "Conven-tion", depending upon the 1969 Vienna Conventionmodel, had been introduced. Also, in the English ver-sion, the word "or" had been omitted from the con-clusion of subparagraphs (i) and (ii) but inserted at theend of subparagraph (iii).


Article 35 (Treaties providing for obligations for thirdStates or third organizations)

Article 36 (Treaties providing for rights for third Statesor third organizations)

Article 37 (Revocation or modification of obligationsor rights of third States or third organizations)

Article 39 (General rule regarding the amendment oftreaties)

48. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that articles 35, 36, 37 and 39 hadbeen referred directly to the Drafting Committee by theConference. The drafting of two of those articles hadbeen simplified. Article 35, initially composed of twoparagraphs, had been made a single paragraph by theDrafting Committee, so that it now dealt, in a singleprovision, with obligations arising both for a third Stateand for a third organization. Similarly, in article 37,paragraphs 1 and 2 of the basic proposal had beencombined in a single paragraph 1, and paragraphs 3and 4 of the basic proposal in a single paragraph 2.Former paragraph 5 had been re-numbered paragraph 3accordingly.

49. In the International Law Commission's basicproposal for all four articles the adjective "relevant"had qualified the expression "rules of the [or that]organization". The Committee of the Whole had de-cided, however, to delete the word "relevant" in thosearticles, leaving it open for the Drafting Committeeto recommend the re-insertion of that word should itsee an imperative necessity for doing so. Althoughsome members of the Drafting Committee had thoughtit preferable to maintain the word "relevant", ithad eventually been agreed that there existed no ab-solute need for its conclusion. Thus, in articles 35, 36,37 and 39, the word "relevant" did not appear as qual-ifying "rules of the organization".

50. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that in the opinion of his delegation, arti-


cle 36 did not in any way affect the rights of Statesbenefiting from a most-favoured-nation regime.

Articles 35, 36, 37 and 39 were adopted without avote.

Article 45 (Loss of a right to invoke a ground for in-validating, terminating, withdrawing from or sus-pending the operation of a treaty)

51. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that article 45 had been substan-tively considered by the Committee of the Whole,which had adopted the text proposed by the Inter-national Law Commission and had referred it to theDrafting Committee together with two amendments(A/CONF.129/C.1/L.46 and L.47).

52. The Drafting Committee had discussed the articleand the proposed amendments exhaustively. Great ef-forts had been made to arrive at generally acceptableversions of the amendments, but it had unfortunatelynot been possible to reach any agreement on incorpora-tion of the amendments in the draft article. The Com-mittee had therefore considered that the wisest coursewas to adopt the text of the article as proposed by theInternational Law Commission. It was that text whichwas now before the Conference.

53. Mr. ALMODOVAR (Cuba) said that, in view ofthe essential need for certainty in the expression ofState consent, his delegation considered that a Statecould only be deemed to have acquiesced in the validityof a treaty or in its maintenance in force or in operation,as the case might be, if that State had expressly soagreed as provided in subparagraph 1 (a) of article 45.His delegation considered, moreover, that, in the con-text of the progressive development of internationallaw, the practice set forth in subparagraph 1 (b) had notbeen sufficiently established to be included as a legalrule in that article.


Article 62 (Fundamental change of circumstances)

54. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that article 62 had been consid-ered substantively by the Committee of the Whole.That Committee had adopted the text of the basic pro-posal for the article and had referred it to the DraftingCommittee, together with two drafting amendments(A/CONF.129/C.1/L.57 and L.59).

55. The Drafting Committee had examined the articleand the two amendments in depth, and great efforts hadbeen made to achieve a generally acceptable version ofthe amendments. Unfortunately, it had not proved pos-sible to reach agreement on the question of incorpo-rating the amendments in the text.

56. The Committee had therefore deemed it wisestto adopt the International Law Commission's text forarticle 62. The only change the Drafting Committeehad made in the text was the deletion of a comma inparagraph 2. Two members of the Drafting Committeehad expressed reservations concerning the article asadopted.

57. Mrs. OLIVEROS (Argentina) said that her del-egation was not satisfied with the wording of article 62.It would have wished the stability of treaties to havebeen guaranteed only for those cases in which it was theStates themselves which determined their boundaries.The language used in the draft convention was notclear, and the earlier commentaries by the InternationalLaw Commission favoured confusion in that connec-tion. Her delegation had been surprised at the deter-mined opposition encountered by its amendment, anopposition which defended anachronistic colonialistpositions. Those out-of-date ideas and that absence oflegal and political realism were incomprehensible.58. Nevertheless, her delegation was glad to have hadan opportunity to provoke an interesting debate and tohear statements at the present Conference to the effectthat a boundary could exist only between States andcould be established only by States. She wished therecord to show that her delegation construed article 62as referring exclusively to the boundaries of Statesdetermined by States.59. Mr. AL JARMAN (United Arab Emirates) con-firmed his delegation's previous statement con-cerning article 62 in the Committee of the Whole(22nd meeting), and placed on record his delegation'sunderstanding that the treaties referred to in the articlewere those establishing boundaries between at leasttwo States and that, if any international organizationswere parties to them, that would of course not be asorganizations establishing those boundaries.60. Mr. CRUZ FABRES (Chile) said that his delega-tion would not oppose the adoption of article 62 byconsensus. It wished to state, however, that it could notassociate itself with such a consensus, because to do sowould be incompatible with the reservation formulatedby Chile concerning article 62 of the 1969 Vienna Con-vention on the Law of Treaties.2

61. Mr. MORELLI (Peru) said that his delegationwould join the consensus on article 62 on the clearunderstanding that the reference to boundaries in thatarticle was to boundaries between States and toboundaries determined by States.62. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) declared his delegation's understanding thatarticle 62 referred to boundaries between States estab-lished by States alone; international organizations hadno role to play in that regard.


Article 65 (Procedure to be followed with respect toinvalidity, termination, withdrawal from or suspen-sion of the operation of a treaty)

63. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that paragraphs 1 and 2, and 4 to 6of article 65 had been referred directly to the DraftingCommittee. Paragraph 3, however, had been the sub-ject of substantive consideration by the Committee ofthe Whole, which had adopted the International Law

2 Ibid. (United Nations publication, Sales No. E.70.V.6),96th meeting, paras. 23 to 32.


Commission's text with an amendment and had re-ferred it to the Drafting Committee.64. The only change made by the Drafting Committeeto paragraph 3 had been the alignment of the variouslanguage versions with the corresponding provisions ofthe 1969 Vienna Convention. Thus, in Spanish "noobstante" had been replaced by "por el contrario".65. As for the five paragraphs referred directly to theDrafting Committee, the only change made in them wasin paragraph 4, where the word "relevant" had beendeleted in accordance with the decision taken on thatquestion by the Committee of the Whole.66. Mr. HERRON (Australia) recalled his delega-tion's statement in the Committee of the Whole duringthe latter's consideration of draft article 65 (ibid.) andthe fact that his delegation had favoured adoption ofthe International Law Commission's draft withoutamendment.

67. In accepting article 65 as now recommended bythe Drafting Committee, his delegation wished to placeon record its understanding regarding the meaning ofparagraph 3, namely that any other party could at anytime object to the invocation by a party of a defect in itsconsent to be bound by a treaty or a ground for im-peaching the validity of a treaty, terminating it, with-drawing from it or suspending its operation. Such otherparty was not limited, as to the time for making objec-tion, to the period referred to in paragraph 2. In con-sequence, the means indicated in Article 33 of the Char-ter of the United Nations for peaceful settlement ofdisputes could be triggered at any time, consistentlywith the priority of obligations contained in the Charter.Furthermore, the liberty of action of the Security Coun-cil under Article 33, paragraph 2, of the Charter re-mained unaffected by any provision of article 65 of thepresent convention.

68. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) drew attention to a typing error in the Russianversion of article 65, an error which he assumed wouldbe corrected by the Secretariat.

69. The PRESIDENT thanked the Soviet Union rep-resentative and assured him that the necessary correc-tion would be made by the Secretariat.


Article 73 (Relationship to the Vienna Convention onthe Law of Treaties)

70. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that the Committee of the Wholehad referred to the Drafting Committee two proposalsfor the inclusion in the draft convention of a new articleconcerning the relationship between the Conventionand the 1969 Vienna Convention, with a view to thepreparation by the Drafting Committee of a consol-idated text. That text was now before the Conference.The Drafting Committee considered that the most ap-propriate place for the new article would be as the firstarticle in part VI, "Miscellaneous Provisions", whichwould entail only a minimal departure from the num-bering of the articles in the 1969 Vienna Convention. Asa consequential amendment, articles 73 to 80 should be

renumbered 74 to 81, with the cross-reference in formerarticle 78 being modified accordingly.71. Mr. ALMODOVAR (Cuba) said that, in acceptingthe reference to the 1969 Vienna Convention in arti-cle 73 and elsewhere in the new convention, his delega-tion wished to reiterate in their entirety—with appro-priate adjustment of article numbers to refer to those ofthat convention—the statements made by the delega-tion of Cuba at the 30th plenary meeting of the UnitedNations Conference on the Law of Treaties, held on19 May 1969, regarding article 77 (later article 4) and atthe 13th plenary meeting of the same Conference, heldon 6 May 1969, regarding article 24 (later article 28) ofthe 1969 Convention, statements which it had reiteratedat the present Conference during the consideration ofdraft articles 4 and 28 (5th meeting).


Title of the Convention

72. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, said that the Drafting Committee re-commended that the title of the Convention should be:"Vienna Convention on the Law of Treaties betweenStates and International Organizations or between In-ternational Organizations".

That recommendation was adopted without a vote.73. Mr. AL JARMAN (United Arab Emirates) ob-served that certain expressions used in the Arabic ver-sion of document A/CONF. 129/1 I/Add. 1 did not ac-cord with the wording adopted in the English version.He proposed to submit his comments in that regard tothe Secretariat with a view to the necessary changesbeing made.74. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, assured the Conference that the neces-sary changes would be made.

Report of the Credentials Committee

75. The PRESIDENT invited the Chairman of theCredentials Committee to introduce the report of theCredentials Committee (A/CONF. 129/10 and Corr.l).76. Mr. HUBERT, Chairman of the Credentials Com-mittee, said that the report of the Credentials Commit-tee required no explanation. However, certain changesneeded to be made in it in order to bring it up to date,changes which were found in document A/CONF. 129/10/Corr.l.77. Paragraph 10 of the report contained a draft res-olution which the Credentials Committee recommen-ded for adoption by the Conference.78. Mr. JOMARD (Iraq) said that he wished to enter areservation on behalf of the States members of the ArabLeague represented at the Conference regarding thecredentials submitted by Israel. Those States did notrecognize the so-called State of Israel, and the creden-tials of Israel, moreover, had been issued in the Cityof Jerusalem, which was under military occupation bythe Israeli entity. The United Nations had condemnedIsrael's efforts to transform occupied Jerusalem into itsown capital in violation of the Charter of the United


Nations and the rules of international law. Accordingly,any act issued and signed by Israel in Jerusalem, in-cluding the credentials it had submitted to the Con-ference, was to be regarded as unlawful.79. MR. SHASH (Egypt) said that Egypt regarded theIsraeli occupation of Arab territories in the West Bank,East Jerusalem, the Gaza Strip, the Golan Heights andthe Lebanese territories as unlawful and a breach of thenorms of international law and of the Charter and res-olutions of the United Nations. It did not recognize theannexation of those occupied Arab territories.80. Mrs. GOLAN (Israel) said that the credentials ofIsrael had been duly examined by the Credentials Com-mittee in accordance with the rules of procedure of theConference and had been accepted by that Committee.Her delegation had been invited to attend the Con-

ference by the Secretary-General of the United Nationsin the same way as the delegation of any other State,and its credentials, having been approved by the Cre-dentials Committee, could not now be questioned byother delegations. As to the other remarks which hadbeen made, they were in the nature of political in-nuendo and had no place at the Conference.

81. The PRESIDENT said that, in the absence of afurther comment, he would take it that the plenarywished to adopt the report of the Credentials Commit-tee (A/CONF. 129/10 and Corr.l), together with theresolution submitted in paragraph 10 thereof.

It was so decided.


7th plenary meetingThursday, 20 March 1986, at 11.05 a.m.


Consideration of the question of the law of treatiesbetween States and international organizations orbetween international organizations, in accordancewith General Assembly resolutions 37/112 of 16 De-cember 1982, 38/139 of 19 December 1983, 39/86 of13 December 1984 and 40/76 of 11 December 1985(A/CONF. 129/4 and A/CONF. 129/9)

[Agenda item 11] {continued)



TEXTS PROPOSED BY THE DRAFTING COMMITTEE{continued)

1. The PRESIDENT invited the Chairman of theDrafting Committee to introduce the final parts ofthat Committee's report (A/CONF. 129/1 l/Add.2 andAdd.3) and the Conference to consider them.

Final provisions

2. Mr. AL-KHASAWNEH, Chairman of the DraftingCommittee, recalled that the Committee of the Wholehad adopted the text of the final provisions appearingin document A/CONF. 129/C.1/L.79, as orally revised,and had referred them to the Drafting Committee.3. As a result of the decision taken by the Conferenceat its 6th meeting to include a new article 73 in theconvention, the articles following it had been renum-bered. The blank spaces in the former article 81—whichwas numbered 82 in the document before the Confer-ence—had been filled in the customary manner. Theconvention would thus be open for signature until31 December 1986 at the Federal Ministry for ForeignAffairs of the Republic of Austria, and subsequently,until 30 June 1987, at United Nations Headquarters.

4. Article 85—formally article 84—had been amendedby the Drafting Committee in order to bring out moreclearly the intended meaning. The wording of the finalphrase of paragraph 3 had been changed to read "or atthe date the Convention enters into force pursuant toparagraph 1, whichever is later."5. With regard to the final testamentary paragraph,the indication of the date of signature of the conventionwould be completed once the Conference had taken adecision on that matter.6. In conclusion, he said that the Drafting Committeehad decided that the heading "Part VIII" and the title"Final provisions" should precede article 82, followingthe model of the 1969 Vienna Convention on the Law ofTreaties.1

7. Mr. TEPAVICHAROV (Bulgaria), speaking on be-half of the Eastern European group of countries, saidthat their delegations took the view that internationalorganizations participating in the Conference, as sec-ondary subjects of international law did not have theright to sign the convention. However, they could ac-cede to the convention if their competent organs sodecided. The question was important, in that the textbefore the Conference altered well-established inter-national practice. His own delegation could not par-ticipate in any consensus on draft articles 82 to 86, andwould make its views on the matter clear at meetings ofthe competent organs of the international organizationsof which Bulgaria was a member.

8. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that his delegation agreed with the rep-resentative of Bulgaria that delegations with observerstatus did not have the right to sign the convention.



9. Mr. ALMODC«VAR (Cuba) said that internationalorganizations invited to the Conference would not beparties to the convention in the full sense of the term,and that a contradiction would arise if they were ac-corded the right to sign the instrument.10. Mr. VOGHEL (Canada), speaking on behalf ofthe delegations of France, the Federal Republic of Ger-many, the United Kingdom, the United States ofAmerica and his own delegation, said that, while thosedelegations joined in the consensus on the final pro-visions of the convention, their acceptance of thoseclauses should not be construed as a change in theirposition concerning the legal nature of the participa-tion of Namibia, as represented by the United NationsCouncil for Namibia.

Articles 82 to 86 and the title of part VIII wereadopted without a vote.

Article 66 (Procedures for arbitration and conciliation)and

Annex (Arbitration and conciliation procedures estab-lished in application of article 66)

11. Mr. AL-KHASAWNEH, Chairman of the Draft-ing Committee, introducing document A/CONF.129/1 I/Add.3, containing the title and text of article 66 andthe text of the annex, said that draft article 66 had beenthe subject of considerable substantive discussion inthe Committee of the Whole. At its 30th meeting, thatCommittee had adopted the text of the article as con-tained in document A/CONF.129/C.l/L.69/Rev.2 andhad referred it to the Drafting Committee.12. The Drafting Committee had made a number ofchanges in the text of the article. First, "present arti-cles" had been replaced by "present Convention", achange which had also been made in the annex. Sec-ondly, at the end of subparagraph 2 (b), the final phrasehad been adjusted to reflect more clearly the relevantprovisions of the Charter of the United Nations and theStatute of the International Court of Justice, as well asto clarify the original expression "the organization con-cerned". The phrase "the organization concerned torequest an advisory opinion of the Court in accordancewith Article 96 of the Charter of the United Nations"had been altered to read "an international organization,which is a party to the dispute and is authorized inaccordance with Article 96 of the Charter of the UnitedNations, to request an advisory opinion of the Inter-national Court of Justice in accordance with Article 65of the Statute of the Court". Having made that change,the Committee had brought the final words of sub-paragraph 2 (c) into line with the new closing words ofsubparagraph 2 (b).

13. Certain changes had also been made in some of thelanguage versions. For example, in the former Englishversion of subparagraph 2 (b), the word "ask" had beenused. That had been replaced by "request". At thebeginning of subparagraph 2 if) in the Spanish version,the word "deniega" had been replaced by "rechaza".Some necessary changes had also been made in theArabic version of paragraph 2, subparagraphs {b), (c)and (d). Lastly, the title of the article had been changedto bring it into line with that of the corresponding article

of the 1969 Vienna Convention, since the article nowprovided procedures for judicial settlement.14. The annex had been considered substantively bythe Committee of the Whole and was linked to theprovisions of article 66. At its 30th meeting, that Com-mittee had adopted the text of the annex as it appearedin the basic proposal and had referred it to the DraftingCommittee, together with amendments proposed bythe Soviet Union (A/CONF.129/C.1/L.61) and theNetherlands (A/CONF. 129/C. 1/L.67).15. As a consequence of the adoption of the text ofarticle 66, certain consequential changes in the textof the annex had been required. At the beginning ofparagraph 2, in place of the reference to "article 66,paragraph (a)" the new text before the Conference nowread "article 66, paragraph 2, subparagraph (/), oragreement on the procedure in the present annex hasbeen reached under paragraph 3". A similar changehad been required in another paragraph included underparagraph 2. As a further consequential change, thereference in the second sentence of paragraph 2 to"article 66, paragraph (by had been changed to "arti-cle 66, paragraph 4".

16. In paragraph 1, the second sentence had beenchanged to reflect more appropriately the final pro-visions of the present convention. The phrase "or aState party to the present articles and any internationalorganization to which the present articles have becomeapplicable" had been modified to read simply "andevery party to the present Convention". Also in para-graph 1, at the beginning of the third sentence, the word"term" had been clarified to read "term of office".

17. In the introductory part of paragraph 2 it had beenthought useful to be precise in order to avoid any possi-ble lacuna. The opening words of the paragraph, whichoriginally had read "The States and international or-ganizations" now read "The States, internationalorganizations or, as the case may be, the States andorganizations". The same adjustment had been made tothe opening words of the paragraph following subpara-graph 2 (b).

18. With regard to subparagraph 2 (b) itself, oneamendment referred to the Drafting Committee hadcalled for an addition to the subparagraph. The DraftingCommittee had felt that one of the concerns addressedby the amendment, namely to exclude the possibilitythat a dispute between an international organizationand any State would be considered by nationals of thatState only, did not require to be dealt with in the text.As for the other concern addressed in the amendment,namely to exclude the possibility of a dispute betweentwo international organizations being considered bynationals of one and the same State, it was agreed thatthat concern, though a highly theoretical possibility,could best be met by the inclusion of appropriate lan-guage at the end of subparagraph 2 (b). The clause inquestion began with the word "provided" and, in theEnglish version, now referred to "nationals" ratherthan "citizens".

19. In section II of the annex, in the English versionof paragraph 5 the second sentence had been amendedto read "In the event of an equality of votes, the vote of


the Chairman shall be decisive'', which brought the textmore closely into line with the other language versionsand eliminated an element of ambiguity.20. A further amendment referred to the DraftingCommittee had concerned the addition of a paragraphto section III of the annex which would have providedthat the Conciliation Commission would decide in theevent of a disagreement as to whether the Commissionacting under that section had competence. The DraftingCommittee had finally decided not to incorporate thatprovision in the text, bearing in mind that it did notappear in the corresponding section of the annex to the1969 Vienna Convention. Had it appeared in the pres-ent convention, a discrepancy between the two conven-tions might have led to a contrario arguments that aconciliation commission established under the 1969Vienna Convention could not decide on its compe-tence. However, he wished to make it clear that theomission of such a provision in the present contextshould not be taken to mean that a conciliation commis-sion established under the present convention could notdecide on its own competence.

21. Minor grammatical or stylistic changes had alsobeen made in the annex wherever necessary.22. In concluding his presentation of the report of theDrafting Committee, he expressed thanks to all thosewho had contributed to the success of the Committee'swork.

23. The PRESIDENT said that the General Commit-tee had recommended that a roll-call vote should betaken on article 66. In the absence of objection, hewould take it that the General Committee's recommen-dation was adopted.

It was so decided.

24. Mr. TEPAVICHAROV (Bulgaria), speaking inexplanation of vote before the vote, said that his delega-tion would vote against article 66 for a number of rea-sons. Firstly, a mere quarter of the States in the inter-national community adhered to the notion enshrined inthe text of the article, and some only with reservations.Secondly, the text was at variance with the practice ofthe majority of States and with the trend towards freechoice of means of settlement of disputes. Thirdly,article 66 as drafted would be virtually inapplicable, inthat it provided for the possibility of seeking an ad-visory opinion from the International Court of Justicethrough an international organization which had theright to ask for such an opinion at the request of anyState which was a member of that organization. Thepractical result of such a provision would be that, undersubparagraph 2 (b), the General Assembly, the SecurityCouncil or the "competent organ" of an internationalorganization, at the request of a member State, wouldhave to discuss on its merits any request for an advisoryopinion on matters of jus cogens. His delegation did notconsider it appropriate or advisable for the Conferenceto adopt provisions that would affect the work of theprincipal organs of the international community with-out first obtaining their consent. Thus, a Member of theUnited Nations could find itself involved, at the requestof another Member, in the consideration of an issuerelating to jus cogens even if the requesting Member

was not a party to the dispute in question. Such asituation would be highly unsatisfactory, especially asthe General Assembly or the Security Council might,by a vote, decide not to seek an advisory opinion on theissue.

25. The adoption of the provision in article 66 as nowproposed would compel any State which was a Memberof the United Nations, or a member of the many otherinternational organizations, to express a clear view asto whether it was advisable for those bodies of which itwas a member to become parties to the present conven-tion. His delegation would vote against article 66 be-cause it believed that its adoption would prejudice ac-ceptance of the convention. The problems involvedwere not so much practical as conceptual, but theywere of such magnitude as to prevent the conventionfrom becoming operative for many years.

26. Regarding the annex, his delegation felt thatparagraphs 9 and 14 should be deleted, and it thereforerequested that those two paragraphs should be votedupon separately. The expenses of the tribunal or of thecommission referred to in the annex should be bornenot by the United Nations but by the parties to thedispute.

27. Mr. BERMAN (United Kingdom) said that, al-though his delegation had not sponsored the proposalwhich had led to the recommendation of the Committeeof the Whole and the proposals of the Drafting Commit-tee which were before the Conference, it proposed tovote in favour of the text in document A/CONF. 129/11/Add.3 because it considered it to be a reasonable ap-proximation, given the somewhat different current cir-cumstances, of the text which had been adopted,agreed and included in the 1969 Vienna Convention onthe Law of Treaties, to which the United Kingdom wasa party. Inasmuch as the present text constituted areasonable approximation of something that had beenconsidered at a prior codification conference by juristsof great knowledge, expertise and repute, and had beenthe subject of extensive negotiation there, the UnitedKingdom delegation regarded it as a text which had aclear international precedent, and therefore one whichwas entirely appropriate for adoption by the presentConference in a convention which in many respectswas the successor convention to the 1969 Vienna Con-vention. The present text of article 66 had at times beenwrongly presented as if it related to the question of thecompulsory jurisdiction of the International Court ofJustice under Article 36, paragraph 2, of its Statute,sometimes known as the optional clause. That was nottrue. The present case came within the provisions ofArticle 36, paragraph 1, under which the jurisdictionof the Court extended to cases covered by treaties andconventions in force. That particular paragraph of theCourt's Statute had been recognized and observed inmany treaties of a multilateral, restricted multilateral orbilateral nature, and in that sense it was a practice towhich the overwhelming majority of the States mem-bers of the international community had subscribed inone manner or another in their own particular treaties.The United Kingdom delegation found the proposedarticle 66 to be an appropriate solution, and would votein its favour.


28. Mr. MIMOUNI (Algeria) said that article 66 asamended established a complex system for the set-tlement of disputes which his delegation found unac-ceptable: firstly, because it did not require the consentof States before reference of a dispute to the Inter-national Court of Justice; secondly, because it intro-duced a dangerous innovation with regard to the ad-visory opinion of the Court by making it "decisive",which did not correspond to the normal concept of anopinion. Having regard to the fact that internationalorganizations could not go to the International Court asparties to a dispute and that the International LawCommission, in paragraph (4) of its commentary to thearticle, had rejected the advisory opinion procedurebecause of its "imperfections and uncertainties" (seeA/CONF. 129/4), the desire of some delegations to re-introduce such a system, while qualifying it as deci-sive, was quite understandable. The Algerian delega-tion considered that such a system was an indirect wayof enabling all international organizations to have re-course to the International Court of Justice. It thereforebelieved that the text before the Conference was farfrom being the result of a compromise. For those rea-sons, and because the concern of many delegations thatthe principle of the consent of States should be main-tained had not been taken into account, his delegationwould vote against article 66 as proposed.

29. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that his delegation would be voting againstarticle 66 as proposed. Provisions such as it containedcould not be imposed on States. In fact, the majorityof States did not recognize the compulsory jurisdictionof the International Court of Justice, and many of the40 States which had done so had expressed reserva-tions. In the past, States had refused to recognize de-cisions of the Court for political reasons. Furthermore,the provisions of the proposed article had not yet beendiscussed with the majority of international organiza-tions, and the Conference was not in a position toimpose such provisions on them unless they had beenincluded in the convention by consensus. The situationwould therefore be that States members of internationalorganizations would object unilaterally within thoseorganizations and would turn to the competent organfor a decision in order to settle disputes. The Con-ference should therefore consider all the elements ofthat important issue as they were in reality, and di-vorced from theoretical considerations.

30. Mr. COSTANZO (Uruguay) said that at the Sec-ond Hague Peace Conference in 1907, the great Uru-guayan statesman Jos6 Batlle y Ord6nez had made twoproposals which had resulted in considerable progress.The first proposal had called for the establishment of aninternational organization to promote world peace; thathad been an essential precedent for the founding of theLeague of Nations. The second, expanded in 1921, hadrecognized in broad terms the compulsory jurisdictionof the Permanent Court of International Justice. Thoseideas had been enshrined in the Uruguayan Constitu-tion, which provided that in all international treatiesconcluded by it the Republic would include a clausecalling for all disputes between the contracting partiesto be settled by arbitration. Uruguay therefore had along tradition in the matter, as well as a constitutional

rule in force. For those reasons his delegation intendedto vote in favour of article 66.31. The PRESIDENT invited the Conference to voteon article 66 as proposed by the Drafting Committee(A/CONF. 129/1 l/Add.3).

The vote was taken by roll-call.Indonesia, having been drawn by lot by the Pres-

ident, was called upon to vote first.In favour: Australia, Austria, Bangladesh, Barba-

dos, Belgium, Brazil, Cameroon, Canada, Chile, Co-lombia, Cyprus, Denmark, Finland, Germany, FederalRepublic of, Greece, Holy See, Iceland, India, Iraq,Ireland, Italy, Japan, Jordan, Kenya, Kuwait, Leb-anon, Lesotho, Liechtenstein, Luxembourg, Mexico,Netherlands, New Zealand, Nigeria, Norway, Paki-stan, Portugal, Republic of Korea, Saudi Arabia, Spain,Sudan, Sweden, Switzerland, United Kingdom ofGreat Britain and Northern Ireland, United States ofAmerica, Uruguay, Yugoslavia, Zambia.

Against: Algeria, Angola, Bulgaria, ByelorussianSoviet Socialist Republic, China, Cuba, Czecho-slovakia, Democratic People's Republic of Korea,Egypt, German Democratic Republic, Hungary, Indo-nesia, Iran (Islamic Republic of), Madagascar, Peru,Poland, Romania, Tunisia, Turkey, Ukrainian SovietSocialist Republic, Union of Soviet Socialist Repub-lics, Venezuela, Viet Nam.

Abstaining: Argentina, Bahrain, Burkina Faso,Congo, C6te d'lvoire, Ecuador, France, Gabon, Gua-temala, Israel, Malta, Morocco, Nicaragua, Oman,Panama, Philippines, Qatar, Senegal, Thailand, UnitedArab Emirates, Zaire.

Article 66 was adopted by 47 votes to 23, with21 abstentions.

32. Mr. SZEKELY (Mexico), speaking in explana-tion of vote, said that his delegation had voted in favourof article 66 as a demonstration of Mexico's faith ininternational law. For countries such as Mexico, inter-national law was the only weapon in the diplomaticarsenal for the assertion of their international rights.International law was in fact a central component of theforeign policy of his country, which did not accept theexistence of a crisis of multilateralism. Nor did hiscountry have any fear of international law and inter-national justice. Mexico's vote in favour of article 66was also a response to the appeal made by the Presidentof the International Court of Justice at the fortiethsession of the United Nations General Assembly andwas consistent with the statement made by Mexico'sMinister for Foreign Affairs at that same session.Both had called on the international community tostrengthen the International Court of Justice, and,thereby, the United Nations.

33. Mr. MORELLI (Peru) recalled his delegation'sexplanation of its vote on the eight-Power amendment(A/CONF. 129/C.l/L.69/Rev.2) to article 66 in the Com-mittee of the Whole (30th meeting). His delegation wasboth surprised and concerned that an article such asarticle 66 had been included in a codification conven-tion. The International Law Commission's draft of thatarticle had given rise to substantive differences which


had never been resolved subsequently in spite of exten-sive discussion. That was proved by the small marginby which the article had been approved. The vote justtaken did not suggest that there was widespread inter-national support for the mandatory application of par-ticular machinery for the settlement of disputes on mat-ters so important and yet so vaguely defined as thoserelating to jus cogens. The eight-Power amendment tothe original text of article 66 introduced the substantiveand unjustified innovation of making the advisory opin-ions of the International Court of Justice decisive, thuschanging their very nature. Insufficient attention hadbeen paid to other compromise proposals, such as thethree-Power amendment (A/CONF.129/C.1/L.68) andother possible solutions such as an additional protocolto the convention binding only those parties prepared toabide by predetermined methods of dispute settlementwhich were not acceptable to the international com-munity as a whole.

34. Mr. CORREIA (Angola) said that his delega-tion had voted against the adoption of article 66for the reasons it had already given during the dis-cussion of that article in the Committee of the Whole(28th meeting). In its international relations, Angolacategorically rejected mandatory recourse to any par-ticular means of settling disputes. It accepted all themethods set out in the Charter of the United Nationsand other international instruments, subject to the priorconsent of the parties concerned.

35. Mr. GUNEY (Turkey) said that his delegation hadcast a negative vote on article 66 for the reasons whichit had previously expressed in the Committee of theWhole (26th meeting). The article had been adopted bythe Conference in spite of the opposition of a considera-ble number of delegations, and the approach taken in itsprovisions conflicted with the principle embodied inarticle 66 of the 1969 Vienna Convention on the Law ofTreaties. Those two factors made it likely that the arti-cle would be the subject of reservations which, in theunderstanding of his delegation, would not be incom-patible with the object and purpose of the draft conven-tion, under article 19, subparagrpah (c), of the 1969Vienna Convention. Turkey would act on that premiseif it decided eventually to become a party to the futureconvention.

36. Mr. RASOOL (Pakistan) said that his delegationhad voted in favour of article 66. Nevertheless hewished to refer the Conference to the statement con-cerning the jurisdiction of the International Court ofJustice which his delegation had made in the Committeeof the Whole (27th meeting).37. Mr. FOROUTAN (Islamic Republic of Iran) saidthat in his statement in the Committee of the Wholeconcerning article 66 and the various amendmentsthereto {ibid.) he had stressed the need for strictprocedural safeguards because of the unfortunate lackof adequate administrative machinery in many devel-oping countries, including his own. It was regrettablethat the same binding procedure as in the 1969 ViennaConvention had now been approved by a majoritywhich represented less than one third of the member-ship of the United Nations. His delegation had votedagainst article 66 because it did not constitute an ac-

ceptable norm for international relations and did notreflect contemporary realities. While the Governmentof the Islamic Republic of Iran fully endorsed the con-cept of the settlement of all international disputes bypeaceful means and recognized the need to settle in anatmosphere of mutual understanding issues relating tothe interpretation and application of the proposed newconvention, it had great difficulty in associating itselfwith the binding provisions set forth in the present textof article 66, and it reserved its position in that regard.Freedom of choice to resort to any means for the set-tlement of disputes was a basic criterion, and the con-sent of all parties concerned was essential in everycase.

38. Mr. RODRIGUEZ CEDENO (Venezuela) saidthat his country recognized the importance of arbi-tration and judicial decision as appropriate, but notexclusive, methods of settlement of international legaldisputes. The principle of the free choice of means bythe parties concerned was recognized by the interna-tional community and it was reflected in practice and ininternational legal theory and case law. The most recentpractice showed that direct negotiations and recourseto non-binding mechanisms for the settlement of inter-national disputes, irrespective of their nature, wereeffective methods and produced results acceptable toall the parties involved. As shown by the example of the1969 Vienna Convention, the imposition of mandatoryarbitration and judicial settlement, which ran counter tothe principle of State sovereignty, hindered the for-mulation of truly universal international instruments.The possibility under the present draft convention thata State or an international organization might unilat-erally bring another State, against its will, before apredetermined judicial body, thus limiting recourse toother equally effective mechanisms, was an even morenegative factor. The imposition of intervention by thirdparties in the development of peremptory norms ofgeneral international law, which were collectively ill-defined, was contrary to international practice and tospecific agreements, and was prejudicial to the logicaldevelopment of such norms irrespective of their rel-ative force.

39. With regard to the qualification "decisive" asapplied to advisory opinions of the International Courtof Justice, his delegation did not consider that it impliedany binding force. The incorporation of additional com-pulsory mechanisms did violence to the substance andspirit of Article 33 of the Charter of the United Nations,which was the outcome of a practical compromise re-flecting the reality of contemporary international rela-tions. The incorporation in the convention of the pro-cedures provided for in article 66 would adverselyaffect the instrument's universal character and did notanswer the need to codify and progressively developinternational law in order to strengthen the rule of law ininternational relations.

40. Mr. WANG Houli (China) said that his delegationhad on several occasions expressed its views on theoriginal draft article 66 and, together with Algeriaand Tunisia, had submitted an amendment to that text(A/CONF.129/C.1/L.68). The settlement of interna-tional disputes, including those involving jus cogens,


must be based on free choice of means of settlement bythe parties involved. His delegation had voted againstarticle 66, which in its present form would create moreproblems than the original draft article would havedone. It would increase the number of countries thatwould have difficulty in accepting the future con-vention.41. Mr. KHARMA (Lebanon) said that his delegationhad voted in favour of article 66. However, it wishedto reiterate the reservation in respect of subpara-graph 2 (e) which it had expressed in its statement in theCommittee of the Whole (30th meeting).42. Mr. ALMOD6VAR (Cuba) said that his delega-tion had already made its position known on article 66and the annex, and he would merely add that its viewswould remain unchanged. His delegation could acceptsuch procedures only in the event that it was agreed thattheir application resulted from the explicit written con-sent of the parties to a dispute. His delegation would notaccept any formula of supranational general mandatoryjurisdiction whereby decisions might be imposed indisputes whose content and scope could not be fore-seen. The delegation of Cuba therefore wished to placeon record its objection to article 66 and the annex.43. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that his delegation had voted against arti-cle 66. In its view, recourse to the various means for thepeaceful settlement of disputes could be had only withthe common consent of the parties to the dispute inquestion. A further argument against binding arbitra-tion was that there was no precedent in internationalpractice of an international organization resorting toarbitration, and even less of agreement in advance byany international organization to accept binding ar-bitration. There was also no precedent for conciliationprocedures between international organizations. Hisdelegation therefore considered article 66 both politi-cally unacceptable and legally unjustified. The adop-tion of the article meant that the views of the minorityof governments that recognized binding arbitrationwere being forced upon a majority of States and organ-izations.44. Mr. PALOMO (Guatemala) said that for consti-tutional, and above all for historical reasons, his coun-try had expressed reservations regarding article 66 andthe annex. Owing to Guatemala's long-standing disputeover the territory of Belize, those provisions wouldalways cause it difficulties of interpretation as wellas practical difficulties. Nevertheless, its abstention inthe vote just taken had not been intended to frustratethe wishes of the majority of delegations, and it trustedthat the principle and the machinery which had beenadopted might in the future help in resolving Guate-mala's long-standing dispute with the United Kingdom.45. Mr. GILL (India) said that his delegation wishedto reiterate the statement it had made in the Committeeof the Whole (30th meeting) on India's position withregard to mandatory procedures for the settlement ofdisputes.46. Mr. PAWLAK (Poland) said that his delegationhad voted against the adoption of draft article 66 as ithad been amended. Poland believed that the submis-sion of any issue to arbitration should be on the basis of

agreement by all the parties to the dispute involved. Itfurther considered the adoption of the article by sosmall a majority to be unfair and unacceptable.47. The PRESIDENT recalled that the representativeof Bulgaria had requested a separate vote on para-graphs 9 and 14 of the annex to the convention. Hesuggested that the two paragraphs should be voted onsimultaneously.

Paragraphs 9 and 14 of the annex to the conventionwere adopted by 48 votes to 17, with 22 abstentions.

The annex as a whole was adopted without a vote.48. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that this delegation had not opposed theadoption of the annex to the convention by consensus.However, it had not been a part of that consensus. Inits view, the expenses of proceedings under paragraph 9of the annex should be borne by the parties to the dis-pute. Furthermore, the appointment by the Secretary-General of a fifth arbitrator or conciliator should beeffected with the agreement of the parties to the dis-pute.

49. Mr. FLEISCHHAUER (Legal Counsel) said thatparagraphs 9 and 14 of the annex just adopted by theConference provided that the expenses of any arbitraltribunal or conciliation commission as provided for inthe annex should be borne by the United Nations.Those provisions were similar to that in paragraph 7 ofthe annex to the 1969 Vienna Convention. Since para-graphs 9 and 14 of the present annex might have finan-cial implications and involve the Organization in expen-diture, the General Assembly was required to considerthem and give its view on them. The Conference mighttherefore wish to decide to ask the General Assembly toconsider those paragraphs and take the appropriatemeasures. At the 1969 Vienna Conference and othersimilar international conferences, the correspondingdecision had taken the form of a brief resolution draw-ing the attention of the General Assembly to the prov-isions which had been adopted. He believed that therepresentative of the United Nations was in a positionto propose a similar draft resolution for considerationby the Conference.

50. The PRESIDENT said he understood that a draftresolution submitted by Japan (A/CONF.129/L.3) wouldalso be circulated. He urged any other delegationswhich wished to submit resolutions to do so imme-diately in order that they might be considered as soon aspossible.51. Mr. TEPAVICHAROV (Bulgaria) requested thata vote should be taken on any draft resolutions sub-mitted to the Conference.

Adoption of the Convention on the Law of Treatiesbetween States and International Organizations orbetween International Organizations

52. The PRESIDENT said that the representative ofBulgaria had requested that a vote should be taken onthe convention as a whole.

The Convention as a whole was adopted by 67 votesto 1, with 23 abstentions.



8th plenary meetingThursday, 20 March 1986, at 3.45 p.m.



[Agenda item 11] {concluded)


[Agenda item 12] (concluded)

STATEMENTS IN EXPLANATION OF VOTE

1. The PRESIDENT said he understood that a num-ber of delegations wished to explain their vote on theadoption of the Convention. He invited them to do so.2. Mr. ABDENNADHEUR (Tunisia) said that hisdelegation regretted that the Convention had not beenadopted by the Conference by consensus. It had votedin favour of the Convention in accordance with thepolicy Tunisia had followed since its independence—that of ensuring the realization of the purposes andprinciples of the Charter of the United Nations. In thatconnection, Tunisia attached special importance to thecodification and progressive development of interna-tional law.3. In acceding to the 1969 Vienna Convention on theLaw of Treaties,1 Tunisia had formulated a reservationto article 66, subparagraph (a), for it took the view thatrecourse to the International Court of Justice requiredthe express consent of the parties to the dispute. Itadhered to the rules laid down in Article 33 of theCharter of the United Nations regarding the peacefulsettlement of disputes and considered that Statesshould have a free choice of means so as to enable themto negotiate the settlement of any disputes that mightarise in the application or interpretation of treaties. Inthe negotiation of a settlement, all due despatch and thewill of the parties to settle the dispute were essential.States parties to a dispute should also be able to availthemselves of any other means for the peaceful set-tlement of disputes, including arbitration or judicialsettlement, provided that all the parties to the disputeconsented to it. That would make for a negotiated set-tlement and allow the parties to choose the most ap-propriate means of settlement freely and in commonaccord.

4. Mr. ULLRICH (German Democratic Republic)said that his delegation had abstained from voting onthe Convention as a whole since it believed that the

1 United Nations Conference on the Law of Treaties (UnitedNations publication, Sales No. E.70.V.5), p. 287.

spirit of compromise had not prevailed throughout itspreparation.5. With regard to the actual text of the Convention,his delegation had agreed to the preamble on the under-standing that it had a special function to fulfil in theinterpretation of the Convention and in particular ofarticle 2, subparagraph 1 (/') and articles 11, 19 and 20.That represented one area on which a compromise hadbeen reached.6. Widely differing positions had been expressed onarticle 66. His own delegation believed that on no ac-count could disputes involving./ws cogens be settled bymeans of a compulsory arbitration procedure. Deci-sions regardingyMs cogens could not be left to so-calledneutral bodies because of its highly legal and polit-ical nature. That was a further reason why his delega-tion had abstained from voting on the Convention as awhole, and the reason why it had voted against theproposal submitted by the Drafting Committee withregard to article 66.7. His delegation regretted that the Soviet proposalfor the final clauses (A/CONF. 129/C.1/L.76 andCorr. 1) had not received the necessary support.

8. Mr. MONNIER (Switzerland) said that, althoughhis delegation had voted for the adoption of the Con-vention, it would not sign it immediately because Swit-zerland was not yet a party to the 1969 Vienna Conven-tion, which it had not signed either. The question ofSwitzerland's participation in both Conventions wouldbe considered shortly by the competent Swiss federalauthorities.

9. Mr. PEREZ GIRALDA (Spain) said that his del-egation had voted in favour of the adoption of theConvention. The broad consensus which the Conven-tion represented would serve to consolidate the rules ofinternational law that had been codified in the 1969Vienna Convention. In providing for the position ofinternational organizations, the new Convention recog-nized the important contribution which they made tointernational relations in many areas of activity, in-cluding the codification and progressive developmentof international law.

10. Mr. WANG Houli (China) said that his delega-tion had abstained from voting on the Convention as awhole. It had participated in the work of the Conferencein a constructive spirit, and many of the provisions ofthe Convention had been adopted following consulta-tions in which it had participated. Regrettably, how-ever, article 66 of the Convention was a departure fromrecognized principles of international law and was notin keeping with the spirit of the Charter of the UnitedNations. It could therefore not be applied in practice,and that would inevitably detract from the force anduniversal character of the new Convention.


11. Mr. TARCICI (Yemen) said that his delegationhad voted in favour of the Convention because of itsflexible and universal character, which would facilitateinterpretation of its terms. Also, negotiation and arbi-tration necessarily involved a fairly lengthy procedurewhich would enable further solutions to be achieved.12. Mr. GUNEY (Turkey) said that his delegation hadabstained in the vote on the Convention, in the firstplace because of the serious reservations it had con-cerning articles 53 and 64 relating to jus cogens, andsecondly, because of its position on article 66 re-garding judicial settlement, arbitration and concilia-tion, which it had explained in the Committee of theWhole (26th meeting) and confirmed at the 6th and7th plenary meetings of the Conference.13. Mr. SHASH (Egypt) said that his delegation hadvoted in favour of the Convention because of the impor-tance which Egypt attached to the codification of rulesof international law in the area dealt with by the Con-ference. It was, however, bound to enter a reservationto article 66 on settlement of disputes which, as drafted,would prevent many countries from supporting theConvention.

14. Mr. AL-MUBARAKY (Kuwait) said that hiscountry had voted in favour of the Convention andwelcomed its adoption. The Convention as a whole,together with article 66, represented a step forward inthe codification and progressive development of inter-national law.

15. Mr. CANQADO TRINDADE (Brazil) said that,while his delegation had voted in favour of the Conven-tion, it would have preferred the two key provisionsregarding the treaty-making power of international or-ganizations and the rules of the organization (article 6and article 2, subparagraph 1 (/)) to have been con-sidered jointly in a methodology distinct from the onefollowed at the present Conference, although it suppor-ted the wording finally adopted for those provisions.

16. His delegation supported the recognition givenin the Convention to the treaty-making capacity of in-ternational organizations, which maintained the neces-sary parallelism with the 1969 Vienna Convention whilewisely leaving open the question of the status of inter-national organizations in international law. It supportedin particular the provision to the effect that the treaty-making capacity of international organizations wasgoverned by the rules of each international organiza-tion, such rules including the constituent instrumentsof the organizations and decisions and resolutionsadopted in accordance with those instruments, as wellas their established practice, on the understanding thatoccurred or was so by virtue of a general rule of inter-national law under which international organizationswere vested, as subjects of international law as distinctfrom States, with treaty-making capacity.

17. As was clear from the discussion which had takenplace on article 2, subparagraph 1 (/)> articles 20, 36 bisand 46 and also the preamble, the references made inthe Convention not simply to practice but to estab-lished practice would prove highly important in thefuture interpretation of the provisions of the instru-ment. International organizations are likely to refer

to their "autonomous" established practice for thevery interpretation of their constituent instruments.The wealth of relevant case law which existed con-trasted with the silence of the 1969 Vienna Conventionon that question and with the methodology followed atthe present Conference, which had not left much oppor-tunity for detailed consideration of the matter. Thereseemed to be no absolute parallelism among the inter-national organizations themselves regarding the extentof the role of established practice and the interpretationof the powers conferred upon them or their organs.18. On the question of settlement of disputes, theBrazilian delegation referred to the statement it hadmade in the Committee of the Whole (27th meeting).

19. Mr. DELON (France) said that his country hadneither signed nor ratified the 1969 Vienna Conventionon the Law of Treaties because that instrument con-tained provisions stipulating the invalidity of treatieswhich conflicted with a peremptory norm of generalinternational law, jus cogens. His delegation wished topay tribute to the work accomplished by the Inter-national Law Commission, and particularly its SpecialRapporteur, and it fully supported many of the pro-visions of the Convention prepared by the present Con-ference. It welcomed the desire to develop the codifica-tion of international law in an area not lacking in pitfalls.However, it regretted that all the provisions concerningthe obligations and rights of States members of an inter-national organization deriving from a treaty to whichthe organization was a party had been deleted. In itsview, the International Law Commission's proposal onthe subject had the merit of clarifying what might proveto be a very complex legal situation.

20. Unfortunately, the concern to achieve the closestpossible parallel with the 1969 Vienna Convention hadled the Conference to produce a text containing pro-visions relating to jus cogens very similar to thosewhich had led France to vote against that Convention.Cases in point were articles 53 and 64.

21. In the view of his delegation, the content of juscogens, the manner in which its rules were formedand its effects all remained uncertain. The Interna-tional Law Commission, in its commentary to arti-cles 53 and 64, failed to clarify the matter and merelynoted that those articles repeated the wording alreadyused in the 1969 Vienna Convention. As far as hisdelegation was aware, a simple criterion for recognizingthat a general rule of international law derived from juscogens had still not been established. Article 53 of thenew Convention defined jus cogens as the collection ofrules "accepted and recognized by the internationalcommunity of States as a whole" and "from which noderogation is permitted". But did that mean that theunanimous consent of the States forming the inter-national community was required for the formation ofsuch rules, or did a simple majority of them suffice?Clearly, such a system had to have a dispute settlementmechanism, for without that it would either be ineffec-tive or have the effect of destabilizing treaty relations.However, the mechanism provided for in article 66 ofthe present Convention posed a number of problems. Itdid not settle the question of access of all internationalorganizations to the International Court of Justice. Fur-


thermore, it had the effect of changing the nature of theadvisory opinions of the Court by terming them "de-cisive". Finally, there was ageneral feeling that the rulepacta sunt servanda which had been so happily restatedin the preamble of the Convention might be breached bythe uncontrolled and improper invocation of so-calledrules of jus cogens. Clearly, thus to admit conflict intoa field where certainty should reign meant acceptanceof a reduction in the effectiveness of treaties and theintroduction of uncertainty into international relations.For all those reasons, the French delegation had votedagainst the adoption of the Convention.

22. Count de la BARRE D'ERQUELINNES (Bel-gium) said that his delegation would not be in a positionto sign the Convention immediately, since the questionof his country's accession to the 1969 Vienna Conven-tion on the Law of Treaties was still being examined bythe competent authorities, who proposed to considerthat Convention and the new Convention together. Hewished to add that his delegation recognized the impor-tance of the new Convention for international organiza-tions, which were playing an increasingly importantrole in international relations.

23. Mr. MIMOUNI (Algeria) said that his delegationhad been hoping for the adoption of a widely acceptableconvention which would make a positive contributionto the progressive development of international law. Itregretted that, in the end, it had not been possible forthe Conference to adopt the Convention by consensus.His delegation had been unable to vote in favour ofadoption of the Convention, since its provisions didnot reflect the views held by many delegations on thequestion of settlement of disputes. His delegation hadtherefore abstained in the vote.

24. Mr. TEPAVICHAROV (Bulgaria) said that hisdelegation had abstained in the vote on the Conventionbecause it had strong reservations concerning article 66and the final provisions. The reasons for those reserva-tions had already been fully explained at the previousmeeting and at the 27th and 30th meetings of the Com-mittee of the Whole. He did not propose to elaborate onhis delegation's reservations relating to other articles,having expressed Bulgaria's reservation concerning theConvention as a whole.

25. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) welcomed the Convention just adopted by theConference as an example and an extension of theprocess of progressive codification of international law,reflecting such instruments as the Charter of the UnitedNations and the 1969 Vienna Convention on the Law ofTreaties. The Convention contained legal norms re-flecting the specific nature of international organiza-tions. The practice of such organizations in concludingtreaties had to conform to their constituent instru-ments, and the Convention rightly confirmed that inter-national organizations, as subjects of international law,had specific legal responsibility and capacity.

26. His delegation regretted, however, the inclusionin the Convention of provisions which it found unsatis-factory. The procedure for the settlement of disputesprovided for in article 66 did not correspond with actualpractice, and contradicted the principle of the sov-

ereign equality of States and the right of States to se-lect the means of settling disputes. The article there-fore constituted a retrograde step in international lawand would reduce the effectiveness of the future Con-vention.

27. His delegation did not agree with the final pro-visions, which allowed States and international organ-izations to participate in the Convention on an equalfooting. In his delegation's view, the conclusion of acodification convention was a matter for States alone;international organizations could participate only asobservers. It was premature at the present stage ofthe development of international law to permit inter-national organizations to sign such conventions. Forthose reasons his delegation had abstained in the voteon the adoption of the Convention.

28. Mr. LE BA CAP (Viet Nam) said that his del-egation had abstained in the vote because in its viewarticle 66 and the annex to the Convention were notconsistent with the spirit of promoting the peacefulsettlement of disputes. Article 66 detracted from theprinciple of the sovereignty of States. His delegationalso found subparagraphs 1 (b) and 2 (b) of article 45unsatisfactory, as it considered that in all cases ac-ceptance should be formal and specific.

29. Mr. HARDY (European Economic Community)said that the Convention just adopted by the Confer-ence was the result of a long and sustained effort. It wasthe culmination of a codification process undertaken bythe international community which had involved manystages. His delegation was gratified to note that it hadbeen possible to reach general agreement on the greatmajority of the articles considered. It would study theConvention carefully and determine its position ac-cordingly.

30. In connection with article 2, his delegation waspleased to note that there was agreement on the use ofthe term "full powers" for instruments issued both byorganizations and by States, since that reflected currentpractice. He regretted that the phrase "acts of formalconfirmation" relating to the conclusion of treaties byinternational organizations had not been deleted, sinceit introduced an unnecessary complication without anyadvantage, particularly as it had been agreed in the textthat there was no legal difference between an act ofratification by a State and an act of formal confirmationby an organization. Indeed, an act of formal confirma-tion might be termed a "ratification". That was, in fact,the practice in the European Economic Community,which would continue to use that term, where appro-priate, in the future.

31. His delegation accepted the definition of "rulesof the organization" in article 2, subparagraph 1 (/) andfelt that the term covered all sources of communitylaw. He wished to reiterate that it was the responsibilityof the organization concerned to interpret and apply itsrules in accordance with its own procedures. As hadbeen pointed out, it was not possible through adoptionof an instrument such as the one before the Conferenceto seek to modify arrangements made under an earliertreaty or treaties setting up an international organiza-tion, with its own procedures and methods of opera-


tion. In that connection, he drew attention to the ref-erence in the thirteenth paragraph of the preamble torelations between an international organization and itsmembers. His delegation considered that paragraph tomean that relations between an organization and itsmembers were always governed by the rules of theorganization, it being understood however that when anorganization concluded a treaty with one of its mem-bers, the provisions of the present Convention mightapply. It was also the responsibility of each organiza-tion to determine which were its "competent organs"or "organs" and their respective roles.32. In the view of his delegation, paragraph 2 of arti-cle 9 was consistent with paragraph 1 of the article.Consequently, international organizations and Stateswere treated on an equal footing as participants in aninternational conference and for the adoption of a treatytext. His delegation found the provisions on reserva-tions, which closely reflected the language of the 1969Vienna Convention, satisfactory. International organ-izations were fully entitled to formulate reservations orto object to them on the same basis as States, subjectonly to the wording of the articles adopted by the pres-ent Conference.

REPORT OF THE COMMITTEE OF THE WHOLE

33. The PRESIDENT invited the Conference to con-sider the report of the Committee of the Whole(A/CONF. 129/13). In the absence of objections, hewould take it that the Conference wished to take note ofthe report of the Committee of the Whole.

// was so decided.

CONSIDERATION OF THE DRAFT FINAL ACTAND ANNEXED RESOLUTIONS

34. The PRESIDENT invited the Conference to con-sider the draft Final Act, which had been preparedby the Drafting Committee (A/CONF. 129/12). He drewattention to the three customary resolutions in the an-nex to the draft text, the first paying tribute to theExpert Consultant, the second to the International LawCommission and the third to the People and to theFederal Government of Austria. He suggested that theConference might wish to adopt those three resolutionswithout a vote.

The three resolutions in the annex to the draft FinalAct (A/CONF.129/12) were adopted without a vote.

DRAFT RESOLUTION PROPOSED BY THAILAND

35. Mr. CHUTASAM1T (Thailand), speaking on be-half of the group of Asian countries, said that the threeresolutions just adopted were most appropriate. How-ever that group considered it appropriate also to paytribute to the great negotiating skill and the leadershipof the President of the Conference, whose wisdom andguidance had contributed so much to the successfulconclusion of the Conference's work. A tribute wasalso due, they felt, to the Chairman of the Committee ofthe Whole and the Chairman of the Drafting Commit-tee. He therefore proposed that the Conference shouldadopt the following draft resolution entitled "Tribute to

the President of the Conference, to the Chairman of theCommittee of the Whole and to the Chairman of theDrafting Committee":

"The United Nations Conference on the Law ofTreaties between States and International Organiza-tions or between International Organizations,

"Having adopted the Vienna Convention on theLaw of Treaties between States and InternationalOrganizations or between International Organi-zations,

"Expresses its appreciation and thanks toMr. Karl Zemanek, President of the Conference,Mr. Mohamed El-Taher Shash, Chairman of theCommittee of the Whole, and Mr. Awn Shawkat Al-Khasawneh, Chairman of the Drafting Committee,who, through their great knowledge, successful ef-forts and wisdom in steering the work of the Con-ference, contributed greatly to the fruitful workwhich made the Conference successful."

36. Mr. SZEKELY (Mexico) said that his delegationwholeheartedly supported the draft resolution pro-posed by the representative of Thailand on behalf of thegroup of Asian countries, as it called appropriate atten-tion to the President's invaluable contribution to theConference and his successful guidance of its delibera-tions to a successful conclusion.37. Mr. PALOMO (Guatemala), speaking on behalf ofthe group of Latin American countries, said that theywished to congratulate the President on his great con-tribution to the work of the Conference. They alsowished to pay tribute to the Chairman of the Committeeof the Whole, the Chairman of the Drafting Committee,the Vice-Presidents, the Expert Consultant and thesecretariat of the Conference. On behalf of the group ofLatin American countries, he supported the draft res-olution proposed by the representative of Thailand.38. Mr. ABDENNADHEUR (Tunisia), speaking onbehalf of the African delegations, said that they wishedto be associated with the draft resolution read out by therepresentative of Thailand. They wished to expresstheir sincere gratitude and appreciation to the Pres-ident for having presided with impartiality and successover the work of the Conference. They also wished tothank the Chairman of the Committee of the Whole, theChairman of the Drafting Committee, the members ofthe General Committee and the secretariat for theircontributions to the success of the Conference.39. Mr. BERMAN (United Kingdom) said that hisdelegation wished to associate itself with the senti-ments expressed by the representative of Thailand andechoed by the representatives of other delegations andgroups. The success of a complex conference dependedon the efforts of all its officers, its secretariat and theparticipating delegations.

The draft resolution proposed by Thailand wasadopted by acclamation.

DRAFT RESOLUTION SUBMITTED BY JAPAN

40. The PRESIDENT invited the Conference to con-sider the draft resolution submitted by Japan, relatingto article 66 of the Convention.


41. Mr. HAYASHI (Japan), introducing the draftresolution submitted by his delegation (A/CONF.129/L.3), said that the Conference having adopted the Con-vention as a whole, including the new text of article 66,his delegation wished to draw attention to the provi-sions of paragraph 2, subparagraphs (b) and (d), of thatarticle, which allowed States parties or certain inter-national organizations parties to a dispute to askthe General Assembly or the Security Council of theUnited Nations to request an advisory opinion of theInternational Court of Justice. The draft resolution sub-mitted by Japan was intended to facilitate the imple-mentation of those provisions.

42. He expressed regret at the fact that the draft res-olution had been submitted only that morning. Therehad been no intention of taking other delegations bysurprise; the Japanese delegation had simply had noalternative, having had to await the adoption of the textof article 66 by the Conference before making its pro-posal.

43. In essence, the draft resolution would request theGeneral Assembly and the Security Council to adoptappropriate procedures for responding promptly to re-quests which might be made for seeking an advisoryopinion of the International Court of Justice.

44. Mr. TEPAVICHAROV (Bulgaria) said that, inview of late submission of the Japanese draft resolu-tion, his delegation could make only preliminary com-ments on that text. It was clear that it embodied in effecta substantive proposal, and could therefore not be sub-mitted to the Conference in the form of a draft reso-lution. The Conference had been convened in orderto adopt a convention on the law of treaties betweenStates and international organizations or between inter-national organizations. It had no mandate to adopt de-cisions requesting the General Assembly or the Secu-rity Council to take action in connection with thosematters. In order to address those bodies, the properprocedure would have been to consult the General As-sembly and the Security Council beforehand. His del-egation considered that the draft resolution was notadmissible at the present Conference. He would begrateful if the Legal Counsel of the United Nationswould advise the Conference on that question of admis-sibility.

45. Mr. FLEISCHHAUER (Legal Counsel) said thathe did not share the Bulgarian representative's doubtsregarding the procedural receivability or admissibilityof the draft resolution submitted by Japan. The presentConference was a conference of plenipotentiaries ofStates and, as such, it could address questions relatingto its subject matter to the United Nations withouthaving to consult other international fora.

46. As for the content of the draft resolution, he feltthat it did not introduce an entirely new subject; it wasconnected with the operation of the provisions of arti-cle 66, paragraph 2, of the Convention.

47. Mr. SHASH (Egypt) asked, for purposes ofclarification, whether a similar resolution had beenadopted by the United Nations Conference on the Lawof Treaties.

48. Mr. FLEISCHHAUER (Legal Counsel) said thatno similar resolution had been adopted by the UnitedNations Conference on the Law of Treaties. It shouldbe borne in mind, however, that the problem dealt within the draft resolution submitted by Japan arose from aspecific situation which occurred only in relation tointernational organizations. The 1969 Vienna Conven-tion on the Law of Treaties had excluded from its scopethe treaties concluded by international organizations.The two situations were therefore not comparable.49. Mr. SHASH (Egypt) asked whether it was reallynecessary for the Conference to adopt a draft resolutionsuch as the one proposed. If the United Nations, as aninternational organization, became a party to the Con-vention, it would be bound by all the provisions of theConvention. He accordingly appealed to the delegationof Japan not to press its draft resolution, bearing inmind the fact that many delegations which had voted infavour of adoption of the Convention were reluctant toadopt the draft resolution.50. Mr. HAYASHI (Japan) said that there appearedto be a misunderstanding with regard to the implica-tions of his country's draft resolution. The questionwhether the United Nations became a party to the newConvention or not was not relevant in the context of theproposal. There was no need for the United Nations tobe a party to the Convention for it to receive the type ofrequest envisaged in article 66, paragraph 2, subpara-graphs (b) and (d).51. The sole purpose of the draft resolution was tofacilitate the operation of the provisions of article 66,paragraph 2, which referred to the possibility of askingthe General Assembly or the Security Council to re-quest an advisory opinion from the International Courtof Justice.52. He drew attention, finally, to the fact that theadvisory opinion in question could be requested by aState, and not solely by an international organization,in the cases envisaged in article 66, paragraph 2.53. Mr. PAWLAK (Poland) joined in the Egyptianrepresentative's appeal to the Japanese delegation towithdraw its draft resolution, which was out of place atthe present Conference. It was also very premature,since it would be a long time before the Convention justconcluded came into force. The draft resolution was notreally necessary and, if pressed, would lead to needlessconfrontation.

54. Mr. RASOOL (Pakistan) said that his delegationalsojoined in the Egyptian representative's appeal. Thedraft resolution would create difficulties for many del-egations which had voted in favour of article 66 at theprevious meeting. Unlike the Legal Counsel, he feltthat problems were likely to arise if the Conferenceadopted a resolution addressed to the General Assem-bly and the Security Council of the United Nations.

55. Mr. HAYASHI (Japan) said that because of theunavoidable delay in the submission of the draft resolu-tion it had not been possible for him to explain it inadvance to delegations as he would have wished.

56. Taking into consideration the concern which hadbeen voiced by certain delegations and in order to avoid


further confusion, he withdrew his delegation's draftresolution.57. The PRESIDENT thanked the Japanese repre-sentative and noted that the draft resolution in doc-ument A/CONF.129/L.3 was withdrawn.

DRAFT RESOLUTION SUBMITTED BYTHE UNITED NATIONS

58. The PRESIDENT invited the Conference to con-sider the draft resolution submitted by the United Na-tions (A/CONF. 129/L.4), which related to the annex tothe Convention adopted by the Conference.59. Mr. TEPAVICHAROV (Bulgaria) said that hisdelegation had expressed its views on the question ofparagraphs 9 and 14 of the annex to the Convention atthe previous meeting. The provisions of rule 60, sub-paragraph 1 (d), of the rules of procedure had not beensatisfied; he therefore considered the draft resolutioninadmissible.60. The PRESIDENT suggested that the Conferencemight, if it so wished, adopt without a vote a proposalby the United Nations, in which case the rule referredto by the representative of Bulgaria would not apply. Itwould be virtually impossible at the present late stage ofthe Conference to comply with the provisions of therule in question governing requests that proposals beput to a vote.61. Mr. BERMAN (United Kingdom) said that hisdelegation was far from convinced that the provisionsof the rule referred to were applicable to the proposalbefore the Conference, which could not reasonably beregarded as substantive. Surely it related rather to con-sequential action—which in any normal circumstanceswould be regarded as inevitable—based on decisionsalready taken by the Conference by a vote.62. The United Kingdom delegation also had somedoubts as to whether document A/CONF. 129/L.4should be construed as being a draft resolution sub-mitted by the United Nations. It was his recollectionthat the Legal Counsel had pointed out at the previousmeeting that it would be normal and necessary for theConference to take a decision along the lines indicatedin the present proposal, and that, if necessary, therepresentative of the United Nations could produce atext. He further understood it to have been decided thatsuch a text would be drafted as part of a technicaloperation linked to the fulfilment of what the Con-ference had agreed was necessary.

63. However, to the extent that a different view mightbe taken, his delegation was fully prepared to makewhatever formal request might be necessary in order toensure that the Conference could indeed decide to acton the proposal before it.64. Mr. TEPAVICHAROV (Bulgaria) said that theBulgarian delegation had a different understanding ofthe rule to which he had referred. However, he con-sidered that to embark on a procedural discussion wasnot as important for his delegation as to reiterate itsviews on the substance of the issue. A draft resolutionhad been submitted by the United Nations. As a Mem-ber of the United Nations, Bulgaria, at the previous

meeting, had expressed its views on the question dealtwith in that draft resolution. In the terms of the draftresolution, the General Assembly was requested totake note of and approve provisions of the Annex tothe Convention which had financial implications. Hewished only to point out that a representative par-ticipating in the present Conference might in due coursehave to justify, in the Fifth Committee of the GeneralAssembly of the United Nations, the request for ap-proval proposed in the draft resolution.

65. His delegation requested that a vote be taken byroll-call on draft resolution A/CONF. 129/L.4.

A vote was taken by roll-call.Nigeria, having been drawn by lot by the President,

was called upon to vote first.In favour: Australia, Austria, Bangladesh, Barba-

dos, Belgium, Burkina Faso, Cameroon, Canada,Chile, Colombia, Cyprus, Denmark, Finland, Ger-many, Federal Republic of, Greece, India, Ireland,Italy, Japan, Jordan, Kenya, Kuwait, Lebanon, Leso-tho, Luxembourg, Malta, Mexico, Morocco, Nether-lands, Nigeria, Norway, Pakistan, Portugal, Republicof Korea, Senegal, Spain, Sudan, Sweden, Thailand,United Kingdom of Great Britain and Northern Ire-land, United States of America, Uruguay, Yugoslavia,Zambia.

Against: Bulgaria, Byelorussian Soviet Socialist Re-public, Cuba, Czechoslovakia, German DemocraticRepublic, Hungary, Poland, Romania, Ukrainian So-viet Socialist Republic, Union of Soviet Socialist Re-publics, Viet Nam.

Abstaining: Algeria, Angola, Argentina, Bahrain,Brazil, China, Congo, Cote d'lvoire, Democratic Peo-ple's Republic of Korea, Egypt, France, Gabon, Gua-temala, Iran (Islamic Republic of), Iraq, Israel, Liech-tenstein, Madagascar, Mozambique, Nicaragua,Oman, Panama, Peru, Philippines, Switzerland, Tuni-sia, Turkey, United Arab Emirates, Venezuela,Yemen, Zaire.

The draft resolution was adopted by 44 votes to 11,with 31 abstentions.

ADOPTION OF THE FINAL ACT OF THE CONFERENCE

66. The PRESIDENT invited the Conference toproceed to the adoption of the Final Act of the Con-ference (A/CONF. 129/12), it being understood that theappropriate dates or references would be entered bythe secretariat in the blank spaces in paragraphs 18,19 and 21 of the document.67. Mr. HERRON (Australia) observed that the firstsentence of paragraph 17 dealt with the referral to theCommittee of the Whole of those draft articles whichhad required substantive consideration, and of thepreamble and the final provisions of the draft conven-tion; the second sentence alluded to the draft articlesreferred directly to the Drafting Committee. He drewattention to the fact that several proposals concerningnew articles, one of which had been incorporated in theConvention as adopted, had also been considered bythe Conference initially in the Committee of the Whole.In order to ensure greater accuracy he suggested that


the beginning of the second sentence of paragraph 17should be modified to read: "It referred all other draftarticles of the basic proposal directly to the DraftingCommittee . . .".

68. The PRESIDENT concurred with that suggestionand said that the change would be made.

The Final Act was adopted without a vote.

Signature of the Final Act and of the Conventionand other instruments

[Agenda item 13]

69. In reply to a question from Mr. NEGREIROS(Peru), Mr. KALINKIN (Executive Secretary of theConference) said that the texts of the Convention and ofthe Final Act were expected to be ready for signature inthe early afternoon of Friday, 21 March 1986. He an-nounced the details of the ceremony of signature.

Closure of the Conference70. Mr. TEPAVICHAROV (Bulgaria) said that, whilehis delegation might not have always given that impres-sion during the final stages of the Conference, it hadconstantly endeavoured to be helpful and consistentand to act with that sense of fairness to which anotherdelegation had alluded.

71. On behalf of the Eastern European group of coun-tries and other socialist countries, he expressed deepappreciation of the manner in which the President hadconducted the deliberations of the Conference, and ofthe facilities which had been provided for the Con-ference by the host country. The Chairman and Vice-Chairmen of the Committee of the Whole were to becommended for their tireless efforts, and thanks werealso due to the secretariat of the Conference for theirassistance in the difficult task of elaborating a gener-ally acceptable text on the law of treaties betweenStates and international organizations or between inter-national organizations. The result of all those effortswas now before the Conference. A debt of gratitudewas owed to all who had contributed to the successfuldrafting of those provisions, which expressed a gen-erally acceptable compromise.

72. The PRESIDENT said that it would have indeedbeen a great success had the Conference been able toproceed to the very end of its business in the mannerwhich had characterized the major part of its work.Although the final day of the Conference's delibera-tions had brought frustration and disappointment forsome, it should not be forgotten that the substantivearticles of the Convention, in other words the body ofthe substantive law to be applied to the treaty relationsbetween States and international organizations or be-tween international organizations, had been acceptedby general agreement.73. Such a result could not have been brought aboutwithout the faithful and loyal assistance of a number ofpersons to whom he felt deeply obliged. They included,in particular, the Chairman and Vice-Chairmen of theCommittee of the Whole, who had assisted him in nu-merous difficult negotiating tasks; the Chairman ofthe Drafting Committee, to whom he had already paidtribute; the Chairmen of the different regional groups;the Chairman of the Task Force of the Group of 77; anda number of delegations which had provided invaluableassistance during the negotiations.74. It was customary, and might thus be considered asmerely traditional, to thank the members of the sec-retariat . On the present occasion, however, in a contextof great innovation, the burdens on the secretariat hadbeen particularly heavy and the demands for adaptationconsiderable. Not the least of its achievements wouldbe to have completed the preparations for the signatureof the Convention on time, for that was not always thecase; an expression of special gratitude was therefore inorder.

75. Lastly, it was to the participants in the Conference—so generous in their appreciation of his and the otherpresiding officers' contribution—that he addressed hisgratitude; without the co-operation of all of them theresults obtained would have been impossible. A body ofsubstantive rules had, he repeated, been adopted withgeneral agreement, and that was no mean achievement.76. He declared closed the United Nations Confer-ence on the Law of Treaties between States and Inter-national Organizations or between International Organ-izations.


SUMMARY RECORDSOF THE MEETINGS OF THE COMMITTEE OF

THE WHOLE

1st TO 30th MEETINGS

SUMMARY RECORDS OF THE MEETINGS OFTHE COMMITTEE OF THE WHOLE

1st meetingWednesday, 19 February 1986, at 5.25 p.m.

Chairman: Mr. SHASH (Egypt)

Election of Vice-Chairmen1. The CHAIRMAN said that, for the reason givenby the President of the Conference at its 2nd plenarymeeting, the Committee of the Whole should electtwo Vice-Chairmen. He understood there was generalagreement to elect Mr. Geraldo Eulalio do Nascimentoe Silva (Brazil) and Mr. Zdenek Pisk (Czechoslovakia)as Vice-Chairmen.

Mr. Geraldo Eulalio do Nascimento e Silva (Brazil)and Mr. Zdenik Pisk (Czechoslovakia) were electedVice-Chairmen of the Committee of the Whole by ac-clamation.

Election of the Rapporteur

2. The CHAIRMAN said that he understood therewas general agreement that Mrs. Kuljit Thakore(India), who had acted as Rapporteur at several pre-vious codification conferences, should be elected to theoffice of Rapporteur of the Committee. If there was noobjection, he would take it that the Committee wishedto elect Mrs. Thakore to that post.

Mrs. Kuljit Thakore (India) was elected Rapporteurof the Committee of the Whole by acclamation.

Organization of work

3. The CHAIRMAN said that at its 3rd plenarymeeting the Conference had referred to the Committeefor substantive consideration the draft articles listedin the attachment to the Secretary-General's note(A/CONF. 129/8), namely, articles 2, 3, 5, 6, 7, 9 (para-graph 2), 11 (paragraph 2), 19, 20, 27, 30 (paragraph 6),36 bis, 38, 45, 46 (paragraphs 2, 3 and 4), 56, 61, 62, 65(paragraph 3), 66, 73, 75, 77 and the annex entitled"Arbitration and conciliation procedures established inapplication of article 66".4. The first of those provisions was article 2, "Use ofterms". It had been the practice at previous codifica-tion conferences not to decide on definitions until thecorresponding substantive articles had been discussed.He therefore suggested the Committee should discussdraft article 2 briefly, so as to identify points of agree-ment or disagreement on its various elements, but defera decision on the article as a whole until it had dealt withthe other articles which the Conference had referred toit.

5. Mr. JESUS (Cape Verde) asked whether the Com-mittee intended to discuss the draft articles in the orderin which they appeared in the attachment to documentA/CONF. 129/8. If not, it should draw up a weeklyprogramme of work indicating which draft articleswould come up for consideration in a given week.6. The Committee should arrive at a consensus on theuse of terms; agreement on article 5, for example, wasentirely dependent on prior agreement on the termsused in article 2. If article 2 was agreed, it would bepossible to adopt other draft articles without leavingthem subject to the proviso of agreement on article 2.7. Mr. SCHRICKE (France) said that it would bepossible to discuss article 2 with a view to ascertainingthose points on which there was general agreement.Any terms which gave rise to reservations could then bediscussed in connection with the other draft articles.8. The CHAIRMAN said that if he heard no objectionhe would assume that the Committee wished to con-sider article 2 on a preliminary basis in order to deter-mine which terms in it were generally acceptable.

// was so decided.


[Agenda item 11 ]

Article 2 (Use of terms)

9. The CHAIRMAN invited the Committee to con-sider, as succinctly as possible, the title of draft article 2and the terms "treaty", "ratification" and "act of for-mal confirmation".10. Mr. HAYASHI (Japan) said that his delegationdoubted the necessity of introducing new terminologysuch as the expression "act of formal confirmation".The term "ratification" was well established. He wouldraise the matter again during the consideration of laterarticles.11. Mr. RAMADAN (Egypt) said that the term " rati-fication' ' should be reserved for States. It had long been

39

40 Summary records—Committee of the Whole

accepted, and still was, as denoting an act emanatingfrom the highest organs of a State, and there were nocorresponding organs in international organizations.His delegation therefore approved the use of the words"act of formal confirmation" as corresponding in thecase of international organizations to the procedureadopted by States.

12. Mr. HARDY (European Economic Community)said that his organization would state its views on theterm in detail when the matters touched on in article 2came up in the relevant substantive articles. For thetime being, he would simply say that the term "ratifica-tion" was currently used by international organiza-tions, including his own, in connection with multilateralagreements.

13. Mr. SANG HOON CHO (Republic of Korea) saidthat his delegation endorsed the view expressed byJapan and the observations made by the United Nationsin its written comments (A/CONF. 129/5, p. 105). Itwould be preferable to use the single term "accept-ance" with respect to international organizations.

14. Mr. JESUS (Cape Verde) said that the term "actof formal confirmation" was an innovation and shouldbe discussed in some detail. In dealing with definitions,the content was the important question. The Inter-national Law Commission had proposed the term inorder to establish a difference of treatment betweeninternational organizations and States; its recommen-dation should be followed, particularly since there wasa precedent for the use of the term in a major inter-national legal instrument, namely, the United NationsConvention on the Law of the Sea. With regard to thepoint made by the representative of the EuropeanEconomic Community, it should be remembered thatparagraph 2 of the article stated that the provisionsregarding the use of terms were without prejudice to themeaning which might be given to them in the rules ofany international organization.

15. Mr. RASSOLKO (Byelorussian Soviet SocialistRepublic) said that it was unnecessary to draw anexplicit parallel between acceptance of a treaty by an

international organization and ratification of a treaty bya State. The phrase "corresponding to that of ratifica-tion by a State" in subparagraph 1 (b bis) should there-fore be deleted.16. Mr. NASCIMENTO e SILVA (Brazil) said thatthe substance of ratification would be dealt with underarticle 11 and should not be discussed at the presentstage.17. Mr. BERNAL (Mexico) said that his delegationwould support the formulation recommended by theInternational Law Commission. The term "act of for-mal confirmation" was not an invention but an expres-sion well known in the usage of States and in inter-national law.18. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that his delegation found the term whollyacceptable. It enabled international organizations totake a flexible approach to establishing consent to bebound by a treaty.19. Mr. WANG Houli (China) said that, while it wasappropriate that the text should use different terms todenote the obligations and rights of the representativesof States and those of the representatives of inter-national organizations, there was no need to make adistinction between the terms "powers" and "fullpowers''. He would revert to that point in greater detailwhen those terms were discussed in connection witharticle 7.20. Mr. FLEISCHHAUER (United Nations) saidthat his organization had some misgivings about the useof the term "act of formal confirmation" and had setthem out in detail in its written comments.21. Mr. CRUZ FABRES (Chile) said that he wouldcomment on the substance of the question of ratifica-tion in connection with article 11. He endorsed the viewthat it was appropriate to draw a distinction betweenratification by a State and establishment by an inter-national organization of consent to be bound by atreaty.


2nd meetingThursday, 20 February 1986, at 10.30 a.m.


In the absence of the Chairman, Mr. Nascimento eSilva (Brazil), Vice-Chairman, took the Chair.



Article 2 (Use of terms) {continued)

Subparagraphs 1 (b) and (b bis,)

1. Mr. VIGNES (World Health Organization),speaking also on behalf of the International LabourOffice, said that the World Health Organization con-sidered it unnecessary to make a distinction in article 2that was not always justified in the case of internationalorganizations. It shared the view expressed by theUnited Nations representative at the previous meeting.Specifically, it considered that subparagraph 1 (b bis)

2nd meeting—20 February 1986 41

could be omitted from article 2. It considered that thedistinction made in subparagraph 1 (c bis) could also beomitted if subparagraph (c) was amended in appropriateterms.

2. Mrs. THAKORE (India) said that it might be con-fusing to use the term "ratification" in the case ofinternational organizations, in view of the fact that itcould mean both ratification on the international planeand referral to constitutional processes in the case ofStates. That did not apply to international organiza-tions, regardless of the procedure followed by the or-ganization to give formal consent to be bound by atreaty. The internal procedures of international organ-izations differed from those of States. A more generalterm should be used.

3. Mr. ABDEL RAHMAN (Sudan) urged acceptanceof subparagraph 1 (b bis) as drafted and observed thatthe commentary of the International Law Commission(see A/CONF. 129/4) made it abundantly clear why thedistinction had been thought necessary. At the pre-vious meeting, Mr. Fleischhauer had explained theUnited Nations' concern in not retaining the provi-sion. Although the United Nations was the leader ofinternational organizations, his Government thoughtit was wrong for it to advocate deletion. Subpara-graph 1 (b bis) formed part of the basic proposal, and theconvention as a whole would be weakened if it weredeleted and international organizations were equatedwith States.

4. Mr. TUERK (Austria) said that ratification wasnothing less than an act of formal confirmation by aState to be bound by a treaty, and he saw no contradic-tion between the two. In State practice, an act of formalconfirmation very often did not take the form of ratifica-tion but merely of an exchange of notes, for instance.Consequently, rather than making a formal distinctionbetween ratification and an act of formal confirmationin a new convention, he would favour a flexible ap-proach whereby it would be left to the States and inter-national organizations concerned to decide which termto use. While he appreciated the significance of theinclusion of the term "act of formal confirmation" inthe United Nations Convention on the Law of the Sea,he did not think that such an act should be treated assomething quite distinct from ratification. Possibly, thematter would be simplified if subparagraphs 1 (b),(b bis) and (b ter) were merged and amended to read:

" 'ratification' or 'act of formal confirmation', 'ac-ceptance', 'approval' and 'accession' mean in eachcase the international act so named whereby a Stateor an international organization establishes on theinternational plane its consent to be bound by atreaty".

Mr. Shash (Egypt) took the chair.

5. Mr. RASOOL (Pakistan) noted that the term "actof formal confirmation", had been proposed by theInternational Law Commission after lengthy debateand used in the United Nations Convention on the Lawof the Sea. As that Convention had been signed by159 States, the term in question could be said to enjoyvirtually universal acceptance.

6. He noted also that the term "ratification" had beenhallowed by time, and denoted the internal processes ofa State such as acts of parliament or of a head of State.Such high-level acts could not be bracketed with thedecisions of an international organization. For thatreason, he favoured the retention of the term "act offormal confirmation".7. Mr. ROCHE (Food and Agriculture Organizationof the United Nations) agreed with the World HealthOrganization representative. In his view, the distinc-tion introduced into the terminology was artificial andcould not be supported simply because it had been usedin the Convention on the Law of the Sea. Furthermore,whereas the Vienna Convention on the Law of Treaties'codified the secular practice of States, the draft articlessought to develop international law on the basis of apractice of international organizations, which was farshorter than that of States. If an intergovernmentalorganization could signify its consent to be bound in theform of acceptance, approval or accession, just like aState, it seemed somewhat illogical that, in anothercase by which it so signified its consent, a different termhad to be used.

8. Mr. ABDEL RAHMAN (Sudan) said that logicdictated that the term "act of formal confirmation"should be retained. The term was not really new, and areal difference was involved.9. Mr. PASCHKE (Federal Republic of Germany)said that his delegation supported the Austrian pro-posal, which avoided the problem of subjective ap-preciation of the definition in the article.10. Mr. SHIHATA (World Bank) said that, as anorganization that concluded more agreements annuallythan any other international organization and more thanmost States, the World Bank had a clear interest in theoutcome of the Committee's deliberations and wasanxious that sufficient flexibility was guaranteed tomeet the varied requirements of the different interna-tional organizations. It strongly favoured the Austrianproposal to combine all the terms used in one provision.11. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that the terminology before the Committeehad been arrived at following a lengthy and detailedexamination by the International Law Commission.That terminology was, moreover, logical in historicalterms, inasmuch as "ratification" involved an act bythe highest body of a State and could not be applied tointernational organizations. He had misgivings aboutthe Austrian suggestion. There was a logical distinctionbetween subparagraph 1 (b), which provided for rati-fication by the highest authority in a State, and sub-paragraph 1 (b bis), which provided for an act of formalconfirmation by the highest administrative authority inan international organization. The functions of a Statecould not be transferred to an international organiza-tion. Subparagraph 1 (b ter), for its part, pertained toacts performed by both States and international organ-izations. In the circumstances, he would urge the Com-

1 Official Records of the United Nations Conference on the Lawof Treaties (United Nations publication, Sales No. E.70.V.5),p. 287.


mittee to abide by the formula evolved by the Com-mission.12. Mr. CANCADO TRINDADE (Brazil) said thatwhen the Brazilian delegation had considered theexpressions "ratification" and "act of formal confir-mation" in the Sixth Committee of the General Assem-bly in the mid-1970s in its review of the work of theInternational Law Commission, it had indicated, on theone hand, the then innovation of the expression "act offormal confirmation", and, on the other hand, the dif-ficulties of an extension of the term "ratification" tointernational organizations which would arise from thefact that it might be taken to mean that texts could notbe adopted prior to a two-stage approval by a complexconsultative mechanism involving organs of distinctranks. He thought that the Austrian representative'ssuggestion might provide a flexible solution.

13. Mr. LEHMANN (Denmark) said that he under-stood the international organizations' concern thatthere should be flexibility in the terms of the conven-tion. Such flexibility would leave open the possibility ofdeveloping international law in that sphere. His delega-tion welcomed the Austrian representative's proposal.14. The CHAIRMAN noted that subparagraph 1 (b)would be fully discussed in connection with the rel-evant articles.

Subparagraphs 1 (c) and (c bis)

15. Mr. EHLERMANN (European Economic Com-munity) said that the use of the terms "full powers" forStates and "powers" for international organizationssuggested a distinction which was not in keeping withthe practice of the EEC in the making of treaties. Hisdelegation would have further comments to make onthat subject when the Committee considered the rel-evant articles, especially article 7.16. Mr. HAYASHI (Japan) said his delegation haddoubts regarding the necessity or usefulness of distin-guishing between "powers" and "full powers". Hesaw no practical merit in distinguishing between thetwo terms, and felt that the Convention should follow asclosely as possible the 1969 Vienna Convention. Theintroduction of artificial distinctions would makean already complex text more complicated. He wouldprefer to apply the term "full powers" to States andinternational organizations alike.17. Mr. CASTROVIEJO (Spain) said that distinctionsof terminology should be limited as far as possible. Itwas not logical in that case to reserve the terms "fullpowers" for States alone, since the "full" referred notto the capacity of the subject (whether organization orState) but to the capacity of the person carrying out theact related to the treaty to represent the subject. In bothcases the powers of the representative must be full.18. Mr. UNAL (Turkey) said that the capacity of aninternational organization to conclude treaties was notas full as that of States, since the former could concludetreaties only within its competence. However, wherethe international organization did have that compe-tence its representative had the same "full powers" as aState. His delegation therefore saw no need to distin-guish between "full powers" and "powers".

19. Mr. JESUS (Cape Verde) said that the rationalefor distinguishing between "full powers" and "pow-ers" was that it had been the intention during con-sideration of the matter in the Sixth Committee of theGeneral Assembly that a distinction should be madebetween States and international organizations. Thathad been taken into consideration by the InternationalLaw Commission when it made the distinction between"full powers" and "powers". If the history of theconcept of "full powers" were taken into account, itcould be better understood why the term was not ap-plied to international organizations, and why the Com-mission wished to introduce a new concept applicableto international organizations.20. Mr. SHIHATA (World Bank) said that subpara-graphs 1 (c) and 1 (c bis) did not relate to the question ofcapacity to conclude treaties, but defined the docu-ments which established the status of a representativeof the State or international organization. To imply thatthe powers of a representative of an international or-ganization were less than full could not be accurate.Such was not the practice of international organiza-tions, particularly the World Bank. His delegation sup-ported the use of a single term which was simple, ac-curate and defensible.21. Mr. RAMADAN (Egypt) said that his delegationsupported the use of a single term. The document ema-nating from an international organization designating aperson or persons to represent the organization for thepurposes set out in subparagraph 1 (c bis) was similar tothe corresponding document emanating from a State.Recognizing that the capability of international organ-izations was not as complete as that of States, thedocuments concerned did not refer to the competenceof the organization but to that of its employees and itsother representatives. It was thus better to use one termonly.22. Mr. ABDEL RAHMAN (Sudan) said that he wasin favour of retaining subparagraphs 1 (c) and 1 (c bis) aswell as subparagraphs 1 (b) and 1 (b bis) for reasonswhich he would explain in detail when the relevantarticles were discussed subsequently.23. Mr. DALTON (United States of America) saidthat his country's experience as a depositary showedthat in practical terms there was never a problem overthe distinction between "full powers" and "powers".24. Mr. FLEISCHHAUER (United Nations) said hisdelegation was not convinced of the need to distinguishbetween "full powers" and "powers". The question atissue was not the capacity of international organiza-tions but the powers of officers and agents of inter-national organizations acting as negotiators.25. Mr. BARRETO (Portugal) reiterated his delega-tion's view that article 2 should be discussed in depth atthe end of the meeting. If the flexible approach tosubparagraphs 1 (b), (b bis), {b ter) suggested by theAustrian representative were developed, a similar ap-proach should be taken in subparagraphs 1 (c) and(c bis). His delegation was in favour of having one termapplying to both States and international organizations.26. Mr. WOKALEK (Federal Republic of Germany)said that a flexible approach was required. He pointed


out that the terms "full powers" and "powers" couldnot be distinguished in German.27. Mr. SATELER (Chile) said that the two terms"full powers" and "powers" should be retained for thereasons set out in paragraph (10) of the InternationalLaw Commission's commentary to article 2. Althoughthere was no problem in practice, it was important thatthe differences between States and international organ-izations should be reflected in the terminology.28. Mr. PISK (Czechoslovakia) said that his delega-tion fully supported the views in paragraph (10) of theCommission's commentary to article 2. He believedthat further discussion of the matter should be reserveduntil consideration of article 7.29. Mr. AL-KHASAWNEH (Jordan) said that heagreed with the Spanish representative that unneces-sary distinctions of terminology should be avoided. Thematter under consideration was not the capacity ofinternational organizations to conclude treaties, but thepowers of their representatives. He agreed with theWorld Bank and United Nations representatives that anattempt to distinguish between "full powers" and"powers" was likely to result in confusion. Therewould be no loss if the distinction between "full pow-ers" and "powers" was abolished.

30. Mr. PAWLAK (Poland) said that the two schoolsof thought related not to substantive issues but to thephilosophy underlying the draft convention. It was amatter of giving names or labels to documents producedby representatives empowered to sign treaties on behalfof States or international organizations. While the des-ignation of the documents was not in itself important,different types of entity were being represented, andit was therefore better to follow the InternationalLaw Commission draft for the reasons set out in para-graph (10) of the commentary to article 2.

31. Mr. SCHRICKE (France) agreed with the Polishrepresentative that the matter was less one of substancethan of labels. The use of different terms had no bearingon the scope of the "powers" given to representativesor the capacity of those representatives to bind theinternational organizations or States that they repre-sented. His delegation felt that the terms proposed bythe International Law Commission should be retained.

32. Mr. KERROUAZ (Algeria) said that the estab-lishment of a distinction between the powers of Statesand international organizations in their capacity to con-clude treaties was fundamental. He asked whether theAustrian representative intended to put forward a for-mal proposal for merging subparagraphs 1 (b), (b bis)and (b ter) or whether his delegation would accept thecurrent draft if the Committee generally favoured itsretention.

33. Mr. TUERK (Austria) replied that his delegationwould discuss its suggestion with other delegations be-fore making a formal proposal.

34. Mr. RASOOL (Pakistan) said that he agreed withthe Polish representative that there was a philosophicalbackground to the arguments in favour or against re-taining the distinction between "full powers" and"powers". In that connection, it was necessary to bear

in mind the provisions of subparagraph 2 (a) of article 7(Full powers and powers) specifying that Heads ofState, Heads of Government and Ministers for ForeignAffairs were considered as having full powers "in vir-tue of their functions and without having to produce"any full powers in writing. That provision emphasizedthe distinction between the full powers of the repre-sentative of a State (which could be implied) and thepowers of a person representing an international organ-ization.35. He suggested that the discussion on subpara-graphs 1 (c) and 1 (c bis) should be postponed for thetime being.36. Mr. SZENASI (Hungary) said that there wasgeneral agreement on the need to draw a clear distinc-tion between States and international organizationswith regard to legal personality and to the capacity toconclude treaties. There was nothing in the develop-ment of contemporary international law to suggest thatthat distinction had been blurred in any way. The Inter-national Law Commission's draft articles had beenbased on that distinction, and the terminology used inthe various articles was the logical consequence of thatexisting distinction. He urged that the distinction bemaintained.

Subparagraph 1 (d)

There were no comments.

Subparagraph I (e)


Subparagraph I (f)


Subparagraph 1 fgj


Subparagraph 1 (h)


Subparagraph I (i)

37. Mr. JESUS (Cape Verde) said the use of the term"international organization" set forth in subpara-graph 1 (i) was a well-established one. It was in factidentical with that in the corresponding provision of the1969 Vienna Convention on the Law of Treaties. Hereserved the right to revert to the matter, in particularwhen the Committee came to discuss draft article 5.38. Mr. ECONOMIDES (Greece) pointed out that,for purposes of the draft convention now under discus-sion, it was not sufficient to define an "internationalorganization" merely as an "intergovernmental organ-ization". It was necessary to bring out also some of theessential features of such an organization. As he saw it,there were three such basic features. The first was thatthe organization's objectives were in the interests of itsmember States. The second was that the organizationpossessed international personality and the capacity toconclude international agreements. The third was thatits international capacity was exercised by its own or-gans at the international plane.


39. Of those three elements, there was at least onewhich he felt must be included in the definition insubparagraph (i), namely, the capacity to concludetreaties. He suggested that the subparagraph be re-worded on the following lines: " 'international organ-ization' means an intergovernmental organizationhaving the capacity to conclude treaties governed byinternational law within the meaning of the presentarticles."40. Mr. RAMADAN (Egypt) remarked that the draftconvention was intended to regulate the r6gime of thetreaties to which one or more organizations were par-ties, not the status of international organizations.41. That being said, it was his understanding that theexpression used in subparagraph (/) covered intergov-ernmental organizations some of which included mem-bers that were not yet States.42. Mr. ROMAN (Romania) said that his delegationwas not entirely satisfied with the paragraph. It was notenough to say that an international organization was anintergovernmental organization; it was necessary toadd that the organization had the capacity to concludetreaties. That would confine the scope of application ofthe draft convention to those organizations which hadinternational legal personality and were subjects of in-ternational law.43. The clarification he suggested was the more nec-essary in that an intergovernmental organization didnot necessarily and automatically have the capacity toconclude treaties. It had to be empowered to do so byits constituent instrument or the other rules of the or-ganization.44. Mr. VASSILENKO (Ukrainian Soviet SocialistRepublic) said that the definition in subparagraph (/)was unduly general. Greater precision was needed. Asthe draft convention under discussion was concernedwith the treaties of international organizations, thatdefinition must include the essential element of thecapacity of international organizations to conclude in-ternational treaties. In any case, the problem of thedefinition of an international organization would haveto be explored further when the Committee discusseddraft articles, in particular articles 5 and 6.45. Mr. VOGHEL (Canada) supported the Greek andRomanian representatives' suggestion that the defini-tion should include a reference to the capacity to con-clude treaties.46. Mr. ULLRICH (German Democratic Republic)agreed with the comments of the representatives ofGreece, Romania and the Ukrainian SSR. For the pur-poses of the draft convention under discussion, onlyintergovernmental organizations with the capacity toconclude treaties in accordance with their constituentinstruments could be taken into account.47. Mr. ALMODOVAR (Cuba) said that although thedefinition was to be found in both the 1969 ViennaConvention on the Law of Treaties and the 1975 ViennaConvention on the Representation of States in theirRelations with International Organizations of a Univer-sal Character, he endorsed the suggestions by the rep-resentatives of Greece, Romania and the UkrainianSSR.

48. Mr. WALDEN (Israel) said that his delegationsaw no particular point in trying to amend the perfectlysatisfactory definition provided by the InternationalLaw Commission. He reserved his further commentsuntil a later stage.

49. Mr. JESUS (Cape Verde) said that the purpose ofthe paragraph under discussion was to define the limitsof application of the draft articles and to specify whichinternational organizations were to be taken into con-sideration for purposes of the draft convention underdiscussion. Paragraph (19) of the International LawCommission's commentary indicated that three typesof organizations could fall within the scope of the draftarticles. The first was that of international organi-zations consisting exclusively of States. The secondwas that of organizations which, in addition to States,counted one or more other international organizationsas members. The third category was that of organiza-tions whose membership consisted exclusively of otherinternational organizations. The question thereforearose whether all three categories were to be covered.The Commission appeared to have worked on the as-sumption that only the first category—i.e., that of or-ganizations consisting entirely of States—was coveredby the articles.

50. In the circumstances, it seemed to him dangerousto try to frame a different definition of an internationalorganization. Such an exercise would affect a greatmany articles of the draft. It was desirable to retain thedefinition formulated by the International Law Com-mission.

51. Mr. ROCHE (Food and Agriculture Organizationof the United Nations) said that the International LawCommission's commentary appeared to indicate thatthe definition in subparagraph (0 included the threecategories mentioned by the previous speaker.

52. The wording of subparagraph (0 was not self-explanatory for purposes of future negotiations. Asregards the treaty-making capacity of international or-ganizations, to which some representatives had re-ferred, he reserved his organization's position until theCommittee examined draft article 6.

53. Mr. TREVES (Italy) said that the wording of sub-paragraph (0, which was identical with the corre-sponding provision of the 1969 Vienna Convention, wasintended to distinguish between intergovernmental or-ganizations and non-governmental organizations; it didnot exclude international organizations whose mem-bership included other organizations.

54. The inclusion of a reference to the capacity toconclude treaties would introduce a controversial legalpoint into the definition. The question of the capacity toconclude treaties should be left to the internal law ofthe organization concerned and to general internationallaw. He reserved his right to revert to the matter duringthe discussion of draft article 6.

55. Mr. MONNIER (Switzerland) agreed that itwould serve no useful purpose to include a reference tothe question of the capacity to conclude treaties. Thatquestion would be discussed in connection with laterarticles, in particular articles 5 and 6.


56. Mr. ZANNAD (Tunisia) supported the view thatit would be unproductive to go into the substance of thequestion of the capacity to conclude treaties at thepresent stage.57. Mr. RASOOL (Pakistan) reserved his right to re-vert to the question when the Committee consideredarticle 6.58. Mrs. THAKORE (India) asked the Greek andCanadian representatives whether an international or-ganization whose constituent instrument was silent onthe question of concluding treaties would not be re-garded as an "international organization" for the pur-poses of the draft articles if a reference to the capacityto conclude treaties was introduced.

59. Mr. SHIHATA (World Bank) welcomed thosecomments. The constituent instruments of most inter-national organizations did not contain explicit provi-sions on the capacity to conclude treaties. That wastrue of many organizations which had concluded a largenumber of treaties. The inclusion in the present defini-tion of any reference to the capacity of an organizationto conclude treaties would have the effect of restrictingthe application of the draft articles to a very smallnumber of organizations.

60. Mr. KOECK (Holy See) doubted the wisdom ofattempting a more detailed definition of an "interna-tional organization". In the first place, the draft articleswere not intended to deal with international organiza-tions as such but rather with the treaties concluded bythem. There was therefore no need for an exhaustivedefinition of an international organization, a conceptwhich was well known in international doctrine andpractice.

61. Moreover, the insertion of the phrase '' having thecapacity to conclude treaties", as suggested by therepresentative of Greece, would in some way prejudicearticle 6, which dealt with the capacity of internationalorganizations to conclude treaties and covered ade-quately the problem under discussion.

62. Mr. SZENASI (Hungary) agreed that the Com-mittee was not called upon to draw up an exhaustivedefinition of an international organization but thoughtthat the terms of subparagraph (/) should be made moreprecise. He associated himself with the Greek rep-resentative's suggestion.

63. Mr. ECONOMIDES (Greece), replying to the In-dian representative's question, drew attention to thedefinition of "treaty" in subparagraph 1 (a) of article 2.Subparagraph 1 (i) had to be construed in the light ofthat paragraph. The reference to an intergovernmentalorganization was clearly intended to apply only to thoseorganizations with the capacity to conclude treaties.

64. Mr. ABDEL RAHMAN (Sudan) believed that arestrictive definition would be undesirable. The elasticdefinition in the International Law Commission's textof subparagraph 1 (<) should be retained.

Subparagraph I (j)

65. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that his delegation would address itself in

detail to the provision in subparagraph (/), which in itsview required further clarification, at a later stage.66. Mr. TUERK (Austria) said that it would certainlybe undesirable to freeze practice—which obviouslyplayed an important role in the activities of interna-tional organizations, including treaty-making activ-ities—at any point in time, for example at the momentof entry into force of the projected convention. He wasnot altogether convinced by the argument put forwardby the International Law Commission to justify the useof the adjective "established", especially its referenceto the ruling out of disputed practice. That seemed to beanother issue altogether. Nor would it be easy to deter-mine when the practice of newly created organizationscould be considered "established". For those reasons,he favoured the deletion of the adjective from the draft.

67. On the other hand, and although he also haddoubts as to its utility, he could agree to maintenance ofthe qualification "relevant" in connection with "de-cisions and resolutions", and would merely suggestthat it be applied to "practices" as well.68. Mr. ECONOMIDES (Greece) observed that al-though "relevant rules" were mentioned in severalof the draft articles before the Committee, nowhere wasthe term "relevant" defined. With the aim of makinggood that deficiency and avoiding possible miscon-ceptions, his delegation had circulated a proposal(A/CONF. 129/C. 1/L. 1), in accordance with which sub-paragraph 1 (/) would be amended by the addition of thefollowing sentence:

" 'relevant rules' means those rules of the organiza-tion that are applicable within the scope of the arti-cles containing this term".

69. Mr. ULLRICH (German Democratic Republic)said that although the draft convention tabled by theInternational Law Commission provided a solid foun-dation for negotiations, the text required some revision,particularly in so far as a clear distinction betweenStates and the status of international organizations wasto be made.70. It was indefensible to accord international inter-governmental organizations the same status as States.While the latter, by virtue of their sovereignty, werefull subjects of international law, the former wereonly subjects of international law derived from States,their special status being determined by their memberStates. His delegation considered that to be the basic orkey issue facing participants in the Conference in theircodification work.71. Since the term "rules of the organization" in thesubsequent articles of the draft convention was of far-reaching substantive significance, it could not be con-sidered in separation from its definition, as set outin subparagraph (/)• The delegation of the GermanDemocratic Republic could not accept the definition asdrafted, and had submitted a proposal for amendment,which had unfortunately not yet been circulated.2

72. In the view of his delegation, the definition of"rules of the organization" constituted the core of arti-

2 Subsequently circulated as document A/CONF. 129/C. 1/L.2.


cle 2 and was of essential importance for the further useof the term, which, throughout the text of the conven-tion, concerned both the legal status of the contractualrelations between States and international organiza-tions and the relationship between the contractualrights and obligations of international organizations andthose of their member States.73. It was the legal consequences of the use of theterm that made it necessary to exercise a great deal ofcare where the definition itself was concerned. In thatconnection, it should be borne in mind that the draftbefore the Committee dealt not only with universalorganizations but also with a great number of regionalorganizations. There could be no doubt that, as regardsthe latter, the consent of all States concerned was re-quired for adopting or amending the rules of the organ-ization. However, the proposed draft did not take dueaccount of that.74. In his delegation's view, it was the task of theConference to obtain a clarification concerning the con-ditions under which an international organization wasentitled or qualified to conclude treaties under inter-national law. The present definition did not meet thatrequirement to the necessary extent. In particular, theterms "resolutions" and "practice" were employed inthe draft convention separately from the constituentinstruments of a given organization. It was the view ofhis delegation that the constituent instruments of anorganization were (or legally binding acts equal to themunder certain preconditions could be) the decisive cri-teria for judging an international organization as havingcapacity and competence to conclude treaties. In hisdelegation's opinion, the practice of an organizationcould be used as a criterion only in so far as that practicewas in accordance with the constituent instruments.75. Those reflections had been taken into account bythe amendment submitted by his delegation. He hopedit would receive the Committee's support.76. Mr. FLEISCHHAUER (United Nations) con-curred with the Austrian representative that the adjec-tive "established" might be deleted; its maintenancecould have the effect of preventing the further develop-ment of organizations' treaty-making practice and in-hibit adaptation to future needs.77. Mr. BERNAL (Mexico) also believed that theterm "rules" required further clarification, since itmight appear not to encompass provisions at the high-est level of the international organizations' "internallaw". It might indeed be preferable to replace the termby one more appropriate, such as "norms".78. His delegation understood the term "practice" tosignify practice backed up by opinio juris, and notmerely precedents suddenly invoked in deciding a par-ticular case.79. Lastly, in view of the fact that international organ-izations had varied structures, and in some cases incor-porated organs that were virtually autonomous, he be-lieved that the provision might indicate that, whereappropriate, the rules referred to were those of theorgans as well.80. Mr. EHLERMANN (European Economic Com-munity) said that it was important to ensure that any

definition covered all the legally relevant rules.That was especially true in the case of the Community,whose rules included, inter alia, decisions of theEuropean Court of Justice, which had made a majorcontribution to its treaty-making powers. The matter,including the use in later articles of the adjective "rel-evant", obviously required the most careful consider-ation.81. Mr. RASSOLKO (Byelorussian Soviet SocialistRepublic) observed that the term under discussion hada special bearing on the determination of the capacityof international organizations to conclude treaties (arti-cle 6), and concurred with the German DemocraticRepublic representative that further clarification wascalled for. His delegation would address itself in detailto the subject in due course.82. Mr. JESUS (Cape Verde), invoking rule 29 of therules of procedure, declined to comment in detail on theproposal by the Greek delegation.83. Recapitulating the reasoning which had led theInternational Law Commission to draft the proposalunder consideration, he described as wise the decisionto derive both a precedent and an ipsis verbis text fromthe Convention on the Representation of States in theirRelations with International Organizations, althoughthat instrument was not in force. He could not agreewith those speakers who had advocated the deletion ofthe adjective "established", which figured prominentlyand significantly in United Nations usage. He furtherbelieved that the concern expressed by the represen-tative of the European Economic Community was cov-ered by the qualification "relevant" applied to the res-olutions and decisions referred to. There could be littledifficulty in determining that a decision by the Euro-pean Court of Justice amounted to a decision by theCommunity.84. For those reasons, and in the absence of any bet-ter alternative, he favoured acceptance of the text pre-pared by the International Law Commission.85. Mr. ROMAN (Romania) agreed with other speak-ers that the provision under consideration required fur-ther clarification and amplification. He stressed in par-ticular that the practice referred to must itself be basedon the rules or constituent instruments of the organiza-tion or arise from its decisions and resolutions.86. Mr. ABDEL RAHMAN (Sudan) said that sinceform, structure, powers and functions, together withthe amount, extent and significance of practice, variedgreatly from organization to organization, some meas-ure of qualification seemed desirable where the ref-erence to the latter was concerned. He consequentlyfavoured maintenance of the word "established".More generally, he considered that subparagraph 0)reflected the veracity that should be the objective of theconvention.

87. Mr. MONNIER (Switzerland) noted that the In-ternational Law Commission had opted for a descrip-tive, enumerative approach in its definition, rather thanone of synthesis or generalization. However, althoughthe term "decisions and resolutions" might indeedcorrespond exactly with the technical designations ofactions taken by the more important international or-

3rd meeting—20 February 1986 47

ganizations, there were other actions taken by manyother organizations that could not, technically, be de-scribed as such. He consequently wondered whether ina multilateral convention of the type envisaged, it mightnot be wiser to seek a more comprehensive formula-tion, such as "precepts established by", which theInternational Law Commission had itself employed inits commentary; the term "decision" might also beused, provided that it was taken to signify the expres-sion of the will of the organization in question.

88. Concerning the adjective '' relevant'', he said thatwhile such a qualification was perfectly apposite in thearticles dealing with specifics (articles 5 and 6, forexample), it seemed to have no significance in the pro-vision under consideration. He favoured its deletion.

89. He agreed with the Austrian and the United Na-tions representatives that it would be useful to deletethe adjective "established". Organizations did, or didnot, have practice. To seek to determine whether suchpractice was "established" might lead to difficulties.

90. Finally, he suggested that if the rules of an organ-ization were to be quite comprehensively defined as itsconstituent instruments, decisions and practice, thequalification "in particular" would be unnecessary.

91. Mr. SCHR1CKE (France) said that his remarkswould be of a preliminary nature. Those who had par-ticipated in the drafting of the Convention on the Rep-resentation of States would recall that the definitionreproduced therefrom had been proposed by the del-egation of his country, and adopted unanimously. Ob-viously, therefore, he favoured the text submitted bythe International Law Commission and—although hecould consider further improvements—would opposeany proposals that deformed its intended scope. Thus,he could not countenance deletion of the adjective"relevant". As the Special Rapporteur had told theCommission, the adjective was indispensable for en-suring that only those decisions and resolutions wouldbe considered which had legal consequences and assuch formed part of the organization's "internal law".Nor could he accept deletion of the adjective "estab-lished" which, since practice could indeed be hesitant,confused or disputed, offered a necessary legal safe-guard.

92. The CHAIRMAN said that since the present dis-cussion was of a preliminary nature, and in the absenceof any objections, he proposed to invoke the provisionsof the final sentence of rule 29 of the Rules of Procedureconcerning the consideration of amendments.


3rd meetingThursday, 20 February 1986, at 4 p.m.


Consideration of the question of the law of treatiesbetween States and international organizations orbetween international organizations, in accordancewith General Assembly resolutions 37/112 of 16 De-cember 1982, 38/139 of 19 December 1983, 39/86 of13 December 1984 and 40/76 of 11 December 1985(A/CONF.129/4)


Article 2 (Use of terms) {continued)

Subparagraph 1 (j) (continued)

1. Mr. AENA (Iraq) said that subparagraph (/) neededto be simpler and clearer. It should not go into unneces-sary details which might cause problems concerning thelegal personality of an international organization or itsstatus as a subject of international law. The word "in-ternational" might be inserted before the word "organ-ization" in order to make the meaning clearer, but hehad doubts about any wording which appeared to putdecisions and resolutions on the same footing as con-stituent instruments. The proposal by the ByelorussianSoviet Socialist Republic, the German Democratic Re-public, Poland, the Ukrainian Soviet Socialist Repub-lic and the Union of Soviet Socialist Republics(A/CONF.129/C.1/L.2) had merits, but the phrase "le-gally binding instruments based on them" might unduly

limit the functions and rules of procedure of interna-tional organizations. The original approach was muchbroader.

2. Mr. RASOOL (Pakistan) asked the Expert Consul-tant what the Commission had understood by the term"decision". Since it preceded the word "resolutions",which were usually adopted by the political organ of aninternational organization, his delegation had assumedthat it too referred to an act of the political organ, butsome speakers had indicated that it might include adecision by the judicial organ of an international or-ganization. The wording proposed in the five-Poweramendment might have a very limiting effect, since itdid not take into account the practice of the UnitedNations, whose political organ had made decisions andpassed rsolutions on certain international agreements.

3. He could accept the amendment proposed byGreece (A/CONF.129/C.1/L.1).

4. Mr. ALBANESE (Council of Europe) said that hisorganization favoured a very general provision in viewof the variety of situations obtaining in internationalorganizations. In the case of the Council of Europe,regard must be had not only to its Statute, which wasnot very explicit on the subject of treaty-making, butalso to the decisions of the Committee of Ministers,which were not always couched in the form of resolu-


tions, and above all to practice. Any attempt to be tooprecise would create difficulties; for example, the term"legally binding instruments" could not cover the sit-uation within the Council of Europe. His organizationpreferred the original text of the subparagraph. Like theInternational Law Commission, it understood the ad-jective "relevant" to refer to rules which had a bearingon the subject-matter of the draft articles.5. Mr. PISK (Czechoslovakia) said that the subpara-graph would benefit from amendment. It was true thatthe Commission had taken the wording from the 1975Vienna Convention on the Representation of States inTheir Relations with International Organizations of aUniversal Character,1 but in his view the term "rules ofthe organization" had a larger significance in the draftarticles and its definition therefore warranted carefulattention. The constituent instruments of internationalorganizations were of crucial importance, since theyrepresented international treaties in which States hadlaid down the purposes and functions of such organiza-tions as well as their powers, including their capacity toconclude treaties. The constituent instrument shouldtherefore take priority over any rules, decisions or res-olutions adopted by the competent bodies of the organ-ization. His delegation supported the wording proposedby the five Powers, because it placed due emphasis onthe constituent instrument and replaced the ambiguousand controversial expression "decisions and resolu-tions" by the more precise term "legally binding in-struments".

6. Mr. SHIHATA (World Bank) said that subpara-graph 0) was not a definition of the term "rules of theorganization" and merely offered examples of them.The list of examples might be prefaced by wording suchas: " 'rules of the organization' means the norms gov-erning the conduct of the organization, including inparticuler . . .' ".7. Mrs. THAKORE (India) said that the definitionof the expression "rules of the organization" was in-tended to cover the whole of the law of internationalorganizations. It included a reference to establishedpractice, which was an essential source of such law. Intheir comments on the definition, some internationalorganizations had indicated that the term "establishedpractice" might deter innovation, but in its commen-tary the International Law Commission had disclaimedany wish that such should be the case. The use of thephrase "in particular" gave the provision the requisiteflexibility. Her delegation found the Commission'sdefinition acceptable and endorsed the comments madeabout it by the French and Cape Verde representativesat the previous meeting. It was unable to support thewording proposed by the five Powers, because it wasrestrictive and would create problems of interpretation.

8. Mr. GILLET BEBIN (Chile) said there was somejustification for using a definition which differed fromthat in the 1975 Vienna Convention. It was of supremeimportance that the conduct of international organiza-tions should be fully consistent with their constituent

' See Official Records of the United Nations Conference on theRepresentation of States in Their Relations with International Organ-izations, vol. II (United Nations publication, Sales No. E.75.V.12),p. 207.

instruments. The competence of international organ-izations was essentially limited by the will of their mem-ber States and was laid down in their constituent in-struments. His delegation felt strongly that any wordingtending to erode the mandatory force of a constituentinstrument should be avoided. That was also the foun-dation of the legal position of most States in the West-ern hemisphere. Recently, in fact, the Organization ofAmerican States had adopted an amendment to article 1of its Charter to the effect that the Organization had nopowers other than those expressly conferred upon it bythe Charter.9. His delegation had serious doubts about the defini-tion of the term "rules of organizations" proposed bythe International Law Commission, since it placed theconstituent instrument and established practice on anequal footing. The constituent instrument was an inter-nationally binding legal act, and if established practicewas not subordinated to it there would be a violation ofthat act. Article 1 of the OAS Charter expressly in-dicated the obligation of the organization to conductitself in accordance with its constituent instrument.That obligation applied to all international organiza-tions regardless of whether it was expressly stated intheir statutes. A constituent instrument might in fact becalled the constitutional law of an international organ-ization, and no derogation from it, including the pretextof established practice, was acceptable.10. Mr. WANG Houli (China) said that the languageof the definition should be more precise. The treaty-making capacity of an international organization de-pended on the will of its member States, and that willwas primarily reflected in the constituent instrument ofthe organization. The definition should therefore takeaccount of the capacity of international organizations tomake treaties by virtue of their own resolutions, de-cisions and established practice, and to do so only inconformity with the goals and purposes laid down intheir constituent instruments. The Chinese delegationunderstood the definition in that way and therefore op-posed the idea that the words "relevant" and "estab-lished" should be deleted as proposed at the previousmeeting by the representatives of Switzerland and Aus-tria, respectively.11. Mrs. DIAGO (Cuba) said that since the conven-tion would apply to all international organizations, bothuniversal and regional, the Conference did not have tokeep to rules adopted in conventions such as the 1975Vienna Convention. She agreed that the expression"rules of the organization" should be carefully anal-ysed. Her delegation supported the proposal of the fivePowers. It took the view that the practice of an organ-ization should be based on its constituent instrumentand that the expression "rules of the organization"meant the constituent instrument and other provisionsand practices adopted by the organization in keepingwith that instrument.12. Mr. SZENASI (Hungary) said that his delegationfavoured a more precise definition of the term "rules ofthe organization" that would eliminate any uncertaintyaroused by the words "in particular" and "resolutionsand decisions". It therefore supported the more com-prehensive and unambiguous wording proposed by thefive Powers.

3rd meeting—20 February 1986 49

13. Mr. VIGNES (World Health Organization) saidthat his organization approved the text proposed by theInternational Law Commission, since it took fully intoaccount all the rules of an organization. If, however, theproposal of the five Powers found favour, it would beadvisable to amend it by substituting the words' 'formalacts" for "legally binding instruments", so as to takeaccount of the fact that, even though some resolutionsor decisions of an organization could be considered asnot legally binding, they were none the less rules in thebroad sense, at least for the secretariat of the organiza-tion, which was usually the organ called upon to nego-tiate treaties.14. Mr. TALALAEV (Union of Soviet Socialist Re-publics) said that while the definition of the term "rulesof the organization" proposed by the International LawCommission had been acceptable for the purposes ofthe 1975 Vienna Convention, it had two obvious short-comings as far as the present draft convention wasconcerned. First, it took no account of the para-mount role of the constituent instrument in the systemof sources of capacity of international organizations,and secondly, it paved the way for international organ-izations, through the adoption of resolutions and de-cisions and through other acts and practices, to departfrom the requirements of their constituent instrumentswhich in particular regulated their capacity to con-clude treaties. The proposal co-sponsored by his del-egation was intended to eliminate those shortcomingsby stressing the significance of the constituent instru-ment of an international organization as the mainsource of its rights and capacity to conclude treaties,and by eliminating the possibility of it adopting resolu-tions, decisions or practices that might be a departurefrom the requirements of the constituent instrument inthat area. Consequently, any resolution or decisionwhich conflicted with the provisions of the constituentinstrument would be legally invalid.

15. Cases involving invalid resolutions or decisionsregrettably had occurred in the past, and needed to beprevented in the future. Furthermore, the proposalwas consistent with the approach recommended bySwitzerland at the previous meeting, namely, to keep togeneral terms. The Conference was drawing up a legalconvention which would be a source of internationallaw and should therefore possess legal rather thanmoral force and consequently be based on legallybinding rules. Lastly, the proposal upheld the conceptof established practice, which must correspond to theconstituent instrument of the organization.16. Mr. BARRETO (Portugal) said that he would wel-come the opinion of the Expert Consultant with regardto the words "constituent instruments, relevant de-cisions and resolutions".17. Mr. PASCHKE (Federal Republic of Germany)said that his delegation strongly supported the textproposed by the International Law Commission. Thewords "relevant" and "established" provided safe-guards which should meet the concerns of all del-egations.18. Mr. REUTER (Expert Consultant) said that theCommission had drawn the words "relevant decisions

and resolutions" verbatim from the 1975 Vienna Con-vention, which had been given the seal of approval bythe duly empowered delegations of Governments. In-terpretation of the term' 'rules of the organization" wasaccordingly a matter for Governments themselves.19. The three elements of the definition—constituentinstruments, relevant decisions and resolutions—de-rived both from written documents and from the estab-lished practice of organizations. In addition, the orderin which they appeared in the text was not arbitrary,but indicated a certain progression. It was importantto remember that the status of "decisions and reso-lutions" varied from one organization to another,and that whereas "decisions" were categorical andbinding, "resolutions" were less categorical and notnecessarily binding. Thus, while it might be objectedthat the formulation in the basic proposal created un-certainty, it none the less conferred some measure offlexibility on the draft: hence its adoption by the Inter-national Law Commission.

20. It was questionable whether the Conference hadcompetence to determine what the rules of an organiza-tion should be in absolute terms, since each organ-ization was an individual case. However, he doubtedwhether any organization would exclude establishedpractice as a source of its internal law. It was for theConference to decide whether the existing wording,which was admittedly clumsy, was not after all the best.

21. Mr. ECONOMIDES (Greece) said that the sheervariety of terms used to denote instruments and acts—statutes, conclusions, agreements, proposals, opin-ions, measures, regulations and decrees, to mentiononly a few—was such that the best solution wouldperhaps be to follow the suggestion made at the pre-vious meeting to replace the term "relevant decisionsand resolutions" by"relevant acts" and to delete thewords "in particular".

22. Mr. REUTER (Expert Consultant) said that hefelt it would be best for changes of that kind to bediscussed in the Drafting Committee.

23. The CHAIRMAN said that, if he heard no ob-jection, he would take it that the Committee referredthe wording of the subparagraph to the Drafting Com-mittee.

// was so decided.

Paragraph 2

24. Mr. HAYES (Ireland) said that the representativeof Poland at the previous meeting, had rightly pointedto the fact that the terms used in paragraph 1 wereeffectively "labels". Like them, the introductorywording of paragraph 1 was intended to facilitate theformulation of subsequent articles, and that intentionwas reinforced by paragraph 2. The criterion to beborne in mind in the Committee's deliberations was theadequacy of the terms used in article 2 for the purposesof the articles as a whole, rather than any extraneousconsiderations.



4th meetingFriday, 21 February 1986, at 3.25 p.m.




Article 2 (Use of terms) (continued)

Subparagraph I Q) (concluded)

1. Mr. WANG Houli (China) said that the centralpoint of subparagraph 1 (j) was that the treaty-makingcapacity of an international organization could comeonly from the will of its member States as reflected in itsconstituent instruments; the term "rules of the organ-ization" therefore meant not only the constituent in-struments but also such relevant decisions, resolutionsand established practice as were in conformity with theobjectives and purposes specified in the constituentinstruments. While the wording proposed in documentA/CONF. 129/C. 1/L.2 was an improvement on the orig-inal subparagraph, it did not make it sufficiently clearthat established practice too must conform to the con-stituent instruments. Also, as other representatives hadindicated, the term "legally binding instruments" inthe amendment was not wholly adequate, since legallybinding acts were not confined to instruments. Hisdelegation therefore suggested the following wordingfor the subparagraph: "(/) 'rules of the organization'means the constituent instruments of the organizationand its relevant acts and established practice based onthe constituent instruments". It was not necessary tospecify that the term "relevant acts" included all rel-evant decisions and resolutions and similar acts of aninternational organization.

Article 3 (International agreements not within thescope of the present articles)

2. Mr. JESUS (Cape Verde) said that there was alacuna in the text proposed by the International LawCommission, namely, in regard to international agree-ments between subjects of international law other thanStates and international organizations. His delegationhad submitted a proposal to remedy that shortcoming(A/CONF. 129/C. 1/L.5 and Corr.l) and suggested thatthe new subparagraph which it had recommendedshould be placed after the existing subparagraph (ii) andbecome subparagraph (iii), with the present subpara-graph (iii) becoming subparagraph (iv).3. Mr. SCHRICKE (France), introducing the amend-ment proposed by his delegation (A/CONF. 129/C. 1/L.I 1), said that article 3 was at best of doubtful utilityand at worst a possible source of confusion.

4. The scope of application of the draft articles as awhole was clearly defined in article 1 and further elab-orated in article 2. Those two articles made it clear thatthe future convention could have no legal effect oninternational agreements other than those governed byinternational law and concluded in writing between oneor more States and one or more international organiza-tions or between international organizations. In 1968the French delegation to the United Nations Confer-ence on the Law of Treaties had pointed out, in connec-tion with the text of article 3 of the draft articles on thelaw of treaties proposed by the International Law Com-mission, that article 3 merely restated the situationcreated by articles 1 and 2.1 Thus article 3 would in anyevent be of little use. It could of course be said thatsince that Conference had nevertheless decided to in-clude such an article in the Convention it approved in1969, and since the present draft articles were intendedto parallel that Convention, it would be appropriate toinclude a similar provision in it, amended as necessaryto suit the different scope of the new articles.5. The analogy, however, was deceptive. The pur-pose of the draft articles considered in 1968 had beenmore ambitious than that of the present draft, and in-deed than the text finally adopted by the Conference.The goal of the draft articles on the law of treaties hadbeen to establish the rules of the law of treaties ingeneral, whether concluded by States or by other sub-jects of international law. It had therefore seemed sen-sible to specify that the text, despite its very broadscope of application, did not claim to be exhaustive orto impair either the validity of agreements outside itsscope of application or the application of rules of inter-national law other than those deriving from the Con-vention. In the event, the Conference had decided torestrict the scope of the 1969 Convention to treatiesbetween States and had drafted article 3 to take that intoaccount, making it clear that the provisions of the Con-vention would apply to the relations of States as be-tween themselves under international agreements towhich other subjects of international law were alsoparties.

6. The position at the present Conference was entirelydifferent. The draft articles were an adaptation to aparticular category of treaties of the rules set forth inthe 1969 Convention. The grounds for dealing with thesituation addressed by article 3 of that Convention wereno longer present.7. The fact that the present draft article 3 was of littleuse would not be sufficient justification for deleting it, if

' See Official Records of the United Nations Conference on theLaw of Treaties (United Nations publication, Sales No. E.68.V.7),Summary records of the Committee of the Whole, 7lh meeting,para. 56.

4th meeting—21 February 1986 51

the article did not present the additional disadvantageof being a possible source of confusion. Its wording wasindeed very complex, and undoubtedly it could hardlybe otherwise; unlike article 3 of the 1969 Convention, ithad to take into account not only the existence of inter-national agreements other than the treaties covered bythe draft articles but also the provisions of the 1969Convention itself. It might prove very difficult, not tosay controversial, to interpret, particularly in regardto its relationship with the 1969 Convention. Moreover,there was always the risk that, by seeking to list all thekinds of agreements that fell outside the scope of ap-plication of the proposed convention, the article mightoverlook one or more. The amendment proposed by thedelegation of Cape Verde was an illustration of the kindof negative approach whereby the article sought todefine what the scope of application was not, ratherthan what it was. As a positive approach to the sit-uation, his delegation thus proposed that the articleshould be deleted.

8. Mr. HAYASHI (Japan) said that article 3 enumer-ated certain categories of international agreement towhich the proposed convention would not apply, andsafeguarded their legal force. While his delegation hadno argument with the general thrust of the article, whichit believed could be useful in the same way as article 3 ofthe 1969 Vienna Convention, it had some difficulty withthe drafting of the first half of the article. The enumer-ation of the types of international agreement whichwould not be affected was not exhaustive and con-stituted a clear departure from article 3 of the ViennaConvention. As it stood, the text left out agreementsbetween States, international agreements betweenStates and subjects of international law other thanStates and international organizations, and interna-tional agreements between such other subjects of inter-national law. It was clearly not the intention of theInternational Law Commission to deny protection tothose agreements, and the gap should therefore be filledby making a change in the drafting. One way of doingthat would be to follow the Commission's approach andtry to expand the list of categories of agreement suit-ably, but the resulting text would be very cumbersome.An acceptable alternative to attempting to list all con-ceivable categories of agreement would be to refer to"certain international agreements", as suggested in theproposal put forward by his delegation in documentA/CONF.129/C.1/L.9; that would considerably shortenand simplify article 3 without changing the Commis-sion's intention or the substance of its text. He hopedthat the new text would commend itself to the Commit-tee as a compromise.

9. Mr. CASTROVIEJO (Spain) sait that his delega-tion did not think article 3 was either superfluous orbadly drafted. It was true that it was somewhat lengthyand detailed, but the topic required a series of distinc-tions and clarifications, without which its application tointernational agreements between States and interna-tional organizations could not be properly understood.He appreciated that some of those aspects might notseem appropriate to some delegations, including thereference in the final subparagraph of the article to"other subjects of international law". His delegationnevertheless considered that the reference was not out

of place in the article, and it urged that the text shouldbe retained as it stood, as being the outcome of a com-promise in the International Law Commission.

10. Mrs. THAKORE (India) said that her delegationhad no difficulty with article 3 as adopted by theCommission. The article had the merit of clarity, al-though the wording was cumbersome. In view of theincreasingly frequent conclusion of unwritten agree-ments, it was necessary to specify that the draft articlessought to govern only agreements in written form. Thesubstitution of "subjects of international law" for theterm "entities" had been an improvement, as the lat-ter might have given rise to problems. The expression"subjects of international law" had, moreover, beenused in the 1969 Vienna Convention. The requirementof the generally recognized principle that internationalagreements could only be concluded between subjectsof international law had thus been met. Her delegationdid not share the view that, since the scope of the draftarticles as a whole was clearly indicated in article 1,article 3 could simply state that the articles did notapply to treaties to which one or more subjects ofinternational law other than States or international or-ganizations were parties. As her delegation found arti-cle 3 acceptable in its present form, she could notsupport the French proposal. The amendments pro-posed by Japan and Cape Verde might be referred to theDrafting Committee.

11. Mr. GAJA (Italy) said that his delegation hadsome misgivings about article 3. Although the text ap-peared to follow the corresponding article of the 1969Vienna Convention closely and could thus be read asconfirming that Convention, in fact it conveyed theimpression that the draft articles were intended to pro-vide a text on the law of treaties that would have a widerscope of application than the 1969 Vienna Convention.A safeguard clause of the magnitude of draft article 3might appear to be appropriate in a convention coveringthe law of treaties in general, but it was less so in aconvention with a more limited purpose. The reproduc-tion of article 3 of the 1969 Convention could be adisservice to the earlier instrument, since it might betaken to indicate that the draft articles constituted anew version of that Convention. It might be wiser sim-ply to express directly and clearly the idea underlyingsubparagraph (c), namely, that the draft conventionwas not intended to govern treaty relations betweenStates but only relations between States and interna-tional organizations or between international organiza-tions. That could be done either through a draftingchange in article 1 or through wording added at thebeginning or the end of the draft articles.

12. Mr. RASOOL (Pakistan) said he was aware of thedanger of non-exhaustive lists which both the CapeVerde and the Japanese amendments sought to remedy.However, the Japanese amendment created the sameuncertainty that it intended to remove, since the words"certain international agreements" gave rise to thequestion, which agreements? His delegation favouredthe Cape Verde amendment, but opposed the Frenchproposal to delete the article, which, as the Spanishrepresentative had explained, had its value.


13. Mr. RIPHAGEN (Netherlands) said that theCommission's draft of article 3 had negative and posi-tive elements. The negative part sought to enumeratethose agreements which were not covered by the draftarticles: since article 2, subparagraph 1 (a), set out theagreements which the draft articles did cover, otheragreements must, by definition, fall outside its scope;consequently, that part of article 3 was technically su-perfluous. Subparagraphs (a) and (b) were useful butnot strictly necessary; the words "if any" might beadded to subparagraph (a) to avoid giving the impres-sion that agreements not covered by the draft articleswere no agreements at all. Subparagraph (b) simplymeant that such agreements were governed by cus-tomary international law. The positive element in arti-cle 3 was subparagraph (c). If it was assumed that theonly possible subjects of international law were Statesand international organizations, that subparagraph didnot make sense, but at present, and perhaps increas-ingly in the future, there might be subjects of inter-national law which were neither States nor interna-tional organizations. The World Bank, for example,had treaties with one or more States and entities otherthan States or international organizations. Such treatieswere not covered by the present draft articles, but therelations between the States and international organiza-tions which they involved were so covered. Article 3was not therefore redundant, but it required redrafting.The Japanese amendment offered a possible solution tothe problem.

14. Mr. PAWLAK (Poland) sait that it would be bet-ter to redraft the article, despite its difficulties, than todelete it, since it was a useful provision.

15. Mr. MONNIER (Switzerland) agreed that the ar-ticle was useful. Its positive element was not only sub-paragraph (c), since that was reinforced by subpara-graphs (a) and {b). Paragraph (1) of the InternationalLaw Commission's commentary to the article (seeA/CONF. 129/4) had rightly mentioned, among the in-ternational agreements not covered by the draft arti-cles, those involving entities such as the Interna-tional Committee of the Red Cross (ICRC), which wereneither States nor international organizations in thesense in which that term was used in the draft articles.ICRC concluded agreements with States to determinethe status of Red Cross delegations in countries wherethey were active—an arrangement comparable with theheadquarters agreement of an international organiza-tion—and to implement Red Cross activities in ac-cordance with the 1949 Geneva Conventions and theAdditional Protocols to those Conventions. It also con-cluded agreements with international organizationswhich were subjects of international law under the draftarticles. It therefore seemed important to retain thepositive elements in article 3, either in their presentform or in a slightly simplified form as proposed in theJapanese amendment.

16. Sir John FREEL AND (United Kingdom) said thatthe rationale and scope of article 3 of the Vienna Con-vention on the Law of Treaties were clear enough, butthe situation was different in the present draft articles.He was not persuaded that such an article was neededat all. Certainly the text, both in the Commission's draft

and in the form which the Cape Verde amendmentwould give it, was too complicated. He would prefersomething simpler and clearer along the lines of theJapanese proposal. There was also the question ofthe relationship between the 1969 Convention and thepresent draft articles. The clear intention of article 3 (c)of the former was that if one or more internationalorganizations became parties to a treaty betweenStates, that in no way affected the primacy of the re-lationship between the States parties. That situationshould be preserved. His delegation was consultingwith others with a view to tabling a fresh proposal forarticle 3.

17. Mr. ABDEL RAHMAN (Sudan) said that thepresent draft of article 3 was long and unwieldy, buteveryone must be concerned with the principles it em-bodied. Such an article might avert future controversy,and consequently he could not agree to its deletion. TheJapanese proposal would over-simplify the text. TheCape Verde amendment was more attractive, but hehoped that the efforts of the United Kingdom delega-tion might produce a constructive proposal acceptableto all.18. Mr. MBAYE (Senegal) said he had experiencedno particular difficulty in understanding the Commis-sion's draft of article 3. The article was useful and tookaccount of the evolution of the international commu-nity. However, the text might usefully be supplementedby the wording proposed by Cape Verde or somethingalong those lines.

19. Mr. HAYES (Ireland) said that article 3 of the1969 Vienna Convention was a safeguard clause de-signed to ensure that international agreements notcovered by that Convention did not lose their validityon its entry into force. It was highly desirable that thedraft articles should contain a similar clause, although itwas more difficult to draft than the corresponding arti-cle of the 1969 Convention because it required detailedformulation. In attempting to identify specific kinds ofagreements, the International Law Commission hadincurred the risk of not being exhaustive. The Japaneseproposal provided the most promising basis on which toachieve a shorter text; the words "certain internationalagreements", read in conjunction with article 2, did notsuffer from uncertainty. His delegation could, how-ever, support the Commission's draft, which it shouldbe possible to improve.

20. Mr. BARRETO (Portugal) said that he could notagree to the deletion of article 3, which was very im-portant. He could accept the Commission's draft, butits text was unwieldy and the same purpose could beachieved by more flexible wording such as that pro-posed by Japan.

21. Mr. TUERK (Austria) said he would welcomearticle 3 if it was improved. It should not define the areato which it did not apply or strive to provide an exhaus-tive list of international agreements, and it should laystress on what was in the second half of the present text.

22. He could support the Japanese proposal were itnot for the fact that the words "certain internationalagreements" lacked precision. He therefore suggestedthat the introductory wording of that proposed text


should be redrafted to read: "The fact that internationalagreements do not fall within the scope of the presentarticles shall not affect . . .".

23. Mr. HERRON (Australia) said that his delegationsaw the need for a saving clause along the lines of thedraft proposed by the International Law Commission,its purpose being to preserve the legal force and ap-plicability of all international agreements not coveredby article 2, subparagraph 1 (a) of the draft convention.However, the Commission's draft was cumbersomeand not as comprehensive as it might be. The Japanesetext covered the same ground more simply, but hadbeen criticized for being uncertain. The change sug-gested by the representative of Austria might produce amisleading text. He therefore suggested that the in-troductory wording of the draft article proposed byJapan should read: "The fact that the present articlesdo not apply to international agreements other thaninternational treaties referred to in article 2, subpara-graph 1 (a), shall not affect. . .". That would result inthe article having the same substance and effect as thetext submitted by the International Law Commission.

24. Mr. ROSENSTOCK (United States of America)said that the Commission's idea of having a safeguardprovision of the kind represented by draft article 3 wascorrect, and his delegation would support an articlewhich had that effect. With Cape Verde's proposedaddition, the article would have seven numbered sec-tions and would be so complex as to make a subsequentexplanation to parliamentarians extremely difficult.Japan's approach was simple and more suitable; if thewording it had proposed was insufficiently precise, itcould be improved by the Drafting Committee.

25. Mr. NASCIMENTO e SILVA (Brazil) said heunderstood the difficulty in understanding article 3 asdrafted by the International Law Commission. How-ever, he hesitated to support the French proposal de-spite the excellent arguments in favour of it which therepresentative of France had put forward. In his view itmight be better to eliminate the negative elements inthe Commission's draft, but a majority of delegationsseemed to consider that they should be included. If theCommittee should prefer the Commission's draft, itmight be improved by the insertion of the words "interalia" after the words "do not apply". His delegationcould also accept the Japanese amendment. At allevents, the Drafting Committee, taking into account thecomments made by the representatives of Austria andAustralia, should be able to reword the Japanese textsatisfactorily.

26. Mrs. DIAGO (Cuba) said that, although her del-egation appreciated the arguments put forward by theInternational Law Commission in the commentary tothe article, the wording of the article was unclear. Itwould best be improved in the way proposed by CapeVerde, whose amendment should be referred to theDrafting Committee.

27. Mr. AENA (Iraq) said that he was not in favour ofdeleting the whole of article 3. The Conference shouldtry to clarify the Commission's text, particularly inorder to take account of the subtle differences in legalstatus of international organizations, and make the arti-

cle speak more clearly about the link between it andother rules of international law which defined agree-ments not within the scope of the draft articles. Theproblem was essentially a drafting one, and in solving itcare should be taken to avoid excessive detail and tosimplify the two parts of the article.28. Mr. JESUS (Cape Verde) said that his delegationcould not support the proposal by France to delete thearticle altogether; that would create difficulties whichwould jeopardize the interpretation and application ofthe future convention. Nor could it support the wordingproposed by Japan, because that text, despite its manymerits, represented a major change in the approach tothe subject from the one taken by the International LawCommission. The draft articles, for the first time in aninternational instrument laying down general rules ofinternational law, recognized subjects of internationallaw other than States and international organizations.The Japanese proposal, by removing that recognition,would jeopardize a major achievement of the Commis-sion and the interests of an overwhelmingly large sectorof the international community.

29. Mr. RUIZ CASTILLO (Nicaragua) said that hisdelegation approved the International Law Commis-sion's draft of the article even though it was not readilyunderstandable. It could not accept the French pro-posal. The Japanese proposal had the defect of notenumerating the kinds of international agreements in-volved. His delegation therefore considered that theDrafting Committee should be asked to redraft article 3on the basis of the Commission's text and Cape Verde'sproposal.

30. Mr. MORELLI (Peru) said that the Commission'stext would be acceptable if it was made clearer andeasier to read. The proposal by Japan provided an inter-esting formulation for the article, which the DraftingCommittee should consider. In doing so, it should takecare not to eliminate from the article any of the existingcomponent parts, bearing in mind in particular the pres-ent subparagraph (c), to the importance of which theNetherlands representative had drawn attention.

31. Mr. RAMADAN (Egypt) said that his delegationapproved, in principle, the Commission's text. How-ever, the article did not include other internationalagreements which were subject to international law.As the International Law Commission stated in para-graph (1) of its commentary to article 3, "The develop-ment of world humanitarian law and its extension forthe benefit of entities which have not yet been con-stituted as States will provide further examples of thiskind, and there will even be agreements between one ormore international organizations, one or more Statesand one or more entities which are neither States norinternational organizations." The best way to fill thegap in the Commission's text was to expand its scope inthe way proposed by the delegation of Cape Verde, andhe suggested that that amendment be referred to theDrafting Committee.

32. Mr. HAYASHI (Japan) disagreed with the rep-resentative of Cape Verde that the wording proposedby the Japanese delegation removed recognition fromsubjects of international law other than States and inter-


national organizations. In any event, as all delegationswould undoubtedly agree, the present Conference wasnot the appropriate forum in which to discuss the ques-tion of what constituted a subject of international law.The merit of Cape Verde's proposal was that it rein-forced the Commission's approach to the matter, butthe suggested new subparagraph would still not makethe list of international agreements complete. At leasttwo more categories would need to be added: agree-ments concluded between States, and those concludedbetween States and subjects of international law otherthan States and international organizations. That wouldmake six categories, and the first half of the articlewould thus become extremely cumbersome. The Jap-anese delegation had therefore taken an alternative ap-proach to the formulation of the article, which hadresulted in the proposal in document A/CONF. 129/C.1/L.9.33. Mr. TEPAVICHAROV (Bulgaria) expressed sup-port for the International Law Commission's text but atthe same time agreed that the first half of the article wasnot exhaustive. However, rather than attempting tomake the article more comprehensive by adding newcategories of agreements, the Committee should seekto clarify it by means of small drafting changes, such asthe insertion of the words "inter alia" suggested byBrazil.34. Mr. CRUZ FABRES (Chile) said that the Com-mittee should approve article 3 as drafted by the Com-mission, in view of its legal complexity. A safeguardclause was needed to prevent conflicts of application incases where States had concluded treaties with inter-national organizations such as the International Com-mittee of the Red Cross, which was a non-governmentalorganization. The Swiss representative had rightlydrawn attention to the situation of that organization.35. Mr. JESUS (Cape Verde) said that the point hehad wished to make about the Japanese proposal wasthat it excluded the reference which the InternationalLaw Commission, by using the words "subjects ofinternational law other than States or organizations",seemed to be making in the draft articles to an importantgroup of countries in the international community. Thatreference was of great value to his delegation. He wascertainly aware that the Conference was not the placeto settle the question of what a subject of internationallaw was.36. The Japanese representative had indicated thatthe Commission's analytical formulation, to whichCape Verde proposed the addition of a subparagraphwhich would make it even more analytical, left out twoother categories of agreement that should be includedif the list was to be exhaustive. If that were so, hewould prefer those two categories to be mentionedrather than accept a general formula of the type Japanhad suggested. However, having examined the cate-gories of agreement which might fall within the purviewof article 3, he had found none which were not men-tioned in the Commission's text or his delegation'samendment. While fully agreeing with Japan's inten-tions, therefore, he could not support its proposal.37. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that his delegation associated itself with

those speakers who had been unable to support theFrench proposal, and agreed that the Commission'sdraft article was cumbersome and difficult to under-stand. However, his delegation found no substantivedifficulties in the Commission's text. He shared theview that the drafting problems it presented could besolved by the Drafting Committee, which should aim atstreamlining the text of the article.38. Mr. SCHRICKE (France) said that, although arti-cle 3 had been designed as a safeguard clause, its effectwould, paradoxically, be to jeopardize some interna-tional agreements. It was unlikely that any consensuscould be achieved on the list of agreements to which thearticles would not apply, and consequently, left as itwas, the draft article would be a dangerous one. Thatwas one of the reasons why his delegation had proposedits deletion. He did not believe that the text could berescued by adding the words "in particular" at thebeginning of the article; such an approach was unhelp-ful in that it would accord priority to some agreementsover others.39. Mr. BEN SOLTANE (Tunisia) said that article 3was both useful and necessary and should be retained.The Japanese proposal had the demerit of being vagueand would give rise to many difficulties. He there-fore supported the amendment submitted by the rep-resentative of Cape Verde, but considered that thesubparagraph it proposed should be placed after theexisting subparagraph (iii).40. Mr. FOROUTAN (Islamic Republic of Iran) saidthat, while article 3 was undoubtedly cumbersome anddifficult to understand on a first reading, he could seeadvantages in retaining it. He associated his delegationwith the views put forward by the representative ofCape Verde.41. Mr. KERROUAZ (Algeria) said that article 3 wascertainly restrictive and incomplete, yet he fully sym-pathized with the Commission's decision to include it inthe draft as a safeguard clause. He was therefore unableto accept the proposal to delete it. Nor was the Japan-ese suggestion acceptable, since its effect would be todestroy the analytical formulation of the article. Thebest approach seemed to be the one advocated by therepresentative of Cape Verde. Like the representativeof Tunisia, he believed that the proposed additionalsubparagraph should be placed after the existing sub-paragraph (iii).42. Mr. VAN TONDER (Lesotho) said that his del-egation did not agree that article 3 should be deleted. Ifthe text was cumbersome or insufficiently exhaustive itshould be improved, perhaps on the lines suggested bythe representative of Cape Verde. Whatever improve-ments were made, the reference to subjects of inter-national law should be retained.43. Mr. HAYASHI (Japan) suggested that the pro-posals made by his own delegation and that of CapeVerde should be referred to the Drafting Committee.44. Mr. OLUMOKU (Nigeria) said that the com-ments made in the course of the discussion and thearguments advanced in the International Law Commis-sion's commentary to the article had convinced him ofthe need to retain the article. The change proposed by


Cape Verde would not give his delegation any diffi-culties.45. Mr. REUTER (Expert Consultant) said that indrafting the article the Commission had been guided bythe principle of strict adherence to the 1969 ViennaConvention, but its members would be quite content tosee the existing text improved, streamlined or evendeleted, if that was the wish of the Conference.46. Several speakers had drawn attention to the lastsubparagraph of article 3. One problem which the Com-mission had not addressed was that article 3 of the 1969Vienna Convention, by safeguarding the application ofthe rules of that instrument to relations between Statesparties to a treaty to which other subjects of inter-national law were also parties, implied that there weretwo sets of rules on treaty law: general ones and therules of the Vienna Convention. Draft article 3 intro-duced a third series of rules, those of the draft con-vention itself. Some representatives believed thatproblems might arise from that situation because ofuncertainty as to the rules applying to relations be-tween States when States and other entities were in-volved in treaties covered by the Convention. In such acase, States parties to the Vienna Convention would bebound by the provisions of that Convention. The draftconvention would therefore need a provision statingclearly that for States parties to the 1969 Conventionthe provisions of that Convention would apply to therelations between them arising out of treaties fallingwithin the scope of the draft convention. The problem,though unlikely to occur frequently, would arise in one

specific circumstance, namely if in the draft under dis-cussion it was decided to introduce procedures for thesettlement of disputes which were different from thosein the Vienna Convention. Although the Commissionhad been aware of the issue, which was very complex, ithad felt it best not to tackle it because of the risk of thedraft articles being incompatible with the Vienna Con-vention. It was for the Conference to seek a solution tothe problem.47. The CHAIRMAN summarized the discussion onarticle 3 and asked the French delegation if, in the lightof that discussion, it wished to uphold its request fordeletion of the article.48. Mr. SCHRICKE (France) said that, although hisdelegation held to its view that it would be best to deletearticle 3, it did not wish to obstruct the work of theCommittee by insisting on its proposal. He hoped thathis delegation's concerns would be duly taken intoaccount by the Drafting Committee.49. Mr. JESUS (Cape Verde) said that the Japaneseamendment introduced questions which were not sim-ply matters of drafting. Regarding his own amendment,it would be useful if a decision could be postponed untilhe had consulted with other delegations on the issue.50. The CHAIRMAN said that, if he heard no objec-tion, he would assume that the Committee wished topostpone a decision on article 3.

// was so decided.


5th meetingMonday, 24 February 1986, at 10.20 a.m.


In the absence of the Chairman, Mr. Nascimento eSilva (Brazil), Vice-Chair man, took the Chair.



Article 3 (International agreements not within thescope of the present articles) (continued)

1. Mr. WANG Houli (China) commended the Japa-nese delegation's concern to simplify article 3, butnoted that its amendment (A/CONF. 129/C.1/L.9) hadnot met with general approval and that, as a matter ofprinciple, precision should have precedence over brev-ity. He believed that the Japanese proposal, as well asothers made during the discussion, were in fact insuf-ficiently precise. He could not accept deletions which

had also been proposed, and considered that the bestcourse would be to invite the Drafting Committee tolook into the possibility of simplifying the article.2. Mr. ECONOMIDES (Greece) observed that, not-withstanding the Cape Verde amendment (A/CONF.129/C.1/L.5 and Corr.l), subparagraphs (i) to (iii) of article 3,which were already complex, did not take account of alleventualities. He referred in that connection to agree-ments between States, which were to be the subject of aspecial provision at the end of the projected conventionestablishing the relationship to the 1969 Vienna Con-vention on the Law of Treaties' and agreements be-tween States and subjects of international law otherthan States or international organizations.3. He wondered whether the Japanese proposal couldnot be amended to cover agreements not covered by thepresent text, such as agreements concluded by subjectsof international law other than States or international

' Official Records of the United Nations Conference on the Lawof Treaties (United Nations publication, Sales No. E.70.V.5),p. 287.


organizations, as well as verbal agreements betweenStates and international organizations or between inter-national organizations. It might for example be speci-fied that the phrase "certain international agreements"in that proposal included agreements concluded by sub-jects of international law or other international entities,either among themselves or with States or internationalorganizations.4. The CHAIRMAN, having ascertained from therepresentatives of Cape Verde that his consultationswith the Group of 77 about the article were expected tobe completed before the afternoon meeting, pointed outthat several proposals were still before the Committeeof the Whole. In the quest for general agreement, itmight prove procedurally necessary to refer the matterto the President of the Conference for his deliberation.

Article 5 (Treaties constituting international organiza-tions and treaties adopted within an internationalorganization)

5. Mr. REUTER (Expert Consultant) recalled that inits first reading the International Law Commission hadconsidered that there was no need for a provision par-alleling article 5 of the Vienna Convention on the Lawof Treaties, but on reviewing the question had decidedthat such a provision might be useful.6. Symmetry between article 5 of the Vienna Conven-tion and article 5 of the projected convention wouldrequire that the constituent instrument referred to in thelatter should be that of an international organization towhich another international organization was also aparty. The Commission had initially considered thatsuch instances were so rare as to be safely left out ofaccount, but on second reading had favoured a broaderview taking account of the virtually countless economicorganizations set up by the developing countries andrelated by agreement with each other, with banks andwith aid-providing agencies.7. As regarded treaties adopted within an interna-tional organization, further reflection had convincedthe Commission that besides the case of internationalorganizations with one or more international organi-zations as members there was the case of interna-tional organizations composed entirely of States, whichadopted texts that were open to adhesion by inter-national organizations. The decision to take that pos-sibility into account had been made for substantiverather than "architectural" reasons of symmetry withthe 1969 Vienna Convention.

8. It might be useful to recall that the Commission hadbeen of the view that even if an international organi-zation included as fully participating members oneor two development planning organizations composed,for example, of States and international banks, thatorganization would still be fundamentally intergovern-mental in nature, firstly, as a subject under interna-tional law, and secondly, because an international or-ganization was in the last analysis merely a "technicaldevice" designed to enable governments to act to-gether.

9. Mr. JESUS (Cape Verde), introducing his amend-ment (A/CONF. 129/C. 1/L. 10) proposing the deletion of

article 5, said the article expanded article 1, whichdefined the scope of the projected convention in amanner analogous to the corresponding article of theVienna Convention. He believed that the article couldhave been left out of that Convention without givingrise to difficulties of interpretation or application andconsidered that it should be deleted from the presentdraft for reasons both of logic and expediency. Therecould be no doubt that the treaties referred to in article 1comprised all treaties, irrespective of their category,content or manner and place of adoption, betweenStates and international organizations or between inter-national organizations.

10. In the light of the definition of "international or-ganization" in article 2, subparagraph 1 (0, and thecomments of the Expert Consultant, it was clear thatthe constituent instruments of such organizations felltotally within the purview of article 5 of the ViennaConvention. They were to be considered as treatiesbetween States. On the other hand, if the Conferenceconsidered, as his delegation did, that the legal regimeto be established in the projected convention shouldapply to organizations of mixed membership (which isacknowledged as a current trend in the commentary ofthe International Law Commission) as well as to purelyintergovernmental organizations, the maintenance ofarticle 5 must be made subject to two conditions. Thedefinition of "international organization" in article 2would have to be amended to include an internationalorganization essentially but not exclusively composedof States, and the first part of article 5 would have to bereworded to show that the convention applied also totreaties that were constituent instruments of interna-tional organizations of which States and internationalorganizations were members. He would not opposechanges on those lines, but the deletion of article 5seemed a far more straightforward solution.

11. Mr. RASSOLKO (Byelorussian Soviet SocialistRepublic) favoured the deletion of article 5, which didnot reflect current practice in international organiza-tions and had no place in the present draft. The In-ternational Law Commission's arguments were uncon-vincing. There was no reason to transfer provisionsquasi-automatically from the Vienna Convention to thenew draft. Nor were there grounds for believing that theinstances alluded to as a reason for including the articlecould be other than very exceptional. In his delega-tion's view, they certainly did not justify the Commis-sion's proposal for an article 5 which could only furthercomplicate matters that were already complex.

12. Mr. RAMADAN (Egypt) said that the justifica-tion for the inclusion of article 5 in the 1969 Conven-tion was presumably that that Convention was the firstof its kind, and under article 1 applied only to treatiesbetween States. Under article 3, treaties to which in-ternational organizations were party were indeedexcluded. In the circumstances, it was natural that the1968-1969 United Nations Conference on the Law ofTreaties should have agreed to specify that the con-stituent instrument of an international organization andall treaties adopted within international organizationsshould not be subject to the Convention. In the case ofthe present draft, those considerations did not apply. It


would be helpful if the Expert Consultant could providefurther clarification regarding the reasons for the in-clusion of such an article.13. Article 5 covered two types of treaty: the con-stituent instrument of an international organization andany treaty adopted within an international organiza-tion. There were in turn three types of constituentinstrument, the first being a constituent instrument theparties to which were States and which, as a conventionadopted by States, would be governed by the 1969Convention, not the draft convention. The second typewas a constituent instrument of an international organ-ization that would bind member States and an inter-national organization which under article 1 (a)would besubject to the draft convention. The third type of in-strument was a constituent instrument adopted andendorsed by international organizations alone, whichunder article 1 (b) would be subject to the draft conven-tion, without any need to have recourse to article 5. Hisdelegation saw no reason for repeating what was pro-vided for under article 1, particularly since the justifica-tion for the inclusion of the article in the 1969 Conven-tion no longer applied.

14. Mr. ALBANESE (Council of Europe) said thathis delegation considered the second part of draft arti-cle 5 absolutely essential. Many treaties among mem-ber States were concluded within the Council of Eu-rope, and the application of special rules in that respecthad been ensured under article 5 of the 1969 ViennaConvention. Certain of those treaties explicitly pro-vided for the European Economic Community (EEC)to become a party. With others, concluded initiallyamong States only, that result ws achieved by means ofan additional protocol to the treaty. There had beenabout 10 treaties providing for accession by the EECalready, and their number was expected to increase.

15. If article 5 were deleted, a somewhat paradoxicalsituation would arise. If a convention was not open foraccession by the EEC, the internal rules of the Coun-cil of Europe would apply under article 5 of the 1969Vienna Convention on the Law of Treaties. If, how-ever, the new convention was open for accession by theEEC, those rules would no longer apply. The omissionof article 5 could thus give rise to an a contrario ar-gument based on the existence of article 5 of the 1969Convention and the absence of a similar provision in thepresent convention.

16. In his delegation's view, article 5, as drafted, wasindispensable if difficulties and misunderstandingswere to be avoided.

17. Mr. WOKALEK (Federal Republic of Germany)favoured the retention of the article and considered thatparallelism with the 1969 Convention was sometimesrelevant, if only to avoid arguments of the a contrariotype. The Commission's draft, to which much thoughthad been given, should be followed so far as possible.It was important also that the proposed conventionshould be flexible enough to take account of futuredevelopments.

18. Mrs. THAKORE (India) believed that the articleshould be retained, and was not persuaded by the ar-gument that it should be deleted or limited to treaties

adopted within an international organization. The fu-ture convention should be as complete as possibleand should even cover special, albeit rare, cases. TheExpert Consultant's explanation and the arguments ofthe representative of the Council of Europe had furtherconvinced her delegation of the need for a provisionalong the lines of the draft article.

19. Mr. KOECK (Holy See) observed that since inter-national practice and doctrine made it abundantly clearthat international organizations could be members ofinternational organizations, his delegation believed thatarticle 5 should be retained. He had the impression fromthe discussion that some of the support for the CapeVerde amendment was intended to limit the term andeven the notion of "international organizations" tomere communities of States. That was completely un-acceptable to his delegation, which would be unable tosupport the Cape Verde proposal.

20. Mr. VASSILENKO (Ukrainian Soviet SocialistRepublic) said that, despite the Expert Consultant'sexplanation, many aspects of the article were still un-clear. Article 5 reproduced the text of article 5 of the1969 Vienna Convention, whose inclusion had beenfully justified by the need to cover two types of in-strument: the constituent instruments of internationalorganizations and treaties between States resultingfrom an agreement within an international organiza-tion. Such treaties could be regarded as suigeneris. Theproposed convention, however, differed from the 1969Convention in that it was designed to govern treatiesconcluded exclusively between international organiza-tions. Thus there might be situations in which the con-stituent instrument of an international organization wascreated exclusively by international organizations.

21. Although the Commission had not foreseen thepossibility of an international organization all of whosemembers were international organizations, the estab-lishment of such an international organization wastheoretically possible. Such a possibility arose from theprovisions of article 5, which opened the way to theestablishment by international organizations of supra-international structures not under the control of States.Modern general international law lacked norms to pro-vide for such a possibility. It was no accident that theconstituent instruments of modern international organ-izations did not provide for the powers to establish anysuch organizations, States retaining for themselves theexclusive prerogative of establishing international or-ganizations.

22. Having examined other draft articles in the light ofarticle 5, his delegation had concluded that laying downin article 5 a concept of international organization dif-ferent from that set out in article 2 would necessitate amajor change in the definition of international organiza-tion and consequently was fraught with serious com-plications. For all those reasons, it would be preferableto omit article 5.

23. Mr. HARDY (European Economic Community)said that the reasons which had persuaded the Commis-sion to include article 5 had lost none of their force since1982 and would not do so in the future. The EEC wasparty to the constituent instrument of various inter-


national organizations, particularly in the matter ofcommodities and fishing arrangements, and also to in-ternational treaties adopted within other internationalorganizations, including, but not limited to, the case ofthe Council of Europe. Since the practice did in factexist, there seemed to be no reason to exclude theprovision, and his delegation favoured its retention. If itwere omitted, greater confusion would arise as to thestatus of international organizations and their partici-pation in the treaties in question. If the article wasretained, the definition of international organizationwould possibly require re-examination, although theEEC had no specific change to propose.24. With regard to the term "relevant rules" the EECinterpreted it to mean that each organization coulddetermine what those rules were in the given case.Since the term "relevant rules" also appeared in anumber of other articles, including articles 6, 35, 36,37,39 and 65, his remark applied in each of those cases.25. Mr. LUKASIK (Poland) said that his delegationsaw merit in the Cape Verde proposal, since the articleraised a number of questions, one of which concernedthe term "relevant rules".26. In his delegation's view, the main reason for in-cluding the article had been that it existed in the 1969Vienna Convention. Although it was intended to applyto two specific cases, other cases should perhaps alsobe taken into account. As had been mentioned earlier,two or more international organizations might create asupra-international organization that would not be con-trolled by States parties to the international organ-izations. It was perhaps necessary to consider thatpossibility. It might, however, be better to omit thequestion from the draft convention until it could beconsidered in terms of codification rather than of thecreation of rules that did not correspond to the reality ofinternational practice.27. He agreed with most of what the representativesof Cape Verde, the Byelorussian SSR and the Ukrain-ian SSR had said, particularly in regard to the need toamend the definition of "international organization" ifthe article were retained. He considered that the con-stituent instrument of an international organization wassui generis and governed by a somewhat different legalregime from the law of treaties.28. For all those reasons, he favoured the deletion ofthe article.29. Mr. KANDIE (Kenya) considered that the pro-posed convention should solve, not create problemsand accordingly supported the proposal to delete thearticle. His delegation was particularly concerned thatthe article seemed to conflict with the succinct and luciddefinition of the term "international organization" inarticle 2, 1 (i). If article 5 was retained, changes wouldhave to be introduced into the definition, and that mightbe neither desirable nor helpful.

30. Although it appeared from the International LawCommission's commentary that the article was inten-ded to cover unusual situations, his delegation wasconcerned at the possible ramifications. It was neces-sary to strike a balance between the need for a conven-tion that reflected the state of development of the law of

treaties and the need to provide for rare situations. Anyinnovation should be tempered by recognition that itshould be reasonable and not out of place in the generalregime of the convention.31. Mr. MB AYE (Senegal) said that the first part ofthe article was unnecessary and should be deleted orreworded. He agreed with the Commission's view thatthere was no reason not to provide for the case of atreaty that was a constituent instrument of an inter-national organization to which another internationalorganization was also party. The possibility was how-ever covered by article 1 (a).32. The second part of article 5 might be relevant inthat, in maintaining a treaty adopted within an inter-national organization in the field of application of thedraft convention under discussion, it did not excludethe possibility of that organization applying other pro-visions to that treaty. However, that second part couldbe reformulated.33. Mr. SCHRICKE (France) thought there was amisunderstanding about the real purpose of the article,perhaps because of the ambiguity of its text, whichreproduced that of article 5 of the 1969 Vienna Con-vention.34. It had been argued that the article simply elu-cidated the scope of the proposed convention as statedin article 1 and the definitions in article 2. However, inhis delegation's opinion, which was based on the tra-vaux preparatoires of the 1969 Convention, the nub ofarticle 5 was the last phrase, which provided that theproposed convention would apply "without prejudiceto any relevant rules of the [international] organiza-tion", thus subordinating the convention to the par-ticular rules of the organization.35. To understand the purpose of this provision, thefirst question to consider was whether there were, orcould be, international organizations whose member-ship included other international organizations. Suchindeed was the case. It was then necessary to ask whatthe effect of deleting article 5 would be in cases wherethe rules of an international organization were incon-sistent with the provisions of the draft convention. Ifthe convention were non-mandatory, there would benothing to prevent parties to a treaty applying differentrules, in which case the article was superfluous. If onthe other hand the convention were prescriptive, thearticle would have to be retained to preserve the abilityto apply any relevant rules of an international organi-zation.36. He wished to ask the Expert Consultant whetherthe draft articles were intended to be prescriptive or toallow exceptions, particularly where the relevant rulesof an international organization were inconsistent withcertain provisions of the proposed convention.37. Mr. JESUS (Cape Verde), commenting on theremarks of the representative of the Holy See, saidthat he did not contend that the membership of inter-national organizations covered by the proposed con-vention must be exclusively intergovernmental. Thedefinition in article 2 and the first part of article 5 couldbe amended to cover international organizations whosemembership was essentially intergovernmental but also


included international organizations as well as purelyintergovernmental organizations. The deletion of thearticle would broaden the scope of the convention, notrestrict it. The scope of the convention was laid down inarticle 1, and since article 5 qualified article 1, it con-stituted a restriction on the scope of the convention,not, as some delegations appeared to feel, the reverse.

38. Mr. SIEV (Ireland) was convinced that the articleshould be retained. Any problems and disadvantagesarising from its retention would not be greater thanthose caused by its deletion. In his delegation's view,the article would be useful now and even more useful inthe future.

39. Mr. GUNEY (Turkey) agreed with the ExpertConsultant that an international organization was atechnical device to enable States to act together. Healso agreed with the Council of Europe representative'sarguments, and accordingly opposed the deletion of thearticle.

40. Sir John FREELAND (United Kingdom) said thatthere was no clear case for automatic parallelism withthe 1969 Vienna Convention. The International LawCommission had considered the issue carefully in thelight of the realities of contemporary international life.Examples had been given of international organizationswhere other international organizations were party tothe constituent instruments, particularly in matters ofeconomic development. There were also many treatiesadopted within international organizations to which in-ternational organizations were parties. His delegationthought that it was sensible for the present draft articlesto contain provisions along the lines of those in article 5.Without such provisions, difficulties might arise inpractice from the fact that the articles would differ fromthe 1969 Vienna Convention.

41. He did not accept the view that the article shouldbe deleted to avoid difficulties over the definition inarticle 2. The definitions in article 2 were ancillaryto the substantive provisions. There was no need tochange the definition of international organizations inarticle 2.

42. Mr. ECONOMIDES (Greece) said that article 5clearly applied only to the constituent instruments of aninternational organization or a treaty adopted within aninternational organization. The interest of the articlelay in the last phrase, "without prejudice to any rel-evant rules of the organization", since that constitutedan exception and a safeguard for international organ-izations.

43. His delegation opposed deletion of the article forthree reasons. First, it would be illogical to have ageneral provision in the 1969 Vienna Convention butnot in the present one. Secondly, it would be an unac-ceptable discrimination to permit international organ-izations to prevent the application of the 1969 Conven-tion by invoking article 5 of that Convention but not toprevent the application of the present draft convention.Thirdly, deletion of the article would create a distinc-tion between the 1969 Convention and the draft conven-tion before the Conference making the first residual andthe second prescriptive.

44. Mr. BARRETO (Portugal) believed the articleshould be retained in the interests of consistency withthe 1969 Vienna Convention and because it allowed forthe development of international law. The DraftingCommittee might be requested to improve the textalong the lines suggested by the Senegalese represen-tative. He personally had doubts about the use of theword "relevant".

45. Mr. NEUMANN (United Nations IndustrialDevelopment Organization) remarked that UNIDO hadbeen unable to submit comments on the draft articles,as it had only recently become a specialized agency.

46. The reference in article 5 to the rules of the organ-ization was related to the definition in article 2, 1 (/)•UNIDO's Constitution provided in its article 26, 2 thatthe rules of UNIDO as a United Nations organ wouldcontinue to apply to UNIDO as a specialized agency.Among these rules were those referred to in article 2,1 (/). and therefore UNIDO wished to confirm generallythe United Nations comments on the draft articles. Hewas in favour of retaining the article for the reasons setout in the commentary.

47. Mr. PISK (Czechoslovakia) said that his delega-tion was impressed by the arguments in favour of de-leting the article. He had serious misgivings aboutthe phrase "without prejudice to any relevant rules ofthe organization", which would permit exclusion of theprovisions of the draft articles. Either the article shouldbe deleted, or its first part amended.

48. Ms. LUHULIMA (Indonesia) said her delegationwas in favour of retaining the article, which reflectedgeneral practice where international organizationswere members of other international organizations ortreaties were adopted within international organiza-tions. If the article was retained, the definition of inter-national organizations in article 2 should be amended.

49. Mr. FOROUTAN (Islamic Republic of Iran) saidthat having heard the arguments for and against theinclusion of the article, he favoured its deletion. Arti-cle 1 sufficiently defined the proposed convention'sscope, and article 5 might cause confusion.

50. Mr. MONNIER (Switzerland) said that the articleshould be considered in the light of its usefulness. Fearsthat the deletion of article 5 might give rise to argumentsa contrario would be justified if its omission left a voidand legal uncertainty, but that would not in fact be thecase, since the situations covered by the article werealready provided for in article 1. His delegation be-lieved that two apparently conflicting principles wererelevant to the drafting of the convention. One was theneed to apply common sense, and not to attempt to dealwith every hypothetical and rare occurrence. The otherwas the need to retain provisions that left the way opento future development of the law. He supported theretention of the article, despite the fact that its practicalapplication might for the time being be limited.

51. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that the EEC representative's commentshad not convinced him that there were any importantexamples of international organizations which wereparties to the constituent instruments of other inter-


national organizations. Rules of general internationallaw could not be based on only a very few precedents.52. It should be noted that article 5 conflicted with thewording of article 1 and the relevant definition in arti-cle 2. That was an additional reason for deleting thearticle, whose practical significance was minimal.53. Mr. ROSENSTOCK (United States of America)noted that the Expert Consultant's explanation hadshown that the International Law Commission hadtaken into account a number of treaties within the ambitof article 5 when it had adopted the article, on sec-ond reading. Since that time, further treaties had beenadopted within international organizations to whichother international organizations had become parties.One was the Convention for the Protection and Devel-opment of the Wider Caribbean Region, which wasopen to accession by certain regional organizations.54. The draft article embodied a rule which would lastwell into the future, and its deletion would leave a gap inthe proposed convention.55. He agreed that consideration should be given toamendment of the definition of "international organiza-tion" in article 2.56. Mr. PASZKOWSKI (United Nations Educa-tional, Scientific and Cultural Organization) said thatUNESCO believed that the article should be retained,perhaps with some drafting changes. The central issuewas whether an international organization could be amember of another international organization. The an-swer to that question was in the affirmative. UNESCO,for example, was a member of another internationalorganization, the Intergovernmental Bureau for Infor-matics, which was itself an intergovernmental organ-ization.

57. In UNESCO and other organizations, specialrules applied to treaties constituting international or-ganizations and to treaties adopted within internationalorganizations. The purpose of the article was to make itclear that the relevant rules of the international organ-ization would continue to apply and that the proposedconvention would be without prejudice to them.58. If the article was deleted, it would be difficult, ifnot impossible, for international organizations to ac-cede to the proposed convention.

59. Mr. TEPAVICHAROV (Bulgaria) stressed thatarticle 5 of the 1969 Vienna Convention was a usefulprovision. The scope of the concluding proviso, "with-out prejudice to any relevant rules of the organization",was clear and created no difficulties of interpretation inthe context of that Convention.

60. The position was altogether different with regardto draft article 5. The article dealt with hypotheticalcases and did not constitute codification of interna-tional law, but rather progressive development basedon a projection of future trends. In the context of thedraft articles, the concluding proviso would lead toconfusion and misunderstanding, bearing in mind inparticular that the concept of "relevant rules of theorganization" had not yet been defined. In the circum-stances, his delegation supported the Cape Verde pro-posal to delete the article, and was not convinced by the

argument in the International Law Commission's com-mentary. The deletion of article 5 would not exclude thepossibility of a constituent instrument of an interna-tional organization being open for signature by otherinternational organizations.61. Mr. ULLRICH (German Democratic Republic)sympathized with the proposal to delete the article.Article 5 had been appropriately included in the 1969Convention, but the text had no place in the presentdraft articles. Although the text was taken word forword from the 1969 Convention, the content of thepresent article was new and unacceptable to his del-egation.62. Article 1 of the draft articles satisfactorily definedthe scope of the proposed convention. He thereforefavoured deleting draft article 5.63. Mr. KOECK (Holy See) said that he wished toclarify a passage in his earlier statement which hadobviously been misconstrued.64. He had not said that the Cape Verde amendmentwas intended to limit the scope of the draft articles. Hehad said that some of the support the Cape Verdeamendment had so far received from other delegationswas actually intended to restrict unduly the notion ofinternational organizations. He had not implied thatthat was the intention of the Cape Verde amendment,but that it was lending itself to undesirable interpre-tation.65. Mr. LEHMANN (Denmark) remarked that codi-fication conferences were infrequent, and that advan-tage should be taken of the present conference to coveras much as possible of the subject matter.66. It was apparent from statements during the dis-cussion that many international organizations had con-cluded treaties falling under the terms of article 5, andthat a practice existed, in particular with regard to thetreaties dealt with in the second part of the article. Itwas also apparent that practice in the matter woulddevelop further in the future.

67. It had been suggested that retention of the articlemight require rewording of the definition of "inter-national organization" in article 2. In that connection,he stressed that it was the substantive provisions whichgoverned the definitions and not the definitions whichgoverned the substantive provisions. The problem ofthe definition of "international organization" should bedealt with after a decision on article 5.

68. Mr. SANG HOON CHO (Republic of Korea) be-lieved the article should be retained. Its deletionwould create legal confusion, particularly in regardto the situation of international organizations whichwere members of other international organizations. Heagreed that the definition of "international organiza-tion" might have to be amended.

69. Mr. ABDEL RAHMAN (Sudan) said that advo-cates of the deletion of the article appeared to have lostsight of the purpose of the draft under discussion. Thearticle was concerned with a very rare situation, but itshould be remembered that the draft was intended toregulate the regime of treaties to which one or moreinternational organizations were parties.


70. The article was based on existing practice. More-over, the proposed convention should make provisionfor future developments. The article should be retainedwith an eye to the future, although some redraftingmight be desirable.

71. Mr. REUTER (Expert Consultant), answeringquestions raised during the discussion, said that theStates Parties to the 1969 Vienna Convention had in-cluded article 5 in the Convention for various reasons.One had been the fact that all the international organiza-tions without exception, and in particular those of theUnited Nations family, had expressed a very strongfeeling that the Convention must take into account the"relevant rules of the organization" and not departfrom them.

72. There was another reason for the inclusion ofarticle 5 in the 1969 Vienna Convention. An interna-tional organization was constituted by a treaty con-cluded by States. The constituent instruments of inter-national organzations were special treaties that couldnot be affected by a general treaty. In that connection,he wished to draw attention to article 34 (General ruleregarding third States) of the 1969 Convention, whichspecified that a treaty did not create either obligationsor rights for a third State without its consent. It wasof the essence of an international treaty that its effectwas relative and that it could bind only the parties. Inadopting article 5 of that Convention, the States Parties

had had in mind that fundamental rule of treaty law, andhad not wished to affect treaties already concluded.73. A second question was that of the manner inwhich the provisions of the future convention wouldbecome applicable to international organizations. Wasthere in fact any means—possibly indirect means—whereby such provisions could be made to enter intothe practice of international organizations? The ques-tion had been raised whether those provisions might notbecome applicable by some direct means, and, in thatconnection, the French representative had enquiredwhether the Conference was not attempting to draw upimperative rules. His answer was that the proposedconvention would, if adopted, be a treaty like anyother. As such, it would only be binding on an inter-national organization if the organization became a partyto it. The International Law Commission had not envis-aged any derogation to the rule in article 34 of the 1969Vienna Convention whereby a treaty did not createeither obligations or rights for third parties.

74. Mr. JESUS (Cape Verde) suggested that the de-cision on article 5 should be deferred to enable him tofind common ground with certain other delegations.After those consultations, he hoped it would be possi-ble to put forward a generally acceptable suggestion forthe amendment of the article and adjustment of thedefinition of "international organization" in article 2.


6th meetingMonday, 24 February 1986, at 3.25 p.m.




[Item 11] (continued)

Article 5 (Treaties constituting international organiza-tions and treaties adopted within an internationalorganization) (continued)

1. The CHAIRMAN said that a new proposal hadbeen submitted by Cape Verde for article 5 A/CONF. 129/C.1/L.21). He suggested that the Committee shouldpostpone a decision on the article until it had con-sidered the proposal.

// was so decided.

Article 6 (Capacity of international organizations toconclude treaties)

2. Mr. TUERK (Asutria), introducing his amendment(A/CONF. 129/C. 1/L.3), said that his delegation's prob-lem with the wording proposed by the InternationalLaw Commission was that it referred only to the capac-ity of international organizations to conclude treaties. Itwas important not to overlook cases in which Statesmight become parties to the new convention but not tothe 1969 Vienna Convention on the Law of Treaties,article 6 of which stated that "Every State possessescapacity to conclude treaties''.' There was good reasonto incorporate an identical provision in the draft con-vention in order to ensure the closest possible correla-tion between the two texts, particularly in view of thefact that other paragraphs of the draft referred sepa-rately to States and to international organizations.

' See Official Records of the United Nations Conference on theLaw of Treaties (United Nations publication, Sales No. E.70.V.5),p. 287.

62 Summary records—Committee or the Whole

3. Mr. BERNAL (Mexico), introducing his amend-ment (A/CONF.129/C.1/L.7), said that it was a corol-lary to his delegation's proposal for article 2, subpara-graph 1 0) (A/CONF.129/C.I/L.6). The final wordingof article 6 would largely depend on the form taken bythe definition of the term "rules of the organization" inthat article. The amendment to article 6 was based ontwo premises: first, that the question of the legal per-sonality of international organizations was not an issuefor consideration at the Conference; and secondly, thatwhile the treaty-making capacity of an internationalorganization was a general rule of international law, itsexercise was subject to the restrictions expressed inits constituent instrument. It would be seen that theamendment left aside theoretical issues such as thelegal personality of international organizations, whichthe Commission had discussed at length. The principalobjective of the amemdment was to eliminate certainambiguities in the language.

4. His delegation was open to suggestions andchanges that would clarify the difficult problem of thecapacity of international organizations.

5. Mr. VASSILENKO (Ukrainian Soviet SocialistRepublic) said that article 6 was a key element in thedraft convention. In view of the primary importance ofthe question of the capacity of international organiza-tions to conclude treaties, and owing to the specificityof the character of that capacity, article 6 should havebeen formulated more precisely. However, his delega-tion could accept the Commission's wording for it onthe understanding that an international organizationhad the capacity to conclude treaties to the extent nec-essary for implementing the purposes and functionsprovided for in its constituent instrument.

6. That interpretation of the capacity of an interna-tional organization followed from article 6, which re-ferred to the rules of the organization, among which theconstituent instrument was paramount. That instru-ment defined the purposes and functions of the organ-ization and outlined the framework of its competence,on the basis of which the extent and specificity of thecapacity of the organization to conclude treaties couldbe defined.7. An analysis of the constituent instruments of or-ganizations such as the United Nations, the Interna-tional Monetary Fund, the United Nations IndustrialDevelopment Organization, the Council for MutualEconomic Assistance and many others showed con-vincingly that their capacity to conclude treaties wasdetermined by the functions and purposes set out inthose instruments. The draft convention was called onto regulate the procedures governing the concluding oftreaties the parties to which were both States—prin-cipal subjects of international law with a universalcapacity to conclude treaties—and international organ-izations, with their special capacity in that regard. Itwould therefore be appropriate for article 6 to define thetreaty capacity of both States and international organ-izations. That seemed to be the intention of the Aus-trian amendment, which his delegation could support.The Mexican amendment aimed at providing a clearerdefinition of the capacity of an international organiza-tion to conclude treaties, taking into account the dif-

ferences between the capacity enjoyed by internationalorganizations and that of States, but it presented certaindifficulties for his delegation and could be improved.8. Although his delegation had no major objections tothe existing wording of article 6, in the light of theinterpretation of subparagraph 1 (/) of article 2 renderedin the amendment proposed by the Byelorussian SovietSocialist Republic, the German Democratic Republic,Poland, the Ukrainian Soviet Socialist Republic and theUnion of Soviet Socialist Republics (A/CONF.129/C. 1/L.2), it still favoured a more concrete delineation ofthe capacity of international organizations to concludetreaties, taking into consideration the specific characterof such capacity.9. Mr. ECONOMIDES (Greece) said that article 6seemed incomplete: it referred to the relevant rules ofthe organization but did not deal with the case in whichthey were silent on the question of capacity to concludetreaties, as often happened in practice. Was it to beconcluded that the international organization was de-nied that capacity? Or, if it had already concludedtreaties, were those treaties invalid because the organ-ization did not have the right under the relevant rules toconclude them?

10. In his delegation's view, when the relevant ruleswere silent on the capacity to conclude treaties, ref-erence must be made to general international law; ac-cordingly, any organization, once it had been endowedwith international personality, had an automatic right toconclude traties provided those treaties conformed tothe aims and functions of that organization. It wastherefore regrettable that article 6 did not contain areference to the general rules of international law.

11. His delegation could not accept the wording pro-posed by Mexico, which was even more restrictive thanthe existing text of article 6. It could agree to the Aus-trian amendment, but felt that its inclusion in the articlewas not really necessary.

12. Mr. ROMAN (Romania) said that article 6 wasacceptable to his delegation but its wording was notideal. Romania could not subscribe to the view thatinternational law laid down the principle of an organiza-tion's capacity to conclude treaties as an ordinary lawrule which could only be modified by express restric-tive provisions of constituent instruments. On the con-trary, an international organization's capacity to con-clude treaties depended solely on the organization'srules. He agreed with the International Law Commis-sion that every organization had its distinctive legalimage, which was recognizable in an individual form ofcapacity. Accordingly, each organization's contractualcapacity was the one conferred upon it by its memberStates, not by general international law.

13. The aim of the Commission's wording was toleave aside the question of the status of internationalorganizations in international law. That approach,however, had not yielded the clarity which the pro-vision needed. The reference to "rules" of the organ-ization did not offer a solution to the problem without asatisfactory definition of that term in article 2. Therewere thus two options open to the Conference: the firstwas to define the term "rules of the organization" in the


manner proposed in document A/CONF.129/C.1/L.2;the second was to introduce elements of the definitioninto article 6 so as to explain what form of capacity wasintended.14. His delegation welcomed the Austrian amend-ment on the ground that it was appropriate to reiteratethe rule, stated in the 1969 Vienna Convention, thatevery State possessed the capacity to conclude treaties.That was particularly so in view of the need to draw adistinction between the legal capacity of a State andthat of an international organization.15. Mr. PISK (Czechoslovakia) said that article 6 wasone of the key articles in the present work of codifica-tion. His delegation found the Commission's wordingacceptable. In deciding on it, the Commission had rec-ognized that every organization had its own legalimage, which was reflected in its individualized capac-ity to conclude treaties. The constituent instruments ofperhaps the majority of international organizations didnot have a provision covering capacity to concludetreaties, but the treaty practice of the organization,based on the tacit agreement of its member States,could be regarded as complementary to the constitu-ent instrument. The treaties thus concluded, however,must not conflict with the constituent instruments ofthe organization or with the fundamental principlesof international law, including those enshrined in theCharter of the United Nations.

16. While his delegation could support the Austrianamendment, it believed that the restatement of the ruleexpressed in article 6 of the 1969 Convention was un-necessary and that the draft article should concentrateon the case of international organizations. The Mexicanproposal correctly emphasized constituent instrumentsbut ignored the capacity of international organizationsto conclude treaties with subjects of international lawother than States and international organizations. Al-though his delegation could accept the article either as itstood or with the Austrian amendment, it believed thatthe wording would ultimately depend on the definitionof the term "rules of the organization" in article 2.

17. Mr. ULLRICH (German Democratic Republic)said that his delegation would have no objection to thepresent wording of article 6 or the wording proposed byMexico if article 2 was amended to contain an accept-able definition of the term "rules of the organization".His and four other delegations had made a proposal tothat effect (A/CONF. 129/C.1/L.2), and the discussionon article 6 showed that the idea underlying the pro-posal enjoyed considerable support.18. The wording of subparagraph 1 (/') of article 2proposed by the International Law Commission wasborrowed verbatim from article 1, paragraph (34), ofthe 1975 Vienna Convention on the Representation ofStates in Their Relations with International Organiza-tions of a Universal Character.2

19. The capacity of an international organization toconclude treaties was related to its status under inter-

2 See Official Records of the United Nations Conference on theRepresentation of States in Their Relations with International Organ-izations, vol. II (United Nations publication, Sales No. E.75.V.12),p. 207.

national law and was therefore to be derived from itsconstituent instruments. It was therefore insufficientto define "rules of the organization" by the formulaused in the 1975 Convention, which related merely torelations between States and universal organizations.When the question of the status of international organ-izations had been discussed at the Conference whichhad adopted the 1975 Convention, it had been pointedout that the draft submitted by the International LawCommission contained no provision in that regard. TheConference had accepted the Commission's view thatthe definition of an international organization mightgive rise to theoretical questions concerning its person-ality and capacity. It had therefore confined itself to theformula used in article 1, paragraph (34) of the 1975Convention, which was the one which appeared in arti-cle 2, paragraph 1 (/') of the present draft.

20. The proposal in document A/CONF. 129/C. 1/L.2took up the three elements contained in article 2 butemphasized the dominant position of the constituentinstruments. The other two elements, legally bindingacts and practice, could only be recognized as rules ofthe organization if they were based on the constituentinstruments. Since the term "rules of the organization"occurred throughout the draft and was therefore a cor-ner-stone of the proposed convention, its definitionmust be formulated with great caution.

21. Mr. WANG Houli (China) approved the additionto article 6 proposed by Austria. His delegation couldalso support the Mexican proposal, since it emphasizedthe role of the constituent instruments of internationalorganizations. The basic question, however, was thedefinition of the term "rules of the organization" of-ferred by article 2. He could therefore accept eitherof the solutions proposed by the Romanian delegation.

22. Mrs. DIAGO (Cuba) said that article 6 was ofspecial importance. Her delegation found the Austrianproposal acceptable as a useful supplement to the Inter-national Law Commission's text. The most importantpoint, however, was that the content of article 6 shouldbe in keeping with the definition of the term "rules ofthe organization" in article 2. The decision on article 6must therefore await agreement on the wording of thatdefinition.

23. Mrs. VLASOVA (Byelorussian Soviet SocialistRepublic) endorsed the view that the effectivenessof the Committee's work on article 6 depended onspeedy agreement on the wording of article 2, sub-paragraph 1 (/)• She believed that a basis for that couldbe found in the proposal in document A/CONF. 129/C.1/L.2; it retained the principle underlying the defini-tion of the term "rules of the organization" proposedby the International Law Commission, left unchangedthe sources which together constituted those rules, andcontained the reference needed for a proper correlationwith international treaty-making.

24. The overriding importance of the norms of con-stituent instruments was a universally recognized prin-ciple of international law and should be enshrined inthe proposed convention. Some representatives hadobjected to the expression "legally binding instru-ments" in the proposal; its purpose was to emphasize,


among a large number of documents, those which wereof legally binding character. That was justified, sincethe documents which determined the rules of an organ-ization must necessarily be legally binding on all itsmembers and organs. The adoption of the proposalwould greatly simplify the problem of determining thesource of international treaty-making capacity. Be-cause of the direct correlation between article 6 andarticle 2, subparagraph 1 (/)> the Conference mustharmonize its decisions on those two provisions. Ifthe proposal in document A/CONF.129/C.1/L.2 wasadopted, her delegation would be able to support thewording of article 6 proposed by the International LawCommission.

25. Mr. LI BAE HYON (Democratic People's Re-public of Korea) said that, provided agreement wasreached on a suitable definition of the term "rules of theorganization" in article 2, the legal basis of the capacityof international organizations to conclude treatieswould be well expressed by the present wording ofarticle 6. However, he found the use of the term "rel-evant" confusing, and suggested that, for the sake ofclarity and consistency, the expression "rules of theorganization" should be used throughout the draft ar-ticles.26. Mrs. THAKORE (India) said that article 6 was offundamental importance. Its aim was to indicate, forthe sole purposes of the legal regime governing treatiesto which international organizations were parties, therules by which treaty-making capacity was to be as-sessed. Since international organizations could not besubjected to a uniform rule and confined within anunduly rigid framework which might hamper their fu-ture activities, the draft article provided that suchcapacity should be governed by the "relevant rules" ofthe organization, which included, according to article 2,subparagraph 1 0"). the organization's constituent in-struments and established practice. The addition of theadjective "relevant" made it clear that article 6 con-cerned only those rules which were relevant in deter-mining the question of the treaty-making capacity of theinternational organization.

27. The Commission's wording was flexible and alsoneutral, in the sense that it did not prejudge the variousdoctrines concerning the basis of the capacity of inter-national organizations to conclude treaties. It took fullaccount of the advisory opinion of the InternationalCourt of Justice, handed down in 1949, in the matter ofReparation for injuries suffered in the service of theUnited Nations3 to the effect that whereas a State pos-sessed the totality of international rights and dutiesrecognized by international law, the rights and duties ofan entity such as the United Nations must depend uponits purposes and functions as specified or implied in itsconstituent documents and developed in practice.

28. The wording of article 6 was the result of a com-promise between the conflicting points of view that hadbeen expressed both in the International Law Commis-sion and in the comments of Governments. Her delega-tion found it fully acceptable, since it respected the

1 Reparation for injuries suffered in the service of the UnitedNations, Advisory Opinion: I.C.J. Reports 1949, p. 174.

faculty of international organizations to develop a prac-tice, a matter to which they attached great importance.

29. Her delegation had no strong views on the Aus-trian amendment and could accept it if it commandedgeneral support. It could not, however, accept theMexican proposal because of its restrictive formu-lation.

30. Mr. FOROUTAN (Islamic Republic of Iran) saidthat the International Law Commission's approach toarticle 6—that the capacity of an organization to con-clude treaties was defined solely by the rules of thatorganization—was unsatisfactory. What would happenin cases where the rules of an organization did not giveit that capacity? It seemed that the Commission hadfound it very difficult to resolve the issue and hadtherefore confined itself to proposing an article whichavoided it. The Austrian proposal added an unneces-sary paragraph which would only weaken the force ofarticle 6. He agreed with the representative of Greecethat the wording proposed by Mexico was more restric-tive than the Commission's draft.

31. Mr. DALTON (United States of America) saidthat his delegation would not object to the Austrianamendment, although it found it unnecessary. TheMexican proposal, on the other hand, risked compli-cating the article, as well as the life of internationalorganizations and those required to deal with them inthe future. A decision on article 2, subparagraph 1 (/),would affect article 6, but the matter should be settled inthe light of several articles, not of article 6 alone, at theend of the consideration of the draft articles.

32. Mr. BARRETO (Portugal), referring to the Aus-trian amendment, said that the draft convention was nota mere protocol to the 1969 Vienna Convention, andtherefore the capacity of States to conclude treatiesshould be defined in the new instrument as well. In thefuture a State might be a party to the convention underdiscussion but not to the earlier one, and might thenseek in the former a provision governing the capacity ofStates to conclude treaties. The Austrian amendmentshould therefore be adopted. His delegation felt con-siderable sympathy for the Mexican proposal, in so faras it sought to provide precise rules on the capacity ofinternational organizations to conclude treaties. How-ever, the wording of the proposal was closely con-nected with the one in document A/CONF. 129/C. 1/L.2for article 2, subparagraph 1 (/)> and therefore its effectwas still uncertain. It was clear that the rules of theorganization must determine the capacity of an inter-national organization to conclude treaties, but did thoserules consist only of the constituent instruments orinclude elements such as practice too? Because of thosedoubts, his delegation preferred the International LawCommission's text. But the word "relevant" mightcause difficulties; either it should be removed or thenotion it conveyed should be made more precise. Thatwas probably a matter for the Drafting Committee.

33. Mr. ANGHEL (United Nations Council for Na-mibia) said that, if the Conference approved the addi-tion proposed by Austria to article 6, the article wouldbecome an exhaustive list of subjects of internationallaw whose capacity to conclude international treaties


was recognized, but one which omitted the United Na-tions Council for Namibia. He therefore proposed that,in order to make the Council's position clear, the articleshould also contain, after the paragraph proposed byAustria, a paragraph stating that the United NationsCouncil for Namibia possessed the capacity to con-clude treaties in accordance with the relevant resolu-tions and decisions of the General Assembly.

34. Mr. WOKALEK (Federal Republic of Germany)observed that article 6 merely reflected internationalpractice. The point about the competence of an inter-national organization being derived from its purposesand functions was already covered under the expres-sion "rules of that organization" and therefore need notbe specified. However, he agreed that article 6 must beread in conjunction with article 2, subparagraph 1 (/)•When the problem of drafting the latter had beensolved, the problem of article 6 would be solved also.But a further question might arise in connection withthe settlement of disputes, namely, who could definewhether an act of an organization was within the scopeof its rules or not? Such a matter could not be easilydetermined from outside the organization.

35. His delegation regarded the Mexican proposal asimposing an unnecessary limitation on the capacityof an international organization. As far as the addi-tion proposed by Austria was concerned, paragraph (7)of the Commission's commentary to the article (seeA/CONF. 129/4) seemed to make it unnecessary, but hisdelegation was flexible on the matter.

36. Mr. CRUZ FABRES (Chile) said that there wasa difference in legal status between States and organiza-tions. He therefore supported the Austrian proposal,which would make the matter plain by spelling out thedifference in separate paragraphs. It was important alsothat the draft should make it clear that the term "rel-evant rules" referred to the constituent instrumentrather than the practice of international organizations.The practice of an international organization could notexceed the terms of its constituent instrument, and thatinstrument could never be modified by practice.

37. Mr. GUNEY (Turkey) also supported the Aus-trian amendment, which was useful as a reminder. If itwas accepted, the title of article 6 should be altered toread: "Capacity of States and international organiza-tions to conclude treaties". He did not think that theMexican proposal would be an improvement on theexisting text.

38. Mr. HARDY (European Economic Community)said that at present the conclusion of treaties by in-ternational organizations was an established fact. TheCommission had wisely not considered it necessary todetermine either the foundation of their capacity toconclude treaties or the limits of that capacity. It hadleft the question to be decided in accordance with themeaning of the words "rules of that organization". Theword "governed" was the key word in its draft ofarticle 6. Those rules should be defined in article 2,subparagraph 1 (/)> in a wide and flexible way. The needfor that could be illustrated from the practice of theEuropean Community. The European Coal and Steeland Atomic Energy Communities had general treaty-

making powers in their constituent instruments. TheEuropean Economic Community had treaty-makingpowers in specific articles of its constituent instrument.The Court of Justice of the European Communities hadadopted a series of decisions on the subject; the prin-ciple underlying them was that the competence of theCommunities exercised internally brought about anexternal competence. Those principles were based ondeductions made from the constituent instruments, aswell as on provisions which those instruments con-tained.

39. The Commission's text of article 6 was satisfac-tory. The wording proposed by Mexico was too restric-tive, and its use of the expression "other rules'' was notclear.

40. Mr. JESUS (Cape Verde) observed that the rightof sovereign States to enter into treaties was an essen-tial attribute of their sovereignty, whether it was statedin a legal instrument or not. Article 6 of the ViennaConvention on the Law of Treaties merely recorded arule of customary international law. Accordingly, theCommission, in drafting the corresponding article 6,had omitted to mention the capacity of States. TheAustrian amendment proposed to repair that omissionin order to retain the parallelism between the draftarticles and the 1969 Convention. It was unnecessary,but his delegation could accept it. He assumed that theintention of the term "relevant rules" was to echo thedefinition in article 2, subparagraph 1 (/)• If so, the word"relevant" should be deleted so that article 6 correctlyreflected that definition.

41. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that the Commission's formulation of arti-cle 6 was an accurate reflection of the characteristics ofan international organization's treaty-making capacity.Only an intergovernmental organization had the right toconclude treaties, and that right derived from its rules.The attitude of many Governments towards article 6would be determined by the formulation adopted forarticle 2, subparagraph 1 (/)• The proposal for thatsubparagraph in document A/CONF. 129/C.I/L.2 wasclearer than the Commission's definition, since it re-ferred to legally binding instruments and practice basedon the organization's constituent instruments. If thatproposal was adopted, article 6 could be approved asformulated by the Commission, provided that the word"relevant" was deleted from it in order to bring it intoline with the new definition.

42. His delegation had no objection to the Austrianamendment. He asked himself what the consequenceswould be if an international organization concluded atreaty in violation of its constituent instrument. Therewas no provision about such a contingency in the draftarticles, but the Conference should consider the pos-sibility of inserting one and the place it might occupyamong the articles.

43. Mr. MONNIER (Switzerland) referred to thestatement in paragraph (2) of the Commission's com-mentary that article 6 indicated by what rules thecapacity of international organizations to concludetreaties should be assessed. In the event of the rules ofan international organization providing no clear indi-

66 Summary records—Committee or the Whole

cation in that respect, their silence or lack of clarityshould not be interpreted as depriving the organizationof that capacity. In such cases, when treaty-making wasappropriate for the implementation of the purposes forwhich the international organization had been set up,its capacity to conclude treaties would derive fromthe powers which international organizations implicitlypossessed under international law to discharge theirfunctions. Considerable practice bore witness to thetruth of that proposition. His delegation could notaccept the Mexican proposal and would support theexisting text of article 6.

44. Mr. RAMADAN (Egypt) said that the treaty-making capacity of international organizations flowedfrom international law and from the purposes for whichthey had been established. That capacity need not beexpressly mentioned in the constituent instrument,but States could withhold it from an organization ofwhich they were members or could determine it on acase by case basis. His delegation approved the existingwording of article 6.

45. Mrs. OLIVEROS (Argentina) said that the Com-mission's text of article 6 was clear, but depended onthe definition to be given in article 2, subparagraph 1 (/')•The word "relevant" should be deleted. Her delegationcould support the Austrian amendment; it was not re-dundant to devote a paragraph to the treaty-makingcapacity of States, since the draft articles were not anappendage to the Vienna Convention on the Law ofTreaties and a State might be a party to one conven-tion and not the other. If the Austrian amendment wasadopted, the title of article 6 should be amended toread: "Capacity of the parties to conclude treaties".The term "party" was defined in article 2, subpara-graph 1 (g).

46. Mr. CASTROVIEJO (Spain) said that, in settlingthe discussion between those who thought that thecapacity of international organizations to concludetreaties derived from general international law andthose who thought that it derived solely from the will ofStates as expressed in the constituent instruments, theCommission's draft article constituted a judgement ofSolomon. Although it did not completely satisfy hisdelegation, it was perhaps the best wording to adoptand had the merit of being short and clear. He under-stood the word "relevant" to refer to the contents ofarticle 2, subparagraph 1 (/)• Any other explanationwould raise the question whether practice was a sourceof the rules from which capacity to conclude treatiesflowed.

47. He did not consider that the Austrian amendmentsimplified or clarified the text. The Mexican proposalsought to draft the article in more restrictive terms, thusimposing a measure of inflexibility on its interpretationwhich would hamper the development of internationalpractice and tend to confuse the distinction betweenStates and international organizations in the matter oftreaty-making.

48. Mr. RODRIGUEZ CEDENO (Venezuela) saidthat international organizations had treaty-makingcapacity both as subjects of international law and byvirtue of their rules, which constituted an expression of

the will of the States establishing them. That did notpreclude recognition of an implicit competence exer-cised in pursuance of the purposes of the internationalorganization as set out in its constituent instrument.49. The Commission's draft of article 6 was incom-plete, and the Mexican proposal sought to remedy thatdefect by basing it on the general rules on treaty-makingcapacity laid down in the 1969 Vienna Convention.However, the wording proposed by Mexico wouldexpressly deny the capacity of international organiza-tions to conclude treaties with subjects of internationallaw other than States or international organizations andlimit their competence to what was in their rules and tothe powers implicitly conferred on them by interna-tional law. If the Mexican proposal was amended tocover those points, his delegation would find it accept-able.50. Mr. KERROUAZ (Algeria) said that the Commis-sion's proposal for article 6 was acceptable but must beread in conjunction with article 2, subparagraph 1 (/).The Drafting Committee should ensure that the defini-tion of the term "rules of the organization" in article 2was intelligible. The Austrian amendment was redun-dant, since the capacity of States to conclude treatieswas an attribute of State sovereignty and consequentlyhad not been mentioned in the draft article. However,he had no objection to the Austrian proposal beingreferred to the Drafting Committee, which should con-sider it in conjunction with the oral amendment sub-mitted by the United Nations Council for Namibia.51. Mr. SK1BSTED (Denmark) said that the Inter-national Law Commission's draft struck a satisfactorybalance between different schools of thought andshould be approved as it stood.

52. Mr. SIEV (Ireland) observed that the Commis-sion's text of article 6 was a compromise, as para-graph (2) of its commentary explained. He agreed withthe representative of the European Economic Com-munity that the key word in the text was "governed".The wording proposed by Mexico was more restrictivethan the existing text through its reference to "con-stituent instruments". His delegation did not supportthe addition proposed by Austria, which according toparagraph (7) of the commentary was unnecessary. TheCommission's text of article 6 was balanced, and hisdelegation was in favour of its adoption.

53. Mr. SANG HOON CHO (Republic of Korea) saidthat his delegation believed that the rule embodied inarticle 6 was the cornerstone of the draft articles, sinceit dealt with the source of the capacity of internationalorganizations to conclude treaties. In principle the Re-public of Korea was in favour of the Commission's text,which represented a compromise between the two dif-ferent schools of thought which existed on that subject.The Mexican proposal was too restrictive in scope, butAustria's amendment was acceptable because, as somespeakers had indicated, the subject-matter of the 1969Vienna Convention was different from that of the draftconvention.

54. Mr. VIGNES (World Health Organization) saidthat the draft article raised two issues: the capacity ofinternational organizations to conclude treaties and the


limits of that capacity. As far as the first was concerned,the Committee needed to take a realistic approach tothe matter and consider whether it could reasonably beclaimed that such capacity had to be provided for in anorganization's rules in order to exist; after all, organiza-tions had been concluding treaties for many years, andit could not now be held that they had no right to do so iftheir constituent instruments did not so provide. Therules of the World Health Organization (WHO) weresilent on the matter, yet the organization did concludetreaties, like many other universal international organ-izations, and its capacity to do so had never been chal-lenged. Quite recently the International Court of Jus-tice had interpreted an agreement concluded betweenWHO and Egypt, and in doing so had never questionedthe capacity of WHO to conclude it. That capacitytherefore flowed from the implied powers of the organ-ization, which were necessary to enable it to attain itspurposes and objectives.

55. With regard to the limits of an organization'streaty-making capacity, one must also take a realisticapproach. An organization, in concluding treaties, didso having regard to certain provisions of internationallaw and to the rules of the organization, where suchrules existed. His organization considered that theCommission's text achieved the necessary balance andflexibility, without too much detail, and that it reflectedthe present state of international law with regard tointernational organizations. It had the full support ofWHO and, he was authorized to say, of the Inter-national Labour Organisation. They could accept theAustrian amendment, but considered Mexico's pro-posal to be too restrictive.

56. Mr. ROCHE (Food and Agriculture Organizationof the United Nations) placed particular emphasis onthe need for article 6 to be realistic. Organizations hadto be in a position to conclude treaties of some kind; itwas inconceivable that an intergovernmental organiza-tion should not be able to conclude some form of treatywhere it needed to do so in order to discharge its con-stitutional mandate. The treaty which most organiza-tions needed to conclude was a headquarters agreementwith the host State, and therefore it was virtually im-plicit in the constituent instrument of all intergovern-mental organizations, if not expressly stated, that it hadthe capacity to conclude a treaty. The constituent in-strument, the rules of the organization and its prac-tice determined the extent of the treaty-making capac-ity, since no organization would claim to have thesame treaty-making power as a State. The formulationadopted by the International Law Commission for arti-cle 6 was therefore reasonable and, if interpreted prag-matically, was acceptable to his organization.

57. Mr. HERRON (Australia) expressed support forthe Commission's draft of article 6. It was a judiciouscompromise which did not purport to be comprehen-sive or exhaustive. It was not necessary to add Aus-tria's amendment to the article, although given its sub-stance, his delegation could not oppose it. However, toplace Austria's statement on the capacity of Statesalongside the Commission's text on the capacity ofinternational organizations would invite comparisonsabout the respective scopes of the two statements that

were not necessarily wholly valid. Mexico's proposalwas somewhat vague and was therefore unacceptableto his delegation.58. Mr. GOHO-BAH (Cote d'lvoire) said that hisdelegation had no difficulties with Austria's amend-ment to the Commission's text and would support it if itproved acceptable to the Committee. It considered thatsubparagraph 1 (/) of article 2 had a decisive influenceon article 6; consequently, a precise definition in thatsubparagraph should provide a solution to the problemposed by article 6 with regard to the capacity of inter-national organizations to conclude treaties.59. Mr. NEUMANN (United Nations IndustrialDevelopment Organization), speaking also on behalf ofthe United Nations Educational, Scientific and CulturalOrganization (UNESCO), said that as he understood it,the Austrian amendment, if adopted, would mean that itwould be added to the Commission's draft merely toexpress a generally accepted rule of international pub-lic law. Both UNESCO and the United Nations Indus-trial Development Organization preferred the Commis-sion's text to that of Mexico, since the notion of therules of the organization appeared in several articles ofthe draft and would be defined precisely in article 2.Also, Mexico's proposal would have the effect of re-stricting the treaty-making capacity of international or-ganizations to the conclusion of treaties with States orwith other international organizations, whereas inter-national agreements were often concluded between in-ternational organizations and other entities. That effectwas undoubtedly unintended and the Drafting Commit-tee should be able to eliminate it by co-ordinating theformulation of article 6 with that of article 3 and arti-cle 1 (b).

60. Mr. SZENASI (Hungary) said that his delegationcould support the Commission's draft provided that thewording of article 2, subparagraph 1 (/)> was amended inaccordance with the proposal in document A/CONF.129/C.1/L.2 and that the word "relevant" was deleted fromarticle 6.61. It had no major difficulty in accepting the Austrianproposal.

62. Mr. ALBANESE (Council of Europe) said thathis organization's view of the article was identical tothat of Greece and Switzerland. It believed that thecapacity of an international organization to concludetreaties proceeded from international law, and that theinternal rules of an organization merely set the limitsand conditions for its exercise. In determining thoselimits and conditions all the rules of an organizationwere important: not merely the constituent instrumentbut the purposes of the organization, the acts of itsdecision-making organs and its practice. Consequently,his organization believed that article 6 was not indis-pensable, but if an article on the capacity of inter-national organizations was necessary, the Council ofEurope would support the reasonable compromise rep-resented by the International Law Commission's textof the article.

63. Mr. CAMINOS (Organization of AmericanStates) said that the Commission's text reflectedexisting international law with regard to the capacity of


international organizations to conclude treaties. Thelimits of that capacity, as the representative of theWorld Health Organization had implied, were deter-mined by article 2, subparagraph 1 (/), and the definitionwhich it gave was acceptable. Any wording that tendedto restrict existing law which in the past had caused noinconvenience to the work of international organiza-tions in their relations with States or other internationalorganizations might give rise to difficulties for thefuture functioning of those organizations.64. Mr. NAWAZ (International Fund for AgriculturalDevelopment) said that article 6, as it stood, was flexi-ble enough to accommodate the various types of situa-tion which might arise. However, the definition of theterm "rules of the organization" in article 2, subpara-graph 1 (/). and Mexico's proposal would create prob-lems for his organization and for other internationalfinancial institutions involved in development work. Ifthey had to determine their treaty-making capacity onthe basis of an express provision in their charters, theywould find it difficult. In the past they had interpretedprovisions in their constitutions giving them interna-tional legal capacity as giving them authority to enterinto treaties. It might therefore be necessary to definethe rules to which article 6 referred in such a way thatthe draft articles did not create difficulties for thoseinstitutions.

65. Mr. POURCELET (International Civil AviationOrganization) endorsed the views expressed by therepresentatives of other organizations, in particular theFood and Agriculture Organization of the United Na-tions and the World Health Organization, with regard tothe scope and content of article 6 and the capacity ofinternational organizations to conclude treaties. His

own organization's constitution made no specific men-tion of its capacity to conclude treaties. However, ithad been doing so for over 40 years, and it consideredthe Commission's text to be acceptable as it stood.

66. Mr. BERNAL (Mexico) said that the discussionhad shown that his delegation's proposal would notresult in a clearer text, and he therefore withdrew it. Hisdelegation would support the Commission's text.

67. Mr. TUERK (Austria) sais that his delegation re-alized that a considerable number of delegations foundits amendment unnecessary and preferred to accept thereasoning of the International Law Commission. Ittherefore withdrew its amendment and hoped that in sodoing it would contribute to a consensus on article 6.

68. Mr. ANGHEL (United Nations Council for Na-mibia) said that the withdrawal of the Austrian amend-ment removed all justification for his own proposal,which he therefore withdrew as well.

69. The CHAIRMAN said that the Committeeseemed prepared to accept the text of article 6 sub-mitted by the International Law Commission on theunderstanding that if it decided to give article 2, sub-paragraph 1 0). a different wording from that proposedby the Commission it would have to make consequen-tial changes in article 6 and other articles. Thosechanges might be made by the Drafting Committee.Unless he heard any objection, he would take it that theCommittee referred article 6 to the Drafting Committeeon that understanding.

// was so decided.

The meeting rose at 6 p.m.

7th meetingTuesday, 25 February 1986, at 10.10 a.m.





Article 7 (Full powers and powers)

1. The CHAIRMAN invited the Expert Consultant toexplain how the International Law Commission cameto the conclusion embodied in article 7.2. Mr. REUTER (Expert Consultant) said that thearticle was a compromise between two tendencies or

attitudes, both legitimate. The many amendments sub-mitted showed that the two tendencies were stronglyrepresented in the Conference.

3. Beginning in the title, the terminology used in re-gard to States and international organizations was dif-ferent. The term "full powers" was applied to the cre-dentials of representatives of States and the term"powers" to the credentials of representatives of inter-national organizations.

4. From a strictly legal point of view, the terms "fullpowers" and "powers" had exactly the same content,as was the case with the terms "ratification" and "actof formal confirmation". The terms were both used inState practice, but not in the same manner by all States.The differences arose largely because the terms weretaken from internal law. It was of course importantto remember that the adjective "full" did not relateto the extent of the powers or of the mandate of the


representative but rather to the rank of the authorityconferring the powers. A representative holding "fullpowers" did not have any greater powers than a rep-resentative holding "powers". Regardless of the label,the extent of a representative's powers depended on theterms of his credentials.5. That being so, it might be asked why the same termwas not applied to credentials issued by a State andcredentials issued by an international organization. Theanswer was that the terms used had a past and would nodoubt have a future. The term "full powers" belongedto the tradition of Foreign Ministries and went back tothe time when the person holding full powers had rep-resented a monarch. In view of that tradition, oneschool of thought in the Commission had felt that theterm "full powers" could only be associated with aState. In the compromise reached in the Commission, aconcession had been made on the question of termi-nology, which did not materially affect the substance.

6. There had, however, been another tendency in theCommission which stressed the importance of inter-national organizations as an element in the progress ofinternational law. Reflecting that tendency, the Com-mission had recognized the need for some flexibility forinternational organizations. That flexibility, however,did not mean complete freedom.7. Referring to the proposals for the deletion of sub-paragraph 4 (b), he explained that its provisions werebased on the practice of international organizations.The provision permitted a person to be considered asrepresenting an international organization for the pur-pose of expressing the organization's consent to bebound by a treaty if the practice of the organization'scompetent organs or other circumstances indicated thatthat person could represent the organization withouthaving to produce powers. That element of flexibilitydid not leave complete freedom to the organization inthe matter, since reference was made to the practice ofthe organization's competent organs. The practice ofthose competent organs was the practice of the memberStates expressed through them.

8. The Commission was concerned to ensure that in-ternational organizations should be enabled to live andsurvive. In that spirit it had adopted the compromisetext in article 7.9. The CHAIRMAN invited the Committee to con-sider the article and proposed amendments to it.10. Mr. TUERK (Austria), introducing his delega-tion's amendment (A/CONF.129/C.1/L.4), explainedthat the replacement in subparagraphs 2 (b) and 2 (c) ofthe term "heads of delegations of States" by the words"representatives accredited by States" would bring thetext into line with article 7 of the 1969 Vienna Conven-tion on the Law of Treaties,1 from which there was novalid reason to depart.11. A similar explanation applied to the proposal toreplace the concluding words of subparagraph 2 (c),"for the purpose of adopting the text of a treaty withinthat organization", by the words "for the purpose of


adopting the text of a treaty in that organization ororgan".12. In paragraph (4) of its commentary to article 7 (seeA/CONF. 129/4), the Commission explained that thelanguage in article 7 (which differed from that of the1969 Vienna Convention) was based on article 44 of theVienna Convention on the Representation of States inTheir Relations with International Organizations of aUniversal Character.2 However, that article 44 dealtwith the credentials of the head of delegation "and ofother delegates". The position was altogether differentin subparagraph 2 (c) of article 7, the provisions ofwhich were limited to heads of delegations.

13. There were practical reasons for going back to the1969 Vienna Convention formula. When a draft con-vention was discussed in an international conference, itwas not feasible at the time of the final vote on theadoption of the text to try to verify whether the personthen acting for a delegation was actually its head.14. Lastly, his delegation saw no good reason for theCommission's having replaced the 1969formula, "toaninternational organization or one of its organs", by thewords "to an organ of an international organization" insubparagraph 2 (c). His delegation accordingly pro-posed the reintroduction of the 1969 wording.15. Mr. BEN SOLTANE (Tunisia), speaking also onbehalf of the Mexican delegation, introduced theMexican and Tunisian amendments to delete subpara-graph 4 (b) (A/CONF. 129/C.1/L.8 and L.13). He drewattention to article 11 (Means of expressing consent tobe bound by a treaty), which stated that consent mightbe expressed by signature, exchange of instrumentsconstituting a treaty, ratification, acceptance, approvalor accession, "or by any other means if so agreed".That article introduced a high degree of flexibility andleft great freedom to an international organization. Sub-paragraph 4 (b) was therefore redundant and should bedropped.

16. Mr. WANG Houli (China), introducing his delega-tion's proposal (A/CONF. 129/C.l/L. 16) to delete thewords "and powers" in the title and replace the word"powers" by "full powers" throughout the texts ofparagraphs 3 and 4, said that no terminological distinc-tion should be made between the powers of the rep-resentative of a State and those of a representative of aninternational organization. Scholars were agreed thatthere was no significant difference in substance be-tween the powers of the two categories of represen-tatives.

17. The capacity of an international organization toconclude treaties was of course not the same as that ofa State. An international organization's capacity wasalways limited. That fact, however, had no bearing onthe powers of the representative of an organization inthe conclusion of a treaty. Even if the organization'scapacity was limited, the powers of its representativescould still be "full powers".

2 See Official Records of the United Nations Conference on theRepresentation of Slates in Their Relations with International Organ-izations, vol. II (United Nations publication, Sales No. E.75.V.I2),p. 207.


18. Mr. SCHRICKE (France), introducing his delega-tion's proposal to delete subparagraph 2 (e) (A/CONF. 129/C. 1/L.20), noted that similar amendments had beenproposed by Cuba (A/CONF. 129/C.l/L.25) and theUnion of Soviet Socialist Republics (A/CONF. 129/C.1/L.29).19. Subparagraph 2 (e) was a departure from the 1969Vienna Convention. In paragraph (6) of its commentaryto the article (see A/CONF. 129/4), the Commissionsaid that the provision was based on article 12 of theConvention on the Representation of States. Subpara-graph 2 (e) did not, however, reproduce the wording ofthat article.20. It was neither desirable nor in conformity withcurrent practice to dispense the head of permanentmission from producing full powers. Even if the inten-tion had been to introduce a measure of flexibility soas to take into account the practice of some States,subparagraph 2 (e) would be unnecessary, since sub-paragraph 1 (b) already provided that a person wasconsidered as representing a State for the purpose ofadopting or authenticating the text of a treaty or for thepurpose of expressing the consent of the State to bebound by such a treaty if it appeared from practice thatthat person was considered as representing the Statefor such purposes "without having to produce fullpowers". Subparagraph 2 (e) should thus be dropped.Moreover, the Expert Consultant's explanation of thereasons which had led the International Law Commis-sion to use the terms "full powers" and "powers" hadpersuaded his delegation of the validity of that termino-logical distinction.21. Mr. ALM0D6VAR (Cuba) said that paragraph 1of his delegation's amendment (A/CONF. 129/C.l/L.25) proposed to replace the present text of subpara-graph 1 (b) by a more precise text in line with thecorresponding provision of the 1969 Vienna Con-vention.22. With regard to paragraph 2 of the amendment, hisdelegation supported the proposal to delete subpara-graph 2 (e) of the article but considered that moreprecise language as proposed in his delegation's amend-ment should be used if the subparagraph was retained.23. His position was similar with regard to subpara-graph 3 (b). He would prefer to see it deleted, sincethere was no corresponding provision in the 1969Vienna Convention, but considered that it should bereworded in the manner proposed in his delegation'samendment if it was retained.24. Paragraph 4 of his delegation's amendment calledfor the deletion of subparagraph 4 (b), as proposed byMexico and Tunisia.25. Sir John FREELAND (United Kingdom), intro-ducing the amendment proposed by Japan and theUnited Kingdom (A/CONF. 129/C. 1/L.26), said that thefirst part of the amendment was designed to alignthe text more closely with that of article 7 in the 1969Vienna Convention by reintroducing the notion of in-tention as an element to be taken into account in caseswhere full powers were not produced. The presence ofthat notion in subparagraph 1 (b) of article 7 of theVienna Convention had the effect of making the matter

less one of ostensibly general rules than one for theparties to a negotiation in a particular case to deter-mine. The sponsors considered that situations of thetype envisaged in subparagraphs 1 (b), 3 (b) and 4 (b) ofarticle 7 were not the proper subject of a general rule,but should be regulated by the intentions of the nego-tiators in particular cases. The Commission had in-dicated that such intentions could be judged by pastpractice and other circumstances. In the first partof their proposed amendment, which concerned sub-paragraph 1 (b), the delegations of Japan and the UnitedKingdom sought to give expression to that view.26. They did not propose a similar amendment tosubparagraph 2 (e) because proposals for the deletion ofthat subparagraph had been circulated.27. The two delegations noted with interest that thedelegations of Cuba and of the Soviet Union also tookup the question of intention in their proposed amend-ments. It appeared to them, however, that the formerdelegation (and perhaps the latter) sought to introducethe notion of unilateral, rather than joint, intention, andthat seemed to suggest an important and substantivedeparture from the regime of the 1969 Vienna Conven-tion. They would welcome clarifications on the subject.If the matter proved to be merely one of wording,harmonization of the proposals might be left to theDrafting Committee.

28. The text could not be wholly aligned with theprovisions of the Vienna Convention, as the Commis-sion had for various reasons modified the referenceto practice in the new draft and offered a some-what puzzling difference in formulation in subpara-graphs 3 (b) and 4 {b). In the second part of theiramendment, the delegations of Japan and the UnitedKingdom proposed an amalgamation of the two sub-paragraphs, in which the simpler of the Commission'sformulations was retained.

29. In the joint proposal, only the term "full powers"was used. If the proposal was adopted, a consequentialchange in the title of article 7 would be required. Thereasons for that simplification had been set out bythe representative of China, whose statement he com-mended to the Committee.

30. The United Kingdom delegation supported theAustrian amendments to subparagraphs 2 (b) and (c),but could not accept the Mexican, Tunisian, Cuban andSoviet proposals for the deletion of subparagraph 4 (b),which would have the effect of requiring that an inter-national organization wishing to express its consent tobe bound by a treaty would have to provide a formaldocument of authorization in every case. That was incontradiction with established, well-accepted and well-understood international practice, particularly withinthe United Nations system. On the other hand, heconcurred with the French proposal for the deletion ofsubparagraph 2 (e).

31. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that, as a matter of principle, draft pro-visions of the projected convention should wheneverpossible correspond to their counterparts in the 1969Vienna Convention. In the present case, the differenceswere both substantial and unjustified.


32. Article 7, paragraph 2, of the 1969 Vienna Con-vention established three categories of persons whowere entitled to perform various acts related to treatiesin virtue of their functions and without having to pro-duce full powers. Comparing those provisions with thecontents of article 7, subparagraph 2 (c), he showed thatthe latter, which proposed conditions under whichheads of permanent missions to an international organ-ization would not be required to produce full powers,was not only at variance with current practice but alsotended to place heads of diplomatic missions (i.e., am-bassadors) in an invidious position. Why should thelatter have to produce full powers for the purposes ofsigning a treaty, if heads of permanent missions neednot? For those reasons, his delegation proposed thedeletion of the subparagraph.

33. The text of subparagraph 4 (b) presented a similardifficulty. He knew of no treaties where the presenta-tion of full powers (with the exceptions set out in arti-cle 7, paragraph 2, of the Vienna Convention) was notan obligation on all the parties. Consistency requiredthat in the cases under consideration the same condi-tions should apply to representatives of States and ofinternational organizations alike. His delegation con-sequently proposed the deletion of the subparagraph.

34. Mr. MOUSSAVOU-MOUSSAVOU (Gabon), re-ferring to the statement by the Chinese representative,remarked that the distinction between "full powers"and "powers" was undoubtedly a source of present andpotential confusion. Current practice was not clear,and representatives of States might receive either fullpowers or powers. Unless one of the results of adoptingarticle 7 was to encourage States to harmonize theirpractices and issue uniform, full powers to their rep-resentatives, the distinction would be hard to establish.

35. Turning to specific proposals for amendment, hesaid that subparagraph 4 (b) as drafted appeared tointroduce an unjustifiable distinction between practiceas referring to the competent organs and as referring tothe international organization itself. Moreover, as or-gans were the means of action of an organization, theformer could hardly have practices which the latterwould disavow. His delegation favoured the deletion ofthe subparagraph or its absorption in a new wording, asproposed by Japan and the United Kingdom.

36. With regard to subparagraph 2 (b), he wonderedwhether it was wise or practicable to dispense with therequirement that heads of delegations of States to aninternational conference produce full powers. On whatother criteria could their authority reasonably be es-tablished? Nor could he accept the replacement of"heads of delegations of States" in the original draftby "representatives accredited by States", as Austriaproposed. Lastly, and although he believed that asdrafted, subparagraph 2 O) was ambiguous and mightrequire some modification, he would require furtherjustification before agreeing with the French proposalfor its deletion.

37. Turning to subparagraph 3 (b), he asked againwhat criterion, other than the presentation of appro-priate powers, could reasonably be invoked in con-sidering a person as representing an organization which

had no practice. He considered that the provisions ofthe subparagraph might give rise to confusion at a timewhen international organizations were proliferating,and therefore favoured its rewording or deletion.38. Mr. PASZKOWSKI (United Nations Educa-tional, Scientific and Cultural Organization) re-called that, in connection with article 2, subpara-graph 1 (c), UNESCO had commented in writing (seeA/CONF. 129/5, p. 105) that the distinction between"full powers" and "powers" did not seem necessary.In fact, the full powers of representatives of Stateswere rarely "full" in the strict sense of that word, whilethe powers of representatives of international organ-izations were generally sufficient for their intendedpurpose. UNESCO would prefer that the term "fullpowers" be used in both cases, as an accepted formula-tion in international relations. Should the Committeeconsider, however, that a distinction should indeed bemade, it would advocate the replacement of the word"powers" by "authorization".

39. Noting that article 7 of the 1969 Vienna Conven-tion referred to "Ministers for Foreign Affairs" and thedraft under consideration to "Ministers of Foreign Af-fairs", he wished to share with the Drafting Committeehis belief that the former expression was the morecorrect.40. Mr. TUERK (Austria) signified his delegation'sapproval of the various proposals to incorporate thenotion of intention in subparagraph 1 (b). He believedthat any differences in those proposals were not sub-stantive and could be resolved by the Drafting Com-mittee.

41. He also supported the proposal for the deletion ofsubparagraph 2 (e). The subparagraph was in contradic-tion with practice and established an illogical and unac-ceptable distinction between the heads of permanentmissions to international organizations and the heads ofbilateral diplomatic missions as far as the signing, orsigning ad referendum, of a treaty was concerned.

42. In connection with the Chinese delegation'sproposal, which he supported, he agreed that "fullpowers" was a historical term employed as such in the1969 Vienna Convention but no longer corresponding,in the strict sense, to present realities, where the sameact could be performed with "full powers" or with"powers".

43. He opposed the deletion of subparagraph 4 (b).Subparagraph 2 (a) of article 7 in both the Vienna Con-vention and the draft before the Committee listed cer-tain categories of persons, which did not include, forexample, heads of international organizations, of whomfull powers were not required. Thus, in cases such asthat of a treaty between a State and an internationalorganization, the former could be represented by itsForeign Minister, who did not have to produce fullpowers, and the latter by its Director-General, who did.Subparagraph 4 (b) was designed to take account ofthat situation. If the Committee none the less decidedthat it should be deleted, the Austrian delegation wouldintroduce a specific provision to the effect that theadministrative heads of international organizationswere not required to produce powers for the purpose of


expressing the consent of that organization to be boundby a treaty.44. Mr. TREVES (Italy) supported the Austrian pro-posal. However, the expression "an international con-ference of States in which international organizationsparticipate" was awkward and likely to give rise todifficulty.45. He did not agree with the proposal to delete sub-paragraph 4 (b) put forward by the Mexican and otherdelegations for the cogent reasons advanced by theAustrian representative. The joint Japanese-UnitedKingdom proposal, however, offered a useful com-promise which his delegation could accept.46. He fully agreed with the Chinese proposal toeliminate the distinction between "powers" and "fullpowers". The Expert Consultant had made it quiteclear that the legal content of the two terms was thesame, and it would be preferable to use one term, ratherthan two, to cover the same concept.47. He also agreed on the need to restore the conceptof the intention of States, as contained in a number ofamendments, and with the Japanese-United Kingdomproposal to combine paragraphs 3 and 4.48. Mr. HAYASHI (Japan) said that he fully sup-ported the Chinese proposal and the views expressedby the Chinese representative regarding the terms"powers" and "full powers". The Expert Consultant'sexplanation had further convinced him that any distinc-tion between those terms was unnecessary.

49. His delegation supported the Austrian proposalsand the proposals to delete subparagraph 2 (e) made byFrance and the Soviet Union.

50. Mr. RASOOL (Pakistan) said that, while he hadno strong views on the proposals put forward by Aus-tria, he would prefer on the whole to retain the termi-nology used by the Commission.

51. The proposal by Mexico and other countries todelete subparagraph 4 (b) was very sweeping in scopeand effect. There was a considerable body of inter-national practice whereby heads not only of interna-tional organizations but also of the subsidiary organs ofthose organizations had entered into treaties withoutformally producing powers or full powers. While heappreciated the concern of those who proposed thedeletion of subparagraph 4 (b), it might be preferable toredraft it to meet their concern and at the same time toreflect existing international practice in the matter.

52. With regard to the Chinese proposal, his delega-tion supported the distinction between "powers" and"full powers" and considered that it should be main-tained for the reasons it had already stated in connec-tion with article 2. Those reasons had been confirmedby the Expert Consultant. It had been said that fullpowers had only a historical background, but historyhad its own significance and should not be done awaywith at a stroke.

53. With regard to the French proposal, it seemed tohim that subparagraph 2 (e), if considered in the light ofsubparagraph 1 (b), was superfluous and could be de-leted.

54. Mr. ROMAN (Romania) said that his delegationfavoured the Commission's text and considered thatthe distinction made between States and internationalorganizations should be retained. It believed that bothterms, "full powers" for States and "powers" for inter-national organizations, should be maintained.55. His delegation was prepared to support the pro-posals to delete subparagraph 4 (b) and had no difficultyin accepting the proposal to replace certain expressionsused in article 7. It could also accept the French pro-posal to delete subparagraph 2 (e).56. Mr. SANYAOLU (Nigeria), stressing the needfor a distinction between powers and full powers, saidthat historically States had had powers to enter intotreaties by virtue of their sovereignty. Such treaties hadgenerally been concluded by the sovereign himself, butwhere delegation had been necessary, full powers hadbeen required. In the case of international organiza-tions, the power to conclude treaties derived from theconstituent instrument. His delegation considered thatthe historical distinction should be maintained, andtherefore preferred the Commission's draft.57. While his delegation had no strong views aboutthe proposal to delete subparagraph 2 (e), it consideredthat subparagraph 4 (b) should be retained, since itappeared to provide for what was known as ostensibleauthority. Moreover, a similar provision was to befound in the 1969 Vienna Convention, and deletion ofthe provision might prevent international organizationsfrom concluding treaties.58. Mr. ALBANESE (Council of Europe) said thatsubparagraph 4 (b) reflected a very wide practice fol-lowed in the international organizations for many yearsand relating mainly to the heads of secretariat of inter-national organizations. There were two main reasonswhy the Secretary-General was not required to producefull powers. In the first place, to do so would be a mereformality, since the Secretary-General would in fact besigning a document for himself. Secondly, since manyagreements, including those concluded between inter-national organizations, took the form of an exchange ofletters, it would be a complication to ask the two partiesto produce full powers. What mattered was the inten-tion of the parties, for that was what generally regulatedall the problems that might arise as to the way in whichthe intention to be bound was reflected. His delegationtherefore considered that that practice, as reflected insubparagraph 4 (b), should be retained, and supportedthe joint Japanese-United Kingdom proposal.

59. Mr. RAMADAN (Egypt) expressed his supportfor the Austrian, Chinese and French proposals. Heagreed with the Mexican and Tunisian proposals todelete subparagraph 4 (b).60. Since, however, there were cases in which therepresentative of an international organization was notrequired to produce powers, he would propose thatparagraph 4 should be replaced by the following:

"The chief administrative officer of an interna-tional organization is considered as representing thatorganization for the purpose of expressing the con-sent of that organization to be bound by a treatywithout having to produce powers".


61. He further proposed that a new paragraph 5should be added, reading:

"A person is considered as representing an inter-national organization for the purpose of expressingthe consent of that organization to be bound by atreaty if he produces appropriate powers".

62. Mr. ECONOMIDES (Greece) said that the Chi-nese proposal was implicit in the Japanese-UnitedKingdom proposal. Since the same situation was in-volved, the question was simply one of choice of term,and, in his delegation's view, the better-known term"full powers" should be chosen. Any distinction wouldbe quite artificial.63. He fully agreed with the Austrian proposal toamend the wording of subparagraphs 2 (b) and (c) so asto bring it into line with the wording of the 1969 ViennaConvention, but was surprised at the expression' 'inter-national conference of States", which was illogical.

64. For the reasons already stated by the French,Chinese and other representatives, he whole-heartedlysupported the proposals to delete subparagraph 2 (e),since its dispositions were quite contrary to Greek prac-tice.

65. He was completely opposed to the proposals todelete subparagraph 4 (b). Even if there were no paral-lelism with the 1969 Vienna Convention, there was anidentity of inspiration, and the balance achieved in theCommission's draft should not be disturbed.

66. With regard to the Cuban amendment, while heagreed in principle with the introduction of the notion of"intention", the intention seemed to be of a unilateralnature.

67. In the Japanese-United Kingdom proposal, on theother hand, the notion involved a bilateral element,which might perhaps satisfy the delegations that hadproposed the deletion of subparagraph 4 (b) and thusprovide a compromise solution. In his view, the com-bination of paragraphs 3 and 4 proposed by those twocountries was a matter that should be dealt with by theDrafting Committee.

68. Mr. FLEISCHHAUER (United Nations) saidthat he could have seen some merit in the proposals todelete subparagraph 4 (b) had the Conference beenstarting from scratch to draft provisions to regulatetreaty-making by and with international organizations.It was, however, doing so against a background of someforty years of such treaty-making, and during thoseyears a practice had been formally established whichwas reflected in subparagraph 4 (b). That practice wasin full harmony with the constituent instruments of theinternational organizations concerned and with theirpurposes and principles. In many cases it had grown upas a result of the need to conclude standard agreementsexpeditiously. Certain types of agreement concludedwithout the production of full powers were known tothe United Nations. They included, for instance,90 standard technical assistance agreements concludedby the United Nations Development Programme, andin the 1950s a number of Special Fund agreementswhich had been concluded with many of the countrieswhose delegations had spoken for the deletion of the

subparagraph. The list included assistance agreementsconcluded by the United Nations Children's Fund aswell as agreements dealing with the organization ofUnited Nations seminars and workshops. If, therefore,the draft convention was to reflect current practice,subparagraph 4 (b) should be retained as drafted.69. With regard to powers and full powers, he hadalready voiced doubts about the advisability of a dis-tinction between the two, and he would ask the ExpertConsultant whether the Commission had consideredhow such a distinction would work in practice. As-suming, for example, that the distinction provided forunder the draft articles was adopted, and assuming thata delegation to a conference submitted a power termedfull powers, would that power be rejected or recog-nized?70. Mr. ABDEL RAHMAN (Sudan) said that hisdelegation had not been persuaded by the arguments infavour of many of the amendments to the draft article.With regard to the Japanese-United Kingdom amend-ment in particular, he doubted whether the introductionof the notion of intention was warranted and preferredthe existing draft for the reasons given in the Commis-sion's commentary. His delegation would, however,favour the deletion of subparagraph 2 (e) proposed byFrance and the Soviet Union, since that would be con-sistent with practice in his country.71. Mr. POEGGEL (German Democratic Republic)said his delegation was in general agreement with thesubstance of most of article 7, but thought the articleshould perhaps be redrafted to bring it closer to the textof the 1969 Vienna Convention.72. His delegation supported the Soviet Union pro-posal to delete subparagraphs 2 (e) and 4 (b).73. His delegation sympathized with the Chineseproposal to eliminate the distinction between "fullpowers" and "powers", since it was difficult to dif-ferentiate between the two terms in the German lan-guage, but he understood the Commission's intention inmaking such a distinction. His delegation could acceptthe existing draft on that point. An alternative solutionmight be the UNESCO representative's proposal forthe use of a different term.74. He considered that the Austrian proposal to re-place the words "heads of delegations of States" by thewords "representatives accredited by States" in sub-paragraph 2 (b) was inadvisable, since it extended thecategory of persons not required to produce full pow-ers. On the other hand, he welcomed the proposal in thesecond part of the Austrian amendment to replace thewords in paragraph 2 (c) "to an organ of an internationalorganization" by the words "to an international organ-ization or one of its organs'', and the words'' within thatorganization" by the words "in that organization ororgan", since the change tended to stress the organiza-tion as a whole rather than its individual organs.

75. His delegation could not accept the first part of theJapanese-United Kingdom amendment, and althoughthe second part appeared to have merit, he preferredthe Soviet amendment.76. Mr. FOROUTAN (Islamic Republic of Iran) con-sidered that a distinction should be made between the


representation of States and that of international organ-izations when concluding a treaty. To give full powersto representatives of international organizations mightsuggest that those representatives enjoyed unlimitedpowers which the organizations themselves did notenjoy. Basically his delegation endorsed the presentdraft, although it favoured the Austrian amendmentsince other representatives were accredited in addi-tion to heads of organizations. He opposed the deletionof subparagraph 4 (b). The result might be a situa-tion where international organizations were required toproduce full powers on every occasion, which mightwell cause difficulty. His delegation supported theproposals by France and the Soviet Union to deletesubparagraph 2 (e), since heads of mission should al-ways enjoy full powers in any undertaking. His del-egation did not support the Chinese amendment orthe Japanese-United Kingdom amendment. The Cubanamendment appeared to be close to the Commission'sdraft, and he would support its submission to theDrafting Committee.77. Mr. CASTROVIEJO (Spain), speaking on a pointof order, asked whether, in accordance with rule 18 ofthe rules of procedure, the Expert Consultant shouldnot have been called upon to answer the question putby the United Nations representative immediately fol-lowing the question. His delegation would be grateful ifthe question could be clarified.78. The CHAIRMAN invited the Expert Consultantto answer the question. In accordance with his practiceat earlier meetings, he had been waiting for furtherrequests for clarification so that they could be dealtwith together.79. Mr. REUTER (Expert Consultant) said that theUnited Nations representative had asked what the sit-uation would be if the "powers" submitted by an inter-national organization, the United Nations, for example,in accreditation of its representative were described inthe credentials as "full powers". If the United Nationswas neither a party to the proposed convention nordirectly bound by it, the Organization would have theright to assign whatever title it wished to the documentof accreditation. Otherwise there would be two docu-ments. One would be the document of accreditationgiving "full powers" to the representative. The secondwould be a letter explaining to the other parties or theConference that the term "full powers" was, for thepurposes of that particular act, used as the equivalent of"powers" as contained in article 7 of the convention.

80. Mr. MONNIER (Switzerland) said that his del-egation supported the Austrian amendment, since theCommission's commentary was neither convincingnor accurate. He also supported the elimination of thedistinction between "full powers" and "powers" forthree reasons. First, as the German Democratic Repub-lic representative had pointed out, the distinction be-tween the two terms could not easily be made in theGerman language, which was sufficient reason in itselfto avoid making the distinction. Secondly, as theExpert Consultant had said, the expression "fullpowers" was a traditional one which served as a labelfor the powers or authority required for specific acts;but in no sense did the term "full" have literal meaning.

Thirdly, if it had been the general practice to distinguishbetween powers there would have been a justificationin the draft convention for making such a distinction,but that was not in fact the case. His delegation there-fore supported the Chinese amendment.81. His delegation was in favour of the first partof the amendment proposed by Japan and the UnitedKingdom and believe that the "intention" of the par-ties was relevant. Finally, his delegation also supportedthe amendments to subparagraphs 2 (e) proposed byFrance and by the Soviet Union, since there was nogeneral reason to give permanent missions to inter-national organizations special privileges greater thanthose accorded to bilateral missions.82. The CHAIRMAN said that it was his impressionthat as a result of the division of opinion on the ter-minological distinction between "full powers" and"powers" a vote would be needed. A compromiseseemed unlikely. He accordingly requested delegationsnot to raise the issue again unless they had new ar-guments to put forward.83. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that the distinction between "full powers"and "powers" was intended to emphasize that Stateshad powers in the broadest sense in regard to the adop-tion of treaties or in any other matter, whereas inter-national organizations were limited by their constituentinstruments. His view, based on his experience as amember of the Credentials Committee of the Inter-national Atomic Energy Agency, was that the membersof any credentials committee would be concerned lesswith the form of the credentials presented than with theunderlying substance. The content of the powers wasthe basic point, not what they were called.

84. The deletion of subparagraph 4 (b) proposed byhis delegation would permit any person, and not onlythe Secretary-General of an international organization,to act without powers. He saw no loss of prestige tothe Secretary-General if he were required to producepowers, which in any case would not be drawn up byhimself but by an organ of the international organ-ization.

85. With regard to the supposed difficulty of having toproduce powers in respect of agreements contained inletters or notes, many treaties covered by the 1969Vienna Convention were concluded by exchange ofletters, for which powers had been drawn up by Statesin each instance. He saw no reason why internationalorganizations could not do the same. On the other hand,if the Secretary-General alone signed an agreementwith a State member of an organization and failedto inform the other States members or organs of theinternational organization, the latter would be un-aware of the treaty. It was therefore appropriate thatthe Secretary-General should be required to producepowers, and not be automatically and ex officioexempt. The subparagraph should be deleted.

86. Mr. VIGNES (World Health Organization) saidthat the representatives of the Council of Europe andthe United Nations had presented the basic argumentsagainst the deletion of subparagraph 4 (b). For his or-ganization, the subparagraph's deletion would create


practical difficulties, since the organization's sovereignorgan responsible for conferring powers met but rarely.That deletion would also create an illogical situation,certain parties being dispensed from a formality whileothers were obliged to adhere to it. It would also beutterly contrary to established international practice.He therefore supported the solution proposed in thepresent draft.87. Mr. BARRETO (Portugal) supported the Austrianamendment and favoured the deletion of subpara-graph 2 (e), as proposed by France and the SovietUnion. He agreed that subparagraph 1 (b) should incor-porate the notion of "intention", and accordingly sup-ported the first part of the amendment proposed byJapan and the United Kingdom. He also supported thecombination of paragraphs 3 and 4 proposed in thatjoint amendment.88. Mr. VAN TONDER (Lesotho) hoped there woujdbe no need for a vote on the question of "full powers"and "powers". His delegation supported the amend-ment proposed by China, since it considered that thedistinction between "full powers" and "powers" waslegally meaningless. His delegation also supported thejoint Japanese-United Kingdom amendment, since theact of adopting a text was an executive act requiring"intention" to be clearly manifested, not merely in-ferred. His delegation saw subparagraph 2 (e) as a re-statement of existing practice and believed that itshould not be deleted.89. Mr. HARDY (European Economic Community)said that the point of article 7 was to provide for therepresentative quality of the person empowered to per-form official acts in relation to the treaty. The questionof official authorization was a separate question fromthe organizations's capacity to conclude treaties, andthere was no difference of substance between Statesand international organizations in regard to officialrepresentative quality.

90. He believed the proposals of China and of Japanand the United Kingdom had considerable merit andwere in accord with established practice. The instru-ments issued by the EEC were the appropriate fullpowers. It would simplify the Conference's task andmake the future application of the draft articles easier ifone term were used.91. He believed the deletion of subparagraph 4 (b)would be undesirable for the reasons stated by theCouncil of Europe and the United Nations represen-tatives.92. By way of explanation of EEC treaty practice, hestated that, in the case of the EEC, treaties were con-cluded by a formal act of the Council of Ministers. Fullpowers were issued to the person or persons authorizedto deposit the act expressing the consent of the Com-munity to be bound by the treaty.93. Regarding the reference to "competent organs"in subparagraph 4 {b), it was his delegation's under-standing that it was for the organization itself to deter-mine which were its competent organs and their roles.This was an internal matter. In the framework of theEEC, the organs principally concerned in the treaty-making process were the Commission and the Council.The Commission alone was competent to negotiate in-ternational agreements. The Council alone was com-petent to take the formal decision to conclude, on thebasis of a proposal by the Commission. Other organsmight also be involved in the EEC treaty-making pro-cess, by virtue either of the constituent instrument or ofestablished practice; this was notably the case withregard to the European Parliament.94. His comments also applied to all the other articleswhere the expression "competent organ" appeared,namely, article 2, subparagraph 1 (c bis), article 20,paragraph 3, and article 45, subparagraph 2 (b).


8th meetingTuesday, 25 February 1986, at 3.10 p.m.





Article 7 (Full powers and powers) {continued)

1. Mr. HAMID (Indonesia) said that his delegationhad no strong feelings about distinction between pow-

ers and full powers being removed, as proposed in theChinese amendment (A/CONF. 129/C.l/L. 16). It fullysupported the introduction of the notion of intentionsuggested by the United Kingdom and Japan in doc-ument A/CONF. 129/C.1/L.26. It was not in favourof deleting subparagraph 4 (b), but could acceptthe proposals made by Austria (A/CONF. 129/C. 1/L.4).His delegation fully supported proposals by France(A/CONF. 129/C. 1/L.20) and the Soviet Union (A/CONF. 129/C. 1/L.29) to delete subparagraph 2 {e) forthe reasons given by the sponsors.

2. Mr. LUKASIK (Poland) said that, in the discus-sion of article 2, subparagraphs 1 (c) and 1 (c bis), hisdelegation had stated (2nd meeting) its preference formaintaining the International Law Commission's dis-


tinction between "powers" and "full powers" for thereasons given in paragraph (10) of the commentary tothat article (see A/CONF. 129/4). It shared the viewthat it was inappropriate to use the expression "fullpowers" in the case of an organization, since the ca-pacity of such a body to bind itself internationally wasalways of a secondary nature, and thus never unlimitedas was that of sovereign States.3. His delegation was in favour of introducing intoparagraph 1 the notion of intention, which appeared inarticle 7 of the 1969 Vienna Convention on the Law ofTreaties.' The simplest proposal put forward to achievethat was the change suggested by the Soviet Union inparagraph 2 of document A/CONF.129/C.1/L.29, buthis delegation had no objection to the Cuban proposal(A/CONF.129/C.1/L.25). Nor did it object to the jointproposal by Japan and the United Kingdom, apart fromthe fact that it saw no reason to insert in subpara-graph 1 {b) a reference to international organizations,since paragraph 1 dealt with States only.4. Poland supported Austria's proposal and also theproposals to delete subparagraph 2 (e). There seemed tobe no reason to differentiate between heads of bilateraland multilateral missions; moreover, the provision inthat subparagraph conflicted with Poland's constitu-tional law.5. His delegation supported the idea of introducingthe notion of intention into paragraph 3, as proposed bythe Soviet Union and Cuba. To some extent it alsoagreed with the idea underlying paragraph 2 of theJapanese and United Kingdom proposal, but it couldnot approve the formulation those delegations sug-gested since it would conflict with the proposal to deletesubparagraph 4 (b). The idea of merging paragraphs 3and 4 would be acceptable only if it could be reconciledwith the suggestion to delete subparagraph 4 (b), but atpresent that was not feasible. The point about thatsubparagraph was that, while a treaty could be nego-tiated only by physical persons, the final expressionof consent by international organizations to be boundby a treaty could be made by a collegiate intergov-ernmental organ of the organization through the adop-tion of an appropriate decision, thus eliminating theneed for a physical person to act as an intermediarybetween the States concerned and the internationalorganization except in respect of the physical transmis-sion of the will of the organization. While, therefore,subparagraph 3 (b) was essential, subparagraph 4 (b)was not. However, if it was the wish of the majority toretain subparagraph 4 (b), his delegation would like thetext to use the verb "to communicate", which impliedthat consent could be given by an organ, instead of theverb "to express".

6. Mr. C AMINOS (Organization of American States)said that, for the reasons stated by speakers at theprevious meeting, among them the representatives ofAustria and the United Nations, his organization was infavour of retaining subparagraph 4 (b) since it reflectedthe uniform practice of the Organization, whose origins


went back almost a century. At the regional level, theOrganization's experience of concluding treaties wassimilar to that of the United Nations at world level. If,therefore, one of the essential tasks of the Conferencewas to codify existing customary international law,subparagraph 4 (b) ought to go into the draft conven-tion. His organization supported the Chinese proposalto remove the distinction between "powers" and "fullpowers".7. Mr. HERRON (Australia) said that in essence arti-cle 7 was simpler than article 7 of the 1969 ViennaConvention. The tendency to avoid subjective notionsin treaty practice might partly explain the omission of areference to intention from the International Law Com-mission's draft. That was acceptable, but his delegationcould also agree to the restoration of some of the ter-minology and substance of the 1969 Vienna Conventionalong the lines proposed by Austria and by Japan andthe United Kingdom. If a reference to intention wasrestored, it should be the joint intention of the partiesconcerned, as proposed by Japan and the United King-dom, rather than the unilateral intention of a singleState, which the Cuban proposal recommended. Hisdelegation fully understood the reasons why the Com-mission had maintained the distinction between powersand full powers in the draft articles, but it would preferit to be eliminated because it was artificial rather thanfunctional and could be confusing.

8. His delegation could accept the deletion of sub-paragraph 2 (e). Paragraphs 3 and 4 should emphasizethe practice of organizations in adopting or authenti-cating the text of a treaty and in being represented forthe purpose of expressing their intention to be boundby a treaty. In his region there was a fast-developingbody of regional treaty practice whose procedures werecharacterized by a large degree of informality, so muchso that it had become known as the "Pacific way". Hisdelegation would like the draft convention to providescope for procedures of that kind to expand, particu-larly in the case of organizations. It therefore opposedthe proposals to delete subparagraph 4 (b) and ap-proved the simple drafting and uniform substance of theformulation of paragraphs 3 and 4 proposed by Japanand the United Kingdom.

9. Mr. ROSENSTOCK (United States of America)welcomed the general support being expressed for theInternational Law Commission's text. A number ofdelegations had proposed drafting amendments which,on the whole, would improve it. His delegation sup-ported the Austrian proposal, which brought the textcloser to that of article 7 of the 1969 Vienna Conven-tion. The impressive evidence adduced by represen-tatives of international organizations about their prac-tice in respect of the expression of consent to be boundby a treaty suggested that the Commission had rightlyadopted subparagraph 4 (b). Accordingly, his delega-tion could not support the proposals to delete it.

10. His Government's practice as a depositary tosome extent led it to support the Chinese proposal. Oneof the conventions for which the United States wasa depositary was the Food Aid Convention, 1980, towhich both States and international organizationsmight become parties. Having had the duty of exa-


mining documents submitted in regard to that Con-vention by representatives of Governments and of aninternational organization, he had taken a practical ap-proach similar to that described by the representative ofthe Soviet Union at the previous meeting: he had simplylooked at them to see whether the person presenting thedocument was authorized to act on behalf of the Stateor organization which he or she purported to represent,because it was the substance of the document ratherthan its title which determined its legal effect. That wastrue in domestic law too.

11. His delegation also supported the proposals todelete subparagraph 2 (e), which did not represent cus-tomary practice. The proposal by Japan and the UnitedKingdom to merge articles 3 and 4 brought the textcloser to the 1969 Vienna Convention, and thereforehad the full support of his delegation.12. Mr. SKIBSTED (Denmark) said that the Comis-sion's formulation of subparagraphs 3 (b) and 4 (b)was appropriate, both on account of its flexibility andbecause the competence of administrative officers ofinternational organizations to conclude treaties oftenderived from the practice of the organization in ques-tion and not from explicit full powers. His delegationtherefore opposed the proposals to delete subpara-graph 4 (b). China's proposal to eliminate the distinc-tion between powers and full powers was well foundedand, in the light of the observations made by the ExpertConsultant at the previous meeting, should be sup-ported. The proposal by Japan and the United Kingdomto combine articles 3 and 4 was equally acceptable to hisdelegation. It also approved Austria's proposal. Pro-posals which were really drafting ones should of coursebe referred to the Drafting Committee. Noting whatLesotho had said at the previous meeting about sub-paragraph 2 (<?)- his delegation would welcome anexplanation by the Expert Consultant of the back-ground to its inclusion in the draft and some indicationwhether or not it should be deleted.

13. Mrs. THAKORE (India) said that her delegationapproved the Commission's wording of subpara-graphs 2 (b) and 2 (c); it was more precise than thewording proposed by Austria, which reverted to thelanguage of the 1969 Vienna Convention, and it was inkeeping with the 1975 Vienna Convention on the Rep-resentation of States in Their Relations with Inter-national Organizations of a Universal Character.2 Herdelegation could not accept the proposals to deletesubparagraph 4 (b). The explanation given by theExpert Consultant and the numerous examples cited bythe representative of the United Nations at the previousmeeting had convinced it of the usefulness of retainingthat subparagraph as it stood, since it conformed fullyto international practice. As the representatives of theWorld Health Organization and other international or-ganizations had stated at that meeting, its deletionwould create difficulties. The representative of the In-ternational Atomic Energy Agency had suggested, the

2 Official Records of the United Nations Conference onthe Representation of States in Their Relations with InternationalOrganizations, vol. II (United Nations publication, SalesNo. E.75.V.12), p. 207.

replacement of the words "the practice of the com-petent organ of the organization" by a broader expres-sion such as "the relevant rules of the organization"(see A/CONF. 129/5, p. 126), but her delegation pre-ferred the existing wording, which was more specific.14. Her delegation had no strong views about theChinese proposal to use the term "full powers" forboth the representatives of States and those of interna-tional organizations, or on that aspect of the amend-ment proposed by Japan and the United Kingdom. Itcould not support the proposals to delete subpara-graph 2 (e). It considered that the heads of permanentmissions to international organizations should be com-petent, either through practice or other circumstances,only to sign ad referendum the text of a treaty betweenthe accrediting States and the organization concerned.15. With regard to the Japanese and United Kingdomproposal to reintroduce the notion of intention em-bodied in the 1969 Vienna Convention, and to combineparagraphs 3 and 4, there were no good reasons why theConference should not follow the more recent rule onthe subject in the 1975 Vienna Convention on the Rep-resentation of States. Her delegation therefore pre-ferred the Commission's text, which might be improvedwhere necessary by drafting changes.

16. Mr. RODRIGUEZ CEDENO (Venezuela) saidthat his delegation was in favour of maintaining thedistinction between the "full powers" of representa-tives of States and the "appropriate powers" of repre-sentatives of international organizations. A real dif-ference existed between the two types of representativeon account of the differing capacities of the subjects ofinternational law which they represented. His delega-tion therefore opposed China's proposal, which wouldeliminate that distinction.17. Subparagraph 4 (b), the deletion of which wasproposed by a number of delegations, was unneces-sarily wide-ranging; but his own delegation believedthat to limit the action of representatives of interna-tional organizations by deleting it might hinder the func-tioning of the organizations. The Conference shouldseek formulation for the subparagraph which took ac-count of the practice and objectives of the organizationconcerned and offered a moderate degree of flexibility.His delegation had no difficulty in accepting Cuba'sproposal, which would introduce into the draft the no-tion of intention contained in the 1969 Vienna Con-vention.

18. Mr. NEGREIROS (Peru) said that some mattersdealt with in article 7 appeared to relate to formal ques-tions but in fact involved matters of substance. Statesand international organizations could not really be con-sidered as comparable entities from the point of view oftheir characteristics, rules, functions, structure, rep-resentation and powers. States were well defined en-tities; international organizations were more abstractand possessed a rather imprecise and still evolvingcapacity. It was therefore appropriate to distinguishbetween States and international organizations in re-gard to functions, rules, prerogatives, procedures andthe capacities of their representatives, as problemsmight arise with general authorizations issued in a rushto establish an hypothetical equivalence between inter-


national organizations and States. His delegation wastherefore in favour of maintaining the Commission'sdistinction between full powers and powers.19. It supported the proposals of Mexico and Tunisiato delete subparagraph 4 (b), as well as the SovietUnion's proposed new wording for subparagraphs 1 (b)and 3 (b).20. Mr. JESUS (Cape Verde) said that his delega-tion wished to reaffirm the position it had expressed inthe discussion on article 2 (2nd meeting). The Com-mission's distinction between "full powers" and"powers" was valid, and unless there was a majordifference of views on the matter or a major gap to befilled, it should be retained. What mattered was thecontent of the article, not its title.21. As to the substantive provisions of article 7, hisdelegation could support the amendment submitted byJapan and the United Kingdom in regard to subpara-graph 1 (b). It also approved the Austrian amendment tosubparagraph 2 (b) for the reason given by the sponsorof the proposal at the previous meeting.22. Subparagraph 2 (c) dealt with bilateral agreementssigned by States and an international organization: insuch cases there was no precedent for a representativeother than the head of a permanent mission signing suchan agreement on behalf of his country. It would there-fore be better to adhere to the Commission's wordingfor subparagraph 2 (c) and to reject the Austrian sugges-tion for it.23. As a justification for the French proposal to deletesubparagraph 2 (e), it had been maintained that it wasnot the practice of the international community to grantthe heads of permanent missions the authority to sign atreaty without having to produce full powers. That viewseemed to be contradicted by article 12, paragraph 2, ofthe 1975 Convention on the Representation of States.Since that Convention dealt specifically with the ques-tion of representation, it should not be derogated fromin the draft convention. However, if the question wasunderstood to have been taken care of by subpara-graph 1 (a) of the article, his delegation would notoppose the deletion of subparagraph 2 (e).24. His delegation could support the rewording ofparagraphs 3 and 4 proposed by Japan and the UnitedKingdom, but not the proposals to delete subpara-graph 4 (b). The Japanese and United Kingdom pro-posal modified subparagraph 4 (b) in a manner whichshould prove acceptable.25. Mr. KANDIE (Kenya) said that it was clear thatthe various amendments proposed did not fundamen-tally alter article 7. His delegation would therefore pre-fer to keep to the text drafted by the Commission. Afterreading paragraph (9) of the Commission's commentaryand listening to the Expert Consultant's explanation atthe previous meeting concerning "powers" and "fullpowers", he had concluded that the distinction be-tween those terms should be maintained, but not at theexpense of flexibility. His delegation approved theproposals to delete subparagraph 2 (e), since it believedthat heads of permanent missions should not have theright to sign treaties without having to produce fullpowers. It opposed the proposals to delete subpara-

graph 4 (b) for the reasons given by the representativesof Nigeria, Austria and the Council of Europe.26. His delegation agreed with the proposal by Japanand the United Kingdom to introduce the principle ofintention into subparagraph 1 (b), in keeping with the1969 Convention, but it would find difficulty in ap-proving their suggestion to combine paragraphs 3 and 4.27. Mr. GUNEY (Turkey) said that the proliferationof amendments to article 7 showed that the Interna-tional Law Commission's text could be improved. Hisdelegation supported the Austrian amendment and theChinese proposal to eliminate references to "powers"as distinguished from "full powers": there was no needto depart from the precedent set by article 7 of the 1969Convention in that regard. His delegation could supportthe proposals made by France and the Soviet Union todelete subparagraph 2 (e). The Cuban amendment in-troduced a unilateral concept of intention which, hefelt, would give rise to difficulties. The proposal putforward by Japan and the United Kingdom was moresatisfactory, in that it was based on the concept of jointintention.

28. Mr. CASTROVIEJO (Spain) said that the ExpertConsultant's explanation concerning the distinction be-tween "full powers" and "powers" and the argumentsput forward during the discussion had persuaded hisdelegation that the distinction did not have any realcontent and did not justify the departure which it rep-resented from the 1969 Convention. The amendmentproposed by China should therefore be adopted.

29. With regard to subparagraphs 2 (b) and (c), heconsidered that the change proposed by Austria wouldbenefit practice in treaty-making relations betweenStates and international organizations and would notaffect either validity of representation or capacity in thematter of adoption of texts. His delegation supportedthe proposals to delete subparagraph 2 (e). As to thedeletion of subparagraph 4 (b), the representatives ofAustria and the World Health Organization had givenpertinent examples of the difficulties which that wouldcause. The proposal submitted by Japan and the UnitedKingdom was a worthwhile attempt to obviate theproblems posed by the existing text and might be usedby the Drafting Committee as a basis for a generallyacceptable wording.

30. Mr. TEPAVICHAROV (Bulgaria) said that arti-cle 7 as drafted by the International Law Commission,with its distinction between "full powers" for the rep-resentative of a State and "powers" for the represen-tative of an international organization, was acceptableto his delegation. The distinction, although it could notbe drawn in all languages, served to emphasize thedifference between the legal basis of the treaty-makingcapacity of States on the one hand and that of interna-tional organizations on the other. His delegation sharedthe view of the Expert Consultant that the distinctiondid not relate to the mandates of representatives.

31. He had noted with satisfaction that several of theproposals before the Committee were intended to alignthe text of the draft convention more closely with thatof article 7 of the 1969 Vienna Convention or article 12of the 1975 Vienna Convention. There must, however,


be a slight difference in the wording of the three conven-tions in one respect: while article 7, subparagraph 1 (a),of the 1969 Convention spoke of "appropriate fullpowers", article 12, paragraph 1, of the 1975 Con-vention referred to "full powers", and in his opinion itwas the latter term which should be used for States inthe draft convention as well. But his delegation wouldinsist on the use of the word "appropriate" in sub-paragraph 4 (a). In the light of the explanation given atthe previous meeting by the representative of Austria,his delegation could support the amendment submittedby the Austrian delegation.

32. The proposals to delete subparagraph 4 (b) wereacceptable, since the Commission's wording of theprovision was too broad and did not fully reflect estab-lished practice. Neither the representative of a Statenor the representative of an international organizationwas acting as an individual when expressing consent tobe bound by a treaty; he was called a representativebecause he acted on behalf of an entity, which definedthe scope and purpose of his representation. Normally,in the case of an international organization the chiefadministrative officer, when negotiating a treaty with aState, either fulfilled a duty imposed on him by the rulesof the organization or executed a decision taken by acompetent organ of that organization with the consentof its members. There was thus no difficulty in requiringa chief administrative officer of an organization topresent full powers: the legal effect of such a documentwas to certify that the representative of the interna-tional organization had been duly authorized by thecompetent organs, in conformity with the rules of thatorganization, to enter into a contractual relationship orto consent to a treaty. The existing wording of sub-paragraph 4 (b) was therefore unacceptable to his del-egation.

33. He could support the proposals to delete sub-paragraph 2 (e), since the text proposed by the Commis-sion introduced an innovation which was not based onthe generally accepted practice, namely, that the headof a permanent mission normally produced full powers.It should be left to each State to determine the rule;under Bulgarian law full powers were required for thepurpose contemplated in subparagraph 2 (e).

34. The proposals by Japan and the United Kingdomand by Cuba and the proposal in paragraph 2 of theSoviet Union amendment were of a similar nature. TheCuban amendment was based on unilateral intention,and that would enable his delegation to support it.There was no ground for introducing the notion of jointintention into subparagraphs 1 (b) and 3 (b) as proposedby the United Kingdom and Japan. Representation wasa matter of sovereignty or discretionary power gov-erned by the internal law of the State or the rules of theorganization concerned. The Soviet proposal to replacethe word "considered" in those subparagraphs by thewords "intended to be considered" would improve thetext without making major changes in it.

35. The problems raised by article 7 were not of adrafting nature, and consequently the article should notbe referred to the Drafting Committee without clearguidelines from the Committee of the Whole.

36. Mr. BERNAL (Mexico) said that his delegationcould accept the Commission's text of article 7 in thelight of the Expert Consultant's explanation of the dis-tinction between "full powers" and "powers". At thesame time, he welcomed the proposals for amendingsubparagraphs 1 (b), 2 (b) and 2 (c). It might of course bepossible to eliminate subparagraph 2 (c) if the majorityof the Conference agreed that heads of permanent mis-sions should be included in the category of those rep-resentatives required to produce full powers.

37. His delegation's proposal that subparagraph 4 (b)should be deleted (A/CONF. 129/C. 1/L.8) did not over-look the practice of international organizations, but wasbased on the view that such practice was not yet acustomary norm of international law. The proposal tofuse paragraphs 3 and 4 as currently drafted, as ad-vocated by Japan and the United Kingdom, would notbe acceptable to his delegation. A possible way of ca-tering for the practice of organizations might be a com-promise: to delete the subparagraph but to introduceinto the draft article a provision along the lines sugges-ted at the previous meeting by the Egyptian represen-tative (para. 60) and by the Austrian representative inhis second statement (para. 43).

38. Mr. MBAYE (Senegal) said that his delegationopposed the Chinese proposal. The distinction between"full powers" for the representatives of States and"powers" for those of international organizationsshould be maintained; it in no way lessened the powersof those representatives or hampered organizations intheir relations with other subjects of international law.Regarding the changes proposed by Austria, his delega-tion would prefer to retain the term "heads of del-egations of States". The functions of the head of adelegation were different from those of its other mem-bers, and the exemption from the production of fullpowers should not be extended to all the members of adelegation. His delegation could, however, accept theproposed substitution of the words "to an internationalorganization or one of its organs" for the words "to anorgan of an international organization".

39. His delegation had no objection in principle to thedeletion of subparagraph 4 (b), but the Committee musttake account of the fact that international organiza-tions, particularly those of a universal character, wereincreasingly active in international life. It must nothamper their work by approving a requirement thattheir representatives should produce formal powers inall circumstances. On the whole, therefore, his delega-tion was in favour of the retention of the subparagraph.

40. It could support the joint amendment by theUnited Kingdom and Japan to combine paragraphs 3and 4. With regard to their proposed wording for sub-paragraph 1 (b), it would be better to follow article 7 ofthe 1969 Vienna Convention more closely. He thereforesuggested that the words "the intention of the Statesand international organizations concerned" should bereplaced by the words "the practice of the States andinternational organizations concerned", which weremore objective.

41. His delegation approved the proposal of France todelete subparagraph 2 (e).


42. Mr. ALMOD6VAR (Cuba) said that the Commis-sion's wording for article 7 seemed more precise thanthat proposed by Austria, but his delegation could ac-cept the latter if delegations as a whole favoured it.43. Regarding the proposals to delete subpara-graph 4 (b), Cuba's position was that international or-ganizations were the creation of States and should betreated as such. The article should therefore be wordedso as to ensure that the person or representative con-cerned would be required to present appropriate doc-uments.44. As to the amendment proposed by China, his del-egation had listened with interest to the explanationby the Expert Consultant at the previous meeting andwas prepared to accept either the wording proposedby the International Law Commission or the Chineseproposal.

45. There were a number of similarities between theproposal by the United Kingdom and Japan and hisdelegation's own proposal. The latter conveyed thesame idea as paragraph 2 of the proposal by the SovietUnion. His delegation supported the proposals to de-lete subparagraph 2 (e), but if the subparagraph wasretained it would prefer the wording of its own proposalfor subparagraphs 1 (b) and 3 (b) to that of the SovietUnion proposal.

46. Mr. ROZOQI (Kuwait) said that his delegationfound it difficult to accept subparagraphs 2 (e) and 4 (Jb)as drafted by the International Law Commission be-cause they were ambiguous. It would therefore supportthe proposals to delete both subparagraphs. It did notthink it was necessary to establish a distinction between"full powers" and "powers", and it could thereforesupport the Chinese amendment.

47. Mr. KRUMREI (Federal Republic of Germany)said that the question of the distinction between"powers" and "full powers" might be left aside until adecision was taken on article 2. In his delegation's viewthere was no difference of substance between the twoterms, and it therefore supported the Chinese amend-ment. Representatives of international organizationshad said that the formulation of subparagraph 4 (b)described established practice, which the draft conven-tion should not limit, either for the present or for thefuture. The proposal to merge paragraphs 3 and 4 of thearticle was an excellent one, and his delegation wouldsupport it.

48. Mr. ROCHE (Food and Agriculture Organizationof the United Nations), commenting on the proposal todelete subparagraph 4 (b), said the Committee shouldbear in mind that many international organizations con-cluded a considerable number of instruments everyyear that would be covered by the draft articles. Thegreat majority of those instruments were concluded inaccordance with procedures of a relatively informaland, above all, practical character. The practice of hisorganization over its more than 40 years of existencehad been not to issue full treaty-signing powers either toits executive head, the Director-General, or to officialsto whom the function had been delegated. Nor were fullpowers produced by the States or organizations thatwere parties to the treaties concluded with it. The del-

etion of the subparagraph would contradict that prac-tice, which had stood the test of time. Moreover, torequire "appropriate powers" in subparagraph 4 (a)would be to introduce an onerous and seemingly un-necessary formality that would hinder both organiza-tions and States dealing with them. If the signatories ofall treaties which provided for assistance to his organ-ization's member countries were to require full powers,delay in concluding them would be inevitable. In casesof emergency assistance to developing countries, forexample, the formality would be both impractical andcounterproductive. His organization therefore urgedthe Committee to view the proposal to delete subpara-raph 4 (b) in the light of the effect it would have on theefficacy of international organizations. The retention ofthe subparagraph would not, of course, mean that or-ganizations would never have to produce full powers; insome cases, such as the conclusion of a very formalinstrument or compliance with the rules of procedure ofa particular conference, they might well be required asan exception to the general rule. He expressed hisorganization's support for the many delegations thathad already supported the idea of deleting the distinc-tion between "full powers" and "powers".49. Mr. EIRIKSSON (Iceland) said that his delega-tion would support the Chinese proposal, the Austrianproposal and the proposals by France and the SovietUnion to delete subparagraph 2 (e). It also agreed withthe idea of incorporating the notion of intention in thedraft article, as recommended in the Japanese andUnited Kingdom proposal and in those of Cuba and theSoviet Union. The differences between those threeproposals might be resolved as a drafting matter. Hisdelegation regarded it as desirable that the articleshould refer to the intention of all the parties con-cerned. It favoured the retention of subparagraph 4 (b)in the form of the merger of paragraphs 3 and 4 pro-posed by Japan and the United Kingdom.50. Mr. HALTTUNEN (Finland) said that his del-egation could support the Austrian amendment, whichwould bring subparagraphs 2 (b) and 2 (c) of article 7into line with the corresponding article of the 1969Vienna Convention, but it would like the words "aninternational conference of States and international or-ganizations" to be used in subparagraph 2 (b). A de-cision on that point might be left to the Drafting Com-mittee.51. His delegation had doubts regarding the proposalto delete subparagraph 4 (b). The representative of theUnited Nations at the previous meeting had providedsome important information about the establishedtreaty-making practice of the most important and un-iversal of all intergovernmental organizations. In thelight of that, his delegation would prefer the subpara-graph to be retained in the form proposed by the Inter-national Law Commission.52. On the question of "full powers" and "powers",it felt some sympathy with the Chinese amendment.There was, in practice, no substantive difference be-tween the two terms, and the Finnish language, like theGerman, made no such distinction.53. The proposal of France and the Soviet Union todelete subparagraph 2 {e) was acceptable because sub-


paragraph 1 (b) covered the same point. The Japa-nese and United Kingdom amendment, which com-bined paragraphs 3 and 4, was also acceptable tohis delegation and would make the draft article morecompact.

54. Mr. RIPHAGEN (Netherlands) said it was notreally necessary to retain the distinction between "fullpowers" and "powers". Furthermore, the "powers",even of representatives of States, were never in fact"full".

55. There were some slight differences of wordingbetween article 7 of the 1969 Vienna Convention andthe International Law Commission's draft. Subpara-graph 1 (b) of the former contemplated both the practiceand the intention of the States concerned. The Commis-sion's draft was less clear in that respect, since it spokeof "practice" but did not specify the entities whosepractice was contemplated. The reference to "prac-tice" in subparagraph 4 (b) of the draft was linked onlywith "the competent organs of the organization" andwas thus one-sided.

56. In the Cuban proposal for subparagraph 3 (/>),both "practice" and "intention" related only to inter-national organizations. The Japanese and United King-dom amendment, on the other hand, was closer to theformulation in the 1969 Convention. That approachseemed preferable, since two sides were involved andeach should know that they were dealing with the rightperson. The circumstances were, of course, important;every negotiation had its own procedure. Both the 1969Vienna Convention and the Commission's draft arti-cle 7 offered flexibility in regard to that procedure, andthat characteristic should be preserved in the final text.

57. He could not agree that the difference between theamendment proposed by Cuba and the Japanese andUnited Kingdom proposal was merely one of drafting.He favoured the retention of subparagraph 4 (b) in themanner suggested in the latter proposal, which pro-vided the desired flexibility. His delegation thereforeapproved that proposal, as well as the changes pro-posed by Austria.

58. Mr. WANG Houli (China) said that he was gra-tified by the amount of support that had been expressedfor his delegation's amendment. The discussion hadmade it abundantly clear that there was no substan-tive difference between the terms "full powers" and"powers". The Committee need take no decision onthe matter until it reverted to article 2.

59. Regarding the other proposals, his delegationcould agree to the deletion of subparagraph 2 (<?) and tothe changes proposed by Austria.

60. Mr. SANG HOON CHO (Republic of Korea) saidthat his delegation would support the Austrian amend-ment for the practical reasons explained by thesponsor.

61. It was in favour of deleting subparagraph 2 (e),which covered the same ground as subparagraph 1 (b),but not subparagraph 4 (b), a provision which the rep-resentative of the United Nations had convinced himwas necessary.

62. The Japanese and United Kingdom proposal tocombine paragraphs 3 and 4 conveyed the contentof the International Law Commission's subpara-graph 4 (b) in an appropriate manner. His delegationsupported the deletion of the term "powers" recom-mended in that amendment and in the proposal byChina.63. Mr. REUTER (Expert Consultant) said he hadbeen asked to explain why the International Law Com-mission had inserted subparagraph 2 (d) in the draft.The Commission had not envisaged such a provision inits initial draft, but having regard to the text of the 1975Convention, it considered it advisable to suggest it toGovernments. If the Committee considered that it wasinappropriate to include subparagraph 2 (d) in the draftconvention, Governments could make it known thatsuch was their view, either for reasons which con-cerned only themselves or in respect of a particularorganization. The deletion of that subparagraph wouldleave open the possibility of certain practices beingadopted by virtue of the remainder of the paragraph.


Paragraph I

64. The CHAIRMAN said that the Conference haddecided that only paragraph 2 of article 9 required sub-stantive consideration by the Committee of the Whole.However, the World Bank had submitted an amend-ment to paragraph 1 of that article (A/CONF.129/C.1/L.23). Under rule 28, subparagraph 2 (a), of the rules ofprocedure, the Committee might decide, at the requestof a representative, to give substantive consideration toa particular article of the basic proposal that had beenreferred directly to the Drafting Committee.65. After a procedural discussion in whichMr. SCHRICKE (France), Mr. ROCHE (Food andAgriculture Organization of the United Nations) and SirJohn FREELAND (United Kingdom) took part, theCHAIRMAN suggested that the World Bank represen-tative should call attention to any changes he con-sidered desirable in article 9, paragraph 1, after theCommittee had established a definitive text for arti-cle 5, with which the paragraph was closely linked.

// was so decided.

Paragraph 266. Mr. WANG Houli (China), introducing theamendment in document A/CONF.129/C.1/L.17, saidthat international conferences in which internationalorganizations participated differed from those attendedby States only. Accordingly, the provision in para-graph 2, which placed international organizations on anequal footing with States in the matter of voting, mightnot always be suitable. That rule was not being appliedat the present Conference, for example, where onlyrepresentatives of States could vote. It was not advis-able to lay down inflexible rules on that subject. Admit-tedly, in paragraph (4) of its commentary the Inter-national Law Commission had disclaimed any intentionthat paragraph 2 should impair the autonomy of inter-national conferences in adopting their own rules ofprocedure or in filling any gaps in those rules, but his


delegation considered it was desirable to remove allambiguity on the subject.

67. Mr. FLEISCHHAUER (United Nations),speaking also on behalf of the Council of Europe, theFood and Agriculture Organization of the United Na-tions, the International Atomic Energy Agency, theInternational Civil Aviation Organization, the Organ-ization of American States, the United Nations Indus-trial Development Organization and the World HealthOrganization, introduced the amendment in documentA/CONF. 129/C. 1/L.22, which sought to extend the rulein paragraph 2 to conferences in which only interna-tional organizations participated. Such conferencesdealt with common institutional concerns, such as theinternational civil service, public information and tech-nical assistance. The sponsors of the amendment didnot share the view expressed by the International LawCommission in paragraph (3) of the commentary thatsuch a conference would fall under article 9, para-graph 1, so that it would have to adopt a treaty byunanimity and not by a two-thirds majority. There wasno need for the unanimity rule in that case, since nointernational organization could be bound without itsconsent merely by participating in the conference.

68. Mr. SCHRICKE (France), introducing the pro-posal in document A/CONF. 129/C. 1/L.28, said that,like the Chinese amendment, it aimed at making theparagraph a flexible provision which would meet allcases. It did not limit article 9, paragraph 2, to treatiesconcluded between States and international organiza-tions; the paragraph would apply to all treaties fallingwithin the scope of the draft articles. It thus would alsomeet the point raised by the representative of theUnited Nations, among others. By using the word "par-ticipants '', which covered both States and internationalorganizations, it did not prejudice any decision whichmight be taken about voting rights and it was applicablealso to conferences attended by international organiza-tions only. It was a matter of extending the scope ofparagraph 2 by demonstrating its flexibility. The pro-posals of the Soviet Union and Egypt, on the otherhand, limited that scope and thus could not enjoy thesupport of the French delegation.

69. Mr. NETCHAEV (Union of Soviet SocialistRepublics), introducing the proposal in documentA/CONF. 129/C. 1/L.30, said he did not agree that theFrench proposal would make the paragraph flexible; itproceeded from the premise that all conferences would

adhere to the rule suggested by France. Conferences inwhich only international organizations participated hadthe sovereign right to adopt the rules they wished. Thesame was true for conferences in which States par-ticipated. Each conference adopted rules of procedureto suit its subject-matter and objectives, as the presentConference had done. An attempt was being made toinnovate in international law in respect both of par-ticipation and voting. The Chinese representative hadput the matter in its proper perspective. Internationalorganizations did not possess rights equal to thoseof States. In a particular case, the number of Statescasting an affirmative vote might be less than two-thirdsof the entities present and voting, and there would thenbe a danger of international organizations imposingtheir will on sovereign States. That would be com-pletely incorrect. There had been no example in prac-tice of a large international conference in which Statesand international organizations had been placed on anequal footing; voting rights had always been confined toStates.

70. Mr. RAMADAN (Egypt), introducing the pro-posal in document A/CONF. 129/C. 1/L.31, said thatmost delegations attached importance to distinguishingbetween States and international organizations in thematter of concluding treaties. It was the distinctionbetween the creators and the created. States were sov-ereign; international organizations could not be placedon terms of equality with them with regard to voting,although organizations might express an opinion on thedrafting of texts. That position, which was reflectedin rule 34 of the rules of procedure of the present Con-ference, was the established practice of all internationallaw conferences. His delegation's proposal wouldmake the paragraph sufficiently flexible to cover allcases, since the paragraph would still contain the pro-viso "unless by the same majority, they shall decide toapply a different rule".71. With regard to the United Nations proposal, hefelt that a two-thirds majority rule on the adoption of atreaty at a conference of international organizationsdealing with technical matters would be inappropriate,since the text of the treaty would have to be applied byall the organizations concerned. If the representativesof international organizations insisted on that amend-ment, it could be included in the text of a separateparagraph.



9th meetingWednesday, 26 February 1986, at 10.15 a.m.




[Agenda item II] (continued)

Article 9 (Adoption of the text) (continued)

Paragraph 2 (continued)

1. Mr. POEGGEL (German Democratic Republic)had serious doubts about paragraph 2 of article 9. It washis understanding that the Conference had no mandateto dictate to future conferences in which internationalorganizations were particpants how they should adopttreaties. Of the interesting proposals submitted, he pre-ferred the Soviet Union amendment (A/CONF. 129/C. 1/L.30), under which the procedure for the adoption of atreaty would be agreed by the participants in the confer-ence concerned. The Chinese amendment (A/CONF. 129/C. 1/L. 17) had the disadvantage of paragraph 2 unchan-ged.2. Mr. LUKASIK (Poland) said that his delegationbelieved that paragraph 2 should be flexible. While allthe amendments submitted appeared to have the samegeneral purpose, his delegation greatly preferred theSoviet Union amendment, since it best served the ob-jective of flexibility.3. Mr. FOROUTAN (Islamic Republic of Iran) saidthat his delegation had difficulty in accepting the ideathat international organizations could participate in in-ternational conferences on an equal footing with States.International organizations could participate in con-sultations and deliberations, but decision-making wasthe prerogative of States. He could not support theFrench amendment (A/CONF. 129/C. 1/L.28), becauseit did not specify the type of treaty involved. Nor did itdeal with the main point, that international conferenceswere composed of States and that the participationof international organizations was secondary. In theamendment submitted by eight international organiza-tions (A/CONF. 129/C. 1/L.22) he could not support thedeletion proposed in point (a) for the reasons he hadalready stated. He had no objection to point (b), andin regard to point (c), he preferred the original text.He had no objection to the new paragraph 3 proposedby China, which would permit an international con-ference to adopt an alternative procedure if it wished.He supported the Soviet Union amendment for thesame reason. He also supported the Egyptian amend-

ment (A/CONF. 129/C. 1/L.31), which fully reflected hisdelegation's thinking.4. Mr. ROMAN (Romania) said that his delegationendorsed the International Law Commission's com-mentary to the article (see A/CONF. 129/4) and couldtherefore accept paragraph 2. He was unable to sup-port the French amendment and the eight-organizationamendment, which would basically change the contentof the article.

5. His delegation was attracted by the amendmentsproposed by the Soviet Union, China and Egypt. TheChinese and Soviet Union amendments were both con-cerned with the freedom of States to establish a dif-ferent procedure for the adoption of the text of a treaty.The Egyptian amendment went further, and deservedspecial attention. He believed that the Egyptian amend-ment could furnish an amended paragraph 2 and that theChinese and Soviet Union amendments could be com-bined in a new paragraph 3, thus providing a compre-hensive and balanced solution.

6. Mr. DUFEK (Czechoslovakia) considered that thetype and character of the treaty contemplated in para-graph 2 should be specified. A treaty might be betweenStates, or between States and international organiza-tions or even between international organizations only,and might be general or regional in character. The typeof international conference contemplated was also im-portant. In that connection, he agreed with the assump-tion in paragraph (1) of the International Law Commis-sion's commentary and believed that the internationalconference envisaged would be a relatively open andgeneral conference between States in which one ormore international organizations participated for thepurposes of adopting the text of a treaty between Statesand international organizations. His delegation wassympathetic to the Egyptian amendment, which recog-nized the role of governments while not ruling out theadoption of other rules for the adoption of treatiesbetween States and international organizations.

7. He noted that the French amendment and theamendment by eight international organizations bothprovided that where international organizations par-ticipated, a two-thirds majority of the States and inter-national organizations would be required for the adop-tion of the text of a treaty or of a different rule. Theadoption of the text of a treaty between internationalorganizations alone raised other difficulties. Para-graph 1 would presumably apply. A solution offeringthe needed flexibility was provided by the Soviet Unionamendment, which should satisfy everyone. The Chi-nese amendment would be acceptable for similarreasons.

8. Mr. AL-JUMARAD (Iraq) said that his delegationconsidered that international organizations should not


automatically have the right to vote in the matter of theadoption of treaties and could not therefore support theFrench amendment. He could accept the Chinese andSoviet Union amendments, because they were broadlybased and would enable each conference to decidewhether international organizations should vote or not.

9. Commenting on the Egyptian amendment, he poin-ted out that by voting in a conference in which Stateswere participants, international organizations mighttake positions in conflict with those of some Statesmembers of their own organization. That amendmentdid not give international organizations an establishedright to vote, but allowed for the possibility that theymight vote if two-thirds of the States present and votingso decided. His delegation favoured flexibility and ac-cordingly supported the amendment.

10. Mr. RASOOL (Pakistan) said that his delegationhad no difficulty with the draft article but welcomed anyattempt to improve it. He noted that, although all theamendments were directed towards increased flexibil-ity, some of them might result in over-rigidity. In thelight of the sponsor's introductory statement, the So-viet Union amendment might have that effect. TheEgyptian amendment also appeared to introduce somerigidity.

11. His delegation's preference was for the Chineseamendment, which increased flexibility without dis-turbing the Commission's text. The French amendmentalso attempted to increase flexibility. His delegationwas not opposed to the eight-organization amendment,which was designed to fill a gap in the text.

12. Mr. HORVATH (Hungary) agreed with the Inter-national Law Commission's view that paragraph 2should not be interpreted as impairing the autonomyof international conferences to adopt their own rulesof procedure. The Commission's text was not fullyappropriate where States and international organiza-tions participated in an international conference con-vened to adopt a treaty. The procedure proposed in theSoviet Union amendment took into account a variety ofpossibilities and offered a flexible solution. He sup-ported the amendment.

13. Mr. ECONOMIDES (Greece) took issue with thecontention that States as creators of international or-ganizations could not be treated in the same manner asthe international organizations they created. His del-egation agreed that States created international organ-izations. International organizations were created bythe will of States, and had only the special and limitedrights needed to fulfil their functions. The fact remainedthat when a State agreed to conclude a treaty with aninternational organization in an international confer-ence, States and international organizations must be ona strictly equal footing. That was a general principle ofthe international law of treaties.

14. He could not accept the Egyptian amendmentbecause it did not recognize the right of internationalorganizations to participate in negotiating a treaty, de-spite the definition in article 2, subparagraph 1 (e). Itwas also inconsistent with article 9, paragraph 1, underwhich the adoption of the text of a treaty required the

consent of all the States and international organizationsparticipating in its elaboration.15. He could not accept the Soviet Union amend-ment, because it was vague and incomplete. The pro-posal that the procedure should be agreed by the par-ticipants by consensus would in effect give a right ofveto to all participants.16. The Chinese amendment was unclear and unnec-essary. An international conference could always adopta different procedure by unanimity or consensus, andparagraph 2 already provided for a different procedureto be adopted by a two-thirds majority.17. Despite its ambiguities, he could accept theFrench amendment if the words "between States andinternational organizations or between international or-ganizations" were inserted after "international con-ference".18. He favoured the amendment submitted by eightinternational organizations, because it was comprehen-sive and in conformity with the provisions of the draftarticles. If it was not acceptable to a majority of delega-tions, his delegation would support the Commission'sdraft.19. Mr. KOECK (Holy See) said that the discussioncentred on two issues. The first was whether inter-national organizations should be permitted to partici-pate at all in international conferences for the elabora-tion of treaties on an equal footing with States. Theamendments submitted showed how reluctant someStates still were to recognize the international legalpersonality of international organizations when it cameto the consequences of that legal personality. Therewas a mistaken idea, which was dying hard, that States,and only States, could legitimately be the subjects ofinternational law. He would have thought that thatnarrow concept of international legal personality hadfinally died with the advisory opinion of the Interna-tional Court of Justice in the case concerning reparationfor injuries suffered in the service of the United Na-tions,1 nearly 40 years ago. The Court had ruled that thesubjects of international law were not necessarily iden-tical in their nature and that the extent of their legalpersonality, in other words their international rightsand duties, depended on the need of the internationalcommunity.

20. His delegation believed it only logical that an in-ternational organization destined to become a party toan international treaty on an equal footing with Statesshould have the same say as States in the negotiationsleading to the elaboration of the text and in its formaladoption. His delegation supported the present text ofarticle 9.21. The second issue was whether a general ruleshould be laid down as to the majority needed for theadoption of a treaty by an international conference. Hisdelegation had no great preference, but as the two-thirds majority seemed to have become a standing prac-tice and was included in the 1969 Vienna Convention on

' See Reparation for injuries suffered in the service of the UnitedNations, Advisory Opinion: l.C.J. Reports 1949, p. 174.


the Law of Treaties, he saw no point in departing fromthat already codified practice.22. The wording of the article could still be improved,and his delegation would be willing to support the Chi-nese amendment.23. Mr. TUERK (Austria) said his delegation was inprinciple quite satisfied with the Commission's text.There was, however, an omission in paragraph 2, whichdid not cover the case of a treaty between internationalorganizations elaborated and concluded in a conferenceconsisting only of international organizations. Therewas no reason to make such treaties subject to theunanimity rule in paragraph 1 of the article. That gapcould be filled by adopting the amendment proposed byeight international organizations.

24. He saw merit in the French amendment, particu-larly in so far as it specified a two-thirds majority of theparticipants "present and voting".

25. The question had been raised why an internationalorganization should be given the right to vote underarticle 9, in connection with the adoption of the text ofa treaty. The example of the present Conference, atwhich only States could vote, had been cited. Thecomparison was not valid, because the present Con-ference was a law-making conference and States werethe only law-makers under international law. Para-graph 2 of article 9 dealt with a different situation. Theparagraph related to the elaboration of a treaty be-tween States and international organizations. In thatsituation, international organizations should be givendecision-making powers with regard to the negotiationand adoption of the text. If they were not, they wouldsimply not attend the conference.

26. His delegation was attracted by the Chineseamendment, which would make for flexibility in thefuture and would therefore be helpful.

27. The existing two-thirds majority rule had beenquestioned by some speakers, who wished to replace itby the rule of consensus. His delegation welcomed thedevelopment of consensus and would like to see itadopted wherever possible. The fact remained that inorder to work by consensus it was necessary to haveconsensus in the first place.

28. Mr. JESUS (Cape Verde) said that his own feelingwas that article 9 should be dropped, because it createdconflicts with well established practice. To begin with,the unanimity rule set forth in paragraph 1 was notfollowed in practice. In that connection, he drew atten-tion to the concluding proviso of article 5, "withoutprejudice to any relevant rules of the organization".That proviso expressed the existing practice. When theGeneral Assembly drew up a treaty, it applied its ownrules of procedure, not article 9 of the 1969 ViennaConvention.

29. If paragraph 1 were retained, it should be regardedas containing an indicative, not a compulsory, rule. Iffive States held a conference among themselves to drawup a treaty and agreed that decisions would be taken bya four-fifths majority, there could be no question ofimposing upon them the unanimity rule in paragraph 1of article 9. As sovereign States, they were free to adopt

their own rules for purposes of the adoption of the textof a treaty.

30. Paragraph 2 was also at variance with existingpractice. There was already a well-established practicefor conferences of States. It was to be found in the rulesof procedure of United Nations conferences like thepresent Conference.

31. His delegation preferred the Soviet Union amend-ment, which would introduce the greatest measure offlexibility by enabling international conferences toadopt the procedure they preferred. The Egyptianamendment would not allow international organiza-tions to vote on the adoption of the text of a treaty. Thatapproach was correct only in certain cases. Everythingdepended on the subject-matter of the treaty con-cerned. It would not be proper for international organ-izations to vote on the adoption of the text of a treatywhich laid down general rules of international law. Inother cases the participants in a conference might wellagree that certain international organizations shouldhave the right to vote on the adoption of the text, andthe draft articles should not preclude that possibility.The matter should be decided in the rules of procedureof the conference, as the Soviet Union suggested.

32. His delegation would be prepared to accept thearticle with the Soviet Union amendment, and sug-gested, as a sub-amendment, that the concludingwords, "in accordance with a procedure agreed by theparticipants in that conference", should read: "in ac-cordance with the rules of procedure of that confer-ence".

33. Mr. WOKALEK (Federal Republic of Germany)said the discussion raised the sensitive issue of how atreaty was agreed upon and who had a say in the matter.As he saw it, the parties in the negotiation of a treatymust all have equal standing in the negotiations. If thatequality was not respected, it would not be a negotia-tion between a State and an international organizationbut rather a diktat on the part of the State. The presentConference was concerned with working out rules forthe conclusion of treaties to which international or-ganizations were parties. It would be unthinkable toexclude international organizations from the process.

34. Efforts should be made to avoid the ordeal whichhad preceded the present Conference, when three pre-paratory sessions in New York had been needed toprepare the rules of procedure. The question of theparticipation of organizations should be settled onceand for all. The article under discussion covered all thenecessary points, and paragraph 2 was very similar tothe corresponding provision of the 1969 Vienna Con-vention, subject to the insertion of the reference to"international organizations".

35. His delegation supported the eight-organizationamendment, in the interests of clarity. The Chineseamendment, he thought, would introduce an element ofambiguity, and the French amendment seemed some-what too open. The Soviet Union amendment had themajor drawback of requiring a consensus before a con-ference could start. Lastly, with regard to the Egyptianamendment, he concurred in the Greek representa-


tive's criticism that it would deprive international or-ganizations of treaty-making power.36. Mr. HARDY (European Economic Community)stressed that conferences held for the adoption oftreaties were of many and varied kinds, ranging fromgeneral law-making conferences like the present one tohighly technical ones. Their scale varied from threeparticipants to a hundred or more. In some, only Statesparticipated, although that could scarcely be the casedealt with in article 9, paragraph 2. In others, inter-national organizations took part on an equal footingwith States or participated in some other way in theConference.37. The European Community, for its part, could par-ticipate in conferences on the same basis as States incases where it had received exclusive competence inthe area in question. In other instances, the Communitycould take part in conferences together with its memberStates in cases which concerned the competence of theCommunity as well as that of its member States. TheCommunity would therefore prefer to retain the Inter-national Law Commission's text of paragraph 2, thoughit had some difficulty with the wording. The phrase "atan international conference of States in which organiza-tions participate" gave an unbalanced presentation ofthe principle of the equality of the treaty participants.38. He could not support the Egyptian amendment,which would drastically limit decision-making at con-ferences so as to exclude international organizations inthe case of a treaty which, ex hypothesis was to be atreaty between States and international organizations,or even between international organizations alone. Thefundamental principle was that of the equality of theparties to a treaty, which was to be found in paragraph 1of the article.39. In conclusion, his preference would be for theCommission's text, but he could accept the eight-organization and French amendments. Considerationmight also be given to the oral amendment suggested byGreece (see para. 17 above) and supported by Austria.The Egyptian amendment was unduly rigid, and there-fore unacceptable.40. Mr. BARRETO (Portugal) said that in dealingwith paragraph 2 there were two philosophical ap-proaches. One maintained that States and internationalorganizations could not be placed on the same footing.The other accorded international organizations thesame rights as States. His delegation favoured the sec-ond approach and could not therefore accept the Egyp-tian amendment.41. The Soviet Union amendment appeared to offer agood basis of discussion, but had a drawback. Howcould the procedure for the conference be unanimouslyagreed? That drawback detracted from the flexibilitywhich that amendment, like the Chinese amendment,was intended to provide.42. His delegation was prepared to accept the articleas it stood, and could accept the French amendment.His delegation would have no difficulty in approvingthe eight-organization amendment for the reasonsstated at the previous meeting by the United Nationsrepresentative.

43. Mr. KHVOSTOV (Byelorussian Soviet SocialistRepublic) said that the present draft of paragraph 2was unacceptable. His delegation believed as a matterof principle that international organizations could notenjoy equal rights with States where the adoption of thetext of a treaty by means of a vote was concerned.Moreover, the draft ignored established practice,whereby it was for the States participating in an inter-national conference to establish its rules of procedure,including those governing the adoption of the text ofany treaty. It laid down a hard and fast rule whichunnecessarily restricted the independence of future in-ternational conferences in determining whatever pro-cedure they deemed suitable.44. His delegation supported the Soviet Unionamendment, which both took account of past practiceand allowed for a flexible approach in the future. Itcould not agree with the eight-organization amendmentor with the French amendment, which in essence du-plicated the provisions he had objected to in the presentdraft.45. Mr. SANG HOON CHO (Republic of Korea) saidthat the basic issue seemed to be how much flexibilityshould be allowed in the adoption of the text of a treatybetween States and international organizations at aninternational conference. All the amendments were de-signed to meet the need for flexibility. At the same time,it was necesary to comply with the framework that hadbeen largely stabilized through the 1969 Vienna Con-vention. Any substantive departure from the latter'sprovisions might result in virtually two sets of pro-cedures for the adoption of treaties at internationalconferences, a state of affairs that would be prejudicialto the binding force of the instruments in question. Hisdelegation believed that the basic position establishedin the Commission's draft, which simultaneously re-spected the provisions of the 1969 Vienna Conventionand made them more flexible, should be adhered to asfar as possible.46. Some drafting changes might be envisaged. Thepossibility might, for instance, be explored of allowingfor exceptional cases where participants other thaninternational organizations constituted most or all ofthe two-thirds majority, or vice versa. At all events, asharp division of interests between participating Statesand international organizations should not be per-mitted. If separate criteria could be established forcalculating the two-thirds majority for States and inter-national organizations, the paragraph could be appliedon a more rational basis without prejudice to the inten-tion of the 1969 Convention.47. Mr. AL-JARMAN (United Arab Emirates) saidthat his delegation respected the principle of nominalequality between States and international organizationsbut believed that some distinction must be made be-tween them, for example, in the adoption of treaties. Itwould be difficult to lay down hard and fast rules. Everyinternational conference had its specific nature andcharacteristics, and each should be allowed to deter-mine the manner of adoption in accordance with its ownrules.48. If a two-thirds majority rule was accepted, it wasnot inconceivable, given the proliferation of interna-


tional organizations, that the latter might impose theirwill on States by an overwhelming majority.

49. Turning to the various proposals for amendment,he said that his delegation found it difficult to accept theFrench amendment, but was sympathetically inclinedtowards the Chinese proposal, which had the virtue ofbeing more pragmatic. It could not accept the Egyp-tian proposal, which would deny international organ-izations the right to participate in the adoption of a text,thus overturning the principle of nominal equality towhich he had referred.

50. Mr. TARCICI (Yemen) said that representativeswho had spoken since he had placed his name on thelist of speakers had set out the views he would haveexpressed. He would therefore refrain from making thestatement he had prepared.

51. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that the Cape Verde representative hadconvincingly demonstrated the practice of internationalorganizations and shown the need for an amendmentthat would remove the two-thirds majority provisionfrom the centre of attention.

52. He considered the allusion by an earlier speaker todiktats to have been both ill-chosen and inapposite,suggesting as it did confrontational situations betweenStates and international organizations. Such situationswere surely inconceivable. It would certainly not be inthe interests of the State concerned to seek to impose itswill on international organizations in any way.

53. The Portuguese representative had argued thatthe requirement of unanimous agreement would make itdifficult to decide on the procedure to be followed at aninternational conference of States in which interna-tional organizations participated. That was not the caseif the interests of all the participants coincided.

54. The Austrian representative had alluded to var-ious categories of international conferences and thedifferent procedures adopted. The list might includelaw-making conferences such as the present one (atwhich procedure was determined and decision-takingrights were exerpised by States, although internationalorganizations might participate and enjoy certain otherrights); international conferences of a universal charac-ter or international conferences convened by States(where again the practice was that decisions were takenby States); conferences with the participation of Statesand international organizations with coincident andequal interests (the representative of the EuropeanEconomic Community had spoken of such conferen-ces, which were conceivable on a larger scale, devotedto a specific subject, such as copyright); and the ad-mittedly hypothetical category of conferences withonly international organizations as participants. TheSoviet Union amendment could be applied to all thecategories and took account of all the interests thatmight be involved. The participants in any conferencewould have the sovereign right to decide on the pro-cedure they deemed appropriate, including the proce-dure for adoption of the text of a treaty. It seemedobvious that they would do so in the mutual interest ofall concerned.

55. Mr. MONNIER (Switzerland) said that, althoughthe hypothesis was at the moment of an exceptionalnature, it might be wise to make provision for confer-ences where all the participants were international or-ganizations and where the provisions of article 9, para-graph 1, did not apply. The amendment submitted byeight international organizations was pertinent in thatconnection.56. Much had been said about the need for flexibilityin any rules that might be decided upon concerning theadoption of texts. Certainly a flexible rule was neces-sary, but there must at least be a rule. Mere reference toa conference's rules of procedure did not constitute arule. The text proposed by the International Law Com-mission in article 9, paragraph 2, had the merit of pro-viding for the rule of a two-thirds majority for the adop-tion of the text of a treaty. That rule corresponded topractice. In that realm, the present Conference couldnot benefit from precedence, for it was a codificationconference elaborating a treaty on treaties. The objectof article 9, paragraph 2, was different; it envisaged aconference at which States and international organiza-tions participated on an equal footing in order to adoptthe text of a treaty. Consequently, the Commission'stext as amended by the eight-organization proposal wasacceptable.

57. The Swiss delegation could also entertain theChinese proposal for an additional paragraph, whichwould introduce flexibility and take account of theviews of States which did not want the text to prejudicethe rules of procedure of such conferences.58. Mr. KRISAFI (Albania) considered that article 9allowed for the necessary flexibility. As was pointedout in paragraph (4) of the Commission's commentary,there was no intention of "impairing the autonomy ofinternational conferences in the adoption of their ownrules of procedure, which might prescribe a differentrule for the adoption of the text of a treaty, or in fillingany gaps in their rules of procedure on the subject".

59. His delegation took the view that States and inter-national organizations were not equal subjects of inter-national law. It therefore favoured the Egyptian amend-ment, which retained the Commission's provision forparticipation by organizations but reasonably restrictedvoting rights.

60. Mr. GUNEY (Turkey) said that those who werereluctant to admit the principle of strict equality be-tween contracting parties for the purposes of para-graph 2 should at least admit equitable treatment asa compromise. In other words, organizations partici-pating in an international conference of States and in-ternational organizations should enjoy certain rights atthe time of adoption of the text of a treaty. On the basisof that consideration, his delegation supported theChinese amendment as well as the eight-organizationamendment. It would have difficulty in accepting theFrench and Soviet Union proposals, and could notsupport the Egyptian amendment, which ran counter tothat principle and recognized no right on the part of theorganizations concerned.

61. Mr. ROSENSTOCK (United States of America)said that the great advantage of paragraph 2 as it stood


was its inclusion of a residual rule, in the absenceof which every international conference attended byStates and international organizations might be charac-terized by lengthy reaffirmations of States' positionson the matter. Because the Soviet Union amendmentabandoned that residual rule it was unacceptable to hisdelegation. The other amendments might result in slightimprovements to the original text, but his delegationwas inclined to favour the latter.62. Mr. ABDEL RAHMAN (Sudan) suggested thatthe basic issue was the choice between rigidity, in otherwords possible restrictions on future action, and flexi-bility. Setting his assessment of the various proposalsagainst that background, he could not agree to theEgyptian amendment, which would have the restrictiveeffect of virtually excluding international organizationsfrom participating in the process of treaty adoption. Hefound that the French proposal and the eight-organiza-tion amendment accorded a status to international or-ganizations which he could not accept. He was inclinedto favour the Chinese and Soviet Union amendments,which aimed at the desired flexibility. If they could bemerged in a single text, he would support it.

63. Mr. BERNAL (Mexico) said he considered thatthe Chinese proposal offered the best basis for an ac-ceptable solution. He also favoured the eight-organiza-tion amendment, which rightly called attention to theeventuality of conferences composed solely of inter-national organizations.

64. Mr. TEPAVICHAROV (Bulgaria) said that thespate of amendments to paragraph 2 of article 9 was anindication of dissatisfaction with the existing draft.

65. There should be no parallel between draft article 9and article 9 of the 1969 Vienna Convention. Althoughthe problem was the same, the solution to it should notbe, for the draft convention was designed to coverconferences at which international organizations par-ticipated both in the adoption and the drafting of thetreaty. Furthermore, since paragraph 2 could apply toan international conference at which there were veryfew participants and where an international organiza-tion and a State were on an equal footing, he would liketo know whether the two-thirds majority vote providedfor would apply cumulatively and jointly to States andinternational organizations. In his view, it should notdo so, and to that extent the article was defective.The Chinese and Soviet Union amendments deservedclose attention in that connection, with a view to re-producing the established rule whereby each confer-ence was master of its own procedure.

66. As to the desirability of conferring upon inter-national organizations the right to vote and to adopt thetext of a treaty, he considered that it would be pre-mature to take a position on the issue at that stage.

67. He agreed with the Cape Verde representativeand considered that paragraph 1 might be unnecessaryif the Soviet Union amendment were adopted. Thatamendment would also cover the case of a conferencein which only international organizations participated.In that connection, the Soviet representative mightwish to take account of the eight-organization proposalto add the words "or between international organ-

izations" after "international organizations" in para-graph 2.68. Mr. ABADA (Algeria) said that his delegation wasunable to support the French proposal, as it took noaccount of the fact that the desire for greater flexibilityshould not cloud the need for more precision in thewording of the draft articles. The Egyptian amendmentwas unduly restrictive, since it might not even allowinternational organizations to express their consent.His delegation would, however, have no difficulty inaccepting the Chinese amendment and had no objectionto the Soviet Union amendment, which was along sim-ilar lines but clearer. The two proposals might, hethought, be merged.69. Mr. ROCHE (Food and Agriculture Organizationof the United Nations) said that, for the reasons statedby the United Nations and other representatives, hisdelegation considered that the Commission's draft wastoo restrictive so far as the role of international organ-izations at international conferences was concerned,and therefore preferred the text put forward in theeight-organization amendment. The Food and Agricul-ture Organization of the United Nations could, how-ever, live with any text that provided suitable flexibil-ity. Conferences were very likely to vary considerablyin their composition, purposes and procedures in thefuture, and the rules and principles laid down in thedraft convention would apply for many years to come.The aim, therefore, should be to adopt provisions thatwould not inhibit the development of international law.

70. It had been said that conferences in which onlyinternational organizations took part could take placeonly in accordance with the principles laid down inarticle 9, paragraph 1. In his view, such conferenceswould certainly fall under paragraph 2. Indeed, if he hadunderstood correctly, the Soviet representative hadenvisaged that possibility when he had enumerated thevarious hypothetical types of conferences that could beheld in the future.

71. Ms. LUHULIMA (Indonesia) said her delegationconsidered that in certain cases international organiza-tions should be regarded as treaty partners on an equalfooting with States. It could not thecefore accept theEgyptian amendment, which closed the door to par-ticipation by international organizations in decision-making. It favoured a measure of flexibility wherebyinternational conferences would be enabled to decideon the rules of procedure to be followed for the adop-tion of treaties between States and international organ-izations and between international organizations.

72. The amendments put forward by China, eight or-ganizations, France and the Soviet Union were con-cerned with flexibility, but her delegation would preferthe Commission's draft if it was modified to coverinternational conferences between international organ-izations.

73. Associating her delegation with the Austrian rep-resentative's remarks regarding a two-thirds majority,she noted that there was a general trend towards thetaking of decisions by consensus. That point could,however, be taken care of by the last clause of para-graph 2.


74. Mr. LI JONG PIL (Democratic People's Republicof Korea) said that he was in favour of greater flexibilityin paragraph 2. A flexible approach in the matter ofinternational conferences would cope with all even-tualities in future treaty-making. On that basis, theChinese and Soviet Union amendments were accept-able to his delegation, since they had a common denom-inator and provided ample opportunity for a decision tobe taken regarding the procedures of international con-ferences in the light of developments.

75. Mr. VASSILENKO (Ukrainian Soviet SocialistRepublic) said that, as formulated, paragraph 2 wasunsatisfactory and equated States with internationalorganizations for the purpose of adopting the texts oftreaties. Other situations, quite apart from the one en-visaged in paragraph 2, could, however, be visualized.He had in mind, for instance, the case of a treaty con-cluded between many States with the participation ofone or more international organizations, or of a treatyconcluded between an equal number of States and in-ternational organizations, or again of a treaty con-cluded at an international conference where the major-ity of participants were international organizations andthere were only one or two States. There was also thecase where a treaty was concluded and adopted be-tween international organizations alone. It was not pos-sible to find a solution for each one of the manifoldcombinations of those four basic variants under thepresent, or indeed any other, draft convention. Para-graph 2 should therefore be modified to provide for themaximum flexibility. His delegation believed that theSoviet Union proposal provided an appropriate solu-tion, and would consider it appropriate if a third para-graph were added to the article to cover the case of thetext of treaties drawn up at international conferences inwhich only international organizations took part.

76. Mr. SKIBSTED (Denmark) said his delegationsupported the article as drafted, since it served theobjective of ensuring that international organizationsshould be placed on the same footing as States whentreaties between States and international organizationswere being drawn up. It also laid down a flexible rulethat would help to prevent international conferences

from failing because of procedural disagreements.There was some risk of that happening with the SovietUnion proposal, and the amendment was therefore un-acceptable to his delegation. The eight-organizationamendment would add a positive element to the Com-mission's draft, and his delegation would have no dif-ficulty in supporting it.77. Mr. RIPHAGEN (Netherlands) said that, ac-cording to his reading of the Commission's draft, itspurpose was not to confer the right to participate in agiven conference on any State or international organ-ization. Indeed, there was no general rule that estab-lished such a right. Further, as he understood them, thewords "participating in its drawing up" in paragraph 1signified that an international organization had the rightto put proposals to the conference and to vote on pro-posals, while paragraph 2, read in the light of para-graph 1, merely provided that, if a State or internationalorganization participated in that way, it should alsotake part in deciding how the text was to be adopted, inother words, in adopting the rules of procedure. Thatseemed to be only logical. On that basis, therefore, theCommission's draft was acceptable to his delegation.

78. Referring to the proposed amendments, he saidthat his delegation was willing to support the eight-organization amendment, which was mainly concernedwith a point of drafting. It did, however, provide for thepossibility of a conference composed of internationalorganizations alone, such as, for instance, one con-vened with a view to conferring a uniform status oninternational civil servants. The Commission's draftdid not exclude such a possibility, but the amendmentwould make the position absolutely clear.

79. The French amendment was also concerned witha point of drafting and did not say anything differentfrom the Commission's draft. In that connection, heconsidered that the Conference should not try to intro-duce more into article 9 than the Commission intended.The question of the composition of international con-ferences, for instance, was best left to internationalpractice.


10th meetingWednesday, 26 February 1986, at 3.20 p.m.





Article 7 (Powers and full powers) {continued)*

1. The CHAIRMAN suggested that the Commit-tee should establish a working group on article 7,composed of the sponsors of the amendments and ofspecially interested delegations, and chaired byMr. Pisk (Czechoslovakia). A similar procedure mightbe adopted with other articles to be considered by the

* Resumed from the 8th meeting.


Committee. If he saw no objection, he would take it thatthe Committee accepted his suggestion.

// was so agreed.

Article 9 (Adoption of the text) (continued)

Paragraph 2 (continued)

2. Mr. GILL (India) said that his delegation had nodifficulty with the International Law Commission'sdraft of paragraph 2, which contained a useful residualrule in the form of the proviso safeguarding the auton-omy of international conferences. It therefore coveredthe substance of the Chinese and Soviet Unionproposals (A/CONF. 129/C. 1/L. 17 and A/CONF.129/C.1/L.30). His delegation could accept the changesproposed by the Council of Europe and other inter-national organizations in document A/CONF.129/C.1/L.22, which filled a gap in the existing text, as well asthe World Bank amendment to paragraph 1 of the ar-ticle (A/CONF. 129/C. 1/L.23), which took account ofpractice. The Conference must look to the future andadopt a practical approach to the subject-matter of thedraft convention.

3. With regard to the question raised by the Bulgarianrepresentative at the previous meeting, he thought thatthe two-thirds majority for which the paragraph pro-vided meant two-thirds of the aggregate of States andinternational organizations present and voting.4. Mr. HAYASHI (Japan) said his delegation wasconvinced that the wisest course was to adopt the Com-mission's text, which, as the United States had saidat the previous meeting, had the merit of containinga residual rule. Also, the text did not exclude the pos-sibility of other rules being adopted, including a con-sensus requirement. The difference between theFrench proposal (A/CONF. 129/C. 1/L.28) and the Com-mission's text was a matter of drafting, and both textsshould be referred to the Drafting Committee.5. Mr. CORREIA (Angola) said his delegation had nogreat difficulty in accepting the original text: the rules itembodied were not new, but they were being applied toa new category of entities, namely, international organ-izations. However, the formulation of the paragraphwas not sufficiently clear. In regard to conferences inwhich both States and international organizations par-ticipated, it was best to maintain the distinction be-tween them in regard to their status and allow States todecide whether the international organizations shouldparticipate in the conference on an equal footing.6. His delegation could support the Soviet Unionproposal and also the Chinese amendment, providedthe Commission's text was given the formulation hehad recommended. In substance, the difference be-tween the Soviet Union and Chinese proposals wassimply a question of form.7. Mr. HALTTUNEN (Finland) said that para-graph 2, as drafted by the Commission, was of a pro-cedural nature in that it concerned the majority re-quired for the adoption of a treaty between States andinternational organizations at an international confer-ence. However, that was not the problem in practice.At such a conference the States taking part might be

members of an international organization also partici-pating; if that organization became a party to the treatybut some of its member States did not, those Stateswould be third parties to the treaty, although as memberStates of the organization it might give them rights orobligations. The matter would require consideration inconnection with part IV of the draft articles on theamendment and modification of treaties. His delega-tion saw some merit in the amendment proposed byeight international organizations, which spelt out abasic rule.

8. Mr. NEGREIROS (Peru) said that an article reg-ulating the participation of States and international or-ganizations in the adoption of the text of a treaty re-quired careful study, especially as far as adoption at aninternational conference was concerned. An interna-tional conference was a negotiating process, in whichthe viewpoints of the participants had of necessity toundergo modification. Accordingly, the different wayin which decisions were taken by States and inter-national organizations had to be borne in mind. A Statehad an Executive Power in which decision-making wasconcentrated, but no organ of an international organiza-tion possessing similar competence had yet been de-fined. Representatives of international organizationsmight therefore find it difficult to obtain instructionswhich would allow them to accept the suggestionswhich were bound to emerge during the negotiatingprocess, particularly if the organ with competence toinstruct them was a collegiate body which only metperiodically.

9. For these reasons it would be advisable to makeprovisions that, without necessarily being rigid, wouldavoid the adopting of articles in this respect whichwould be inoperable. His delegation therefore sup-ported the Chinese amendment; it understood it asmeeting the same concern as the Soviet Union pro-posal, which it likewise considered appropriate.10. Mr. ALMODOVAR (Cuba) said that represen-tatives of States had expressed concern that the Inter-national Law Commission's text of paragraph 2 mightallow international organizations to vote on the adop-tion of the text of a treaty on an equal footing withStates. That concern was justified, since internationalorganizations were created by States; even if a group ofinternational organizations was to meet and create an-other international organization, it would be on thebasis of powers given them by States. Mention hadbeen made of the paradox that, at a conference, a groupof States which had set up an international organizationwhich also participated in the conference might notvote in the same way as the representative of thatorganization. That was the point of the amendmentproposed by Egypt (A/CONF. 129/C. 1/L.31). Also,concern had been expressed by some delegations that,in default of other rules, conferences would have to fallback on the unanimity rule set out in paragraph 1 ofarticle 9. The article needed to be formulated in such away that it did not create an embarrassing situation forStates, which were the principal subjects of interna-tional law.

11. The Chinese amendment might seem acceptablein principle, but, viewed in its broadest sense, it could


permit a situation in which a conference of internationalorganizations could establish a procedure which theparticipating States found unacceptable. The SovietUnion proposal seemed a more flexible solution to theproblem, and it might be possible to reconcile it with theChinese amendment.12. Mr. VOGHEL (Canada) said that his delegationconsidered the most acceptable course would be toapprove the Commission's draft, which was precise butleft the participants the option of adopting what rulesthey pleased, thereby giving the paragraph the flexi-bility sought by the various amendments. His delega-tion could also accept the French proposal, but con-sidered the Commission's draft a better text.13. Mr. EIRIKSSON (Iceland) said that his delega-tion supported the French proposal.14. Mr. CASTROVIEJO (Spain) said that his delega-tion had difficulty in understanding how an interna-tional conference concerned with the adoption of atreaty between States and international organizationscould limit the participation of those organizations inthe conference. The most satisfactory proposal for al-tering the article was the one submitted by eight inter-national organizations, and his delegation supported it.15. Mr. REUTER (Expert Consultant) said that hewas sufficiently optimistic to hope that everyone wouldagree, if not on the text of the paragraph, at least on theCommission's intention in proposing it. Its antecedent,article 9, paragraph 2, of the 1969 Vienna Conventionon the Law of Treaties,1 had originated in a simplequestion posed by the eminent lawyer Sir Gerald Fitz-maurice in one of the Commission's early reports on thetopic of the law of treaties: when international con-ferences met, worked out their rules of procedure anddecided on a particular majority for the adoption oftreaties, what was the legal rule by which they decidedwhat that majority should be? There must be, in fact, arule about how to adopt a rule. The one incorporated inthe 1969 Convention, and inspired by United Nationspractice, was that the decision of a conference on thetreaty-adoption majority required a two-thirds majorityitself. That gave the conference considerable latitudeand was also a matter of common sense, since, when alarge number of States were involved in negotiations, asat a conference, the traditional unanimity rule for theadoption of treaties became inappropriate.

16. But the paragraph did not answer the fundamentalquestion, what was a conference? If a meeting was nota conference, the unanimity rule held. A frivolous an-swer might be that a meeting became a conferencewhen it was not possible to accommodate all the par-ticipants around a table, but a proper reply was yet to befound.17. The next point was that it would normally beStates which decided what organization or what organ-izations, probably only few in number, would be invitedto a conference in which both States and organizationsparticipated, and whether they wished that organiza-


tion or organizations to participate in the treaty. It wasthat characteristic—the fact that the initiative in suchmatters normally rested with States, that the decision toinvite was a political one—which had led the Commis-sion to include in the draft articles a paragraph modelledon article 9, paragraph 2, of the 1969 Convention. Hedid not feel that the paragraph, looked at from that pointof view, placed organizations on the same footingas States. The Commission had not taken a stand onthe highly political question whether it was the right ofan international organization to participate in inter-national conferences, nor did he feel that the Con-ference had to consider it. What it had done, however,was to express in the article the idea that, once an entitywas required to be a party to a treaty, there had to be acertain equality between all the parties to it; otherwisethe words "convention" and "treaty" would becomemeaningless. That was the sole intention of the text: heacknowledged that the wording was not entirely clear,but at least its meaning was explained in the Inter-national Law Commission's commentary to the article(see A/CONF. 129/4).

18. Mr. SCHRICKE (France) said that the first pointwas whether the rule in article 9, paragraph 2, should beextended to conferences involving only internationalorganizations. The Commission had not tackled thequestion, for the reasons given in the commentary,but a large number of international organizations ap-peared to consider that extension desirable and hadconsequently proposed the amendment in documentA/CONF. 129/C.1/L.22.19. With paragraph 2 as it stood, the adoption oftreaties between international organizations would begoverned by the unanimity rule in paragraph 1, whichwould not satisfy the international organizations andwhich was, after all, illogical. Accordingly, the Frenchdelegation saw no reasons why the draft should notcontain the two-thirds majority rule. The French pro-posal followed that line. By referring simply to "atreaty", it should meet the concerns of those delega-tions which wanted the text to be applicable to bothtypes of treaties, as well as to both types of confer-ences.

20. Regarding the rights of international organiza-tions, his delegation did not wish to take a position onthe general question—which, as the Expert Consultanthad said, was not before the Conference—whether in-ternational organizations were entitled generally to par-ticipate in international conferences, or what theirstatus was. It did, however, consider, that article 9should settle the question whether international organ-izations had voting rights when they participated inconferences. The French proposal settled it implicitlyby making the required voting majority two-thirds ofthe participants present and voting, instead of theStates and organizations present and voting.

21. His delegation had certain difficulties with theChinese amendment in that it was superimposed onparagraphs 1 and 2. Paragraph 1 stated the principleof unanimity; paragraph 2 established an exception tothat principle for international conferences, namely thetwo-thirds majority rule, and made it possible to der-ogate from that exception by a decision taken by the


same majority. Thus the Chinese amendment posed aproblem in that it provided an exception both to theprinciple itself and to the exception. That might createa practical difficulty; for example, an internationaltreaty-making conference might have rules of proce-dure less precise than those of the present conference,perhaps not specifying by what majority the treatyshould be adopted. If so, according to paragraph 2 ofthe Commission's text, a two-thirds majority would berequired, but under the proposed paragraph 3 it couldbe argued that unanimity was required. The conferencewould consequently have the difficult task of choosingbetween two conflicting rules.22. Unlike the Commission's draft and the Frenchproposal, both of which set a two-thirds majority, theproposal by the Soviet Union did not define the condi-tions according to which participants in a conferenceshould adopt the text of a treaty. It left the matter open;if paragraph 1 was applied, it might be thought thatunanimity was required.23. Mr. WANG Houli (China) said that the desire fora flexible text, something called for by many delega-tions, had prompted his delegation's proposal. It wasintended to cover international conferences in whichStates and international organizations participated onan equal footing as well as those at which they par-ticipated with a different status, such as at the presentconference. It also covered international conferencesat which the participants were exclusively internationalorganizations. In that sense, there were some simi-larities between the proposal by the Soviet Union andthe Chinese proposal. However, the Chinese proposalhad maintained paragraph 2 of the article, and thereforeit might be acceptable to more delegations. His delega-tion was ready to consult other interested delegationsinformally with a view to finding a satisfactory formula-tion for the article.24. Mr. RAMADAN (Egypt) said that his delegationwas certainly among those which believed that inter-national organizations had the capacity under interna-tional law to participate in the preparation of treatiesand be parties to them. Furthermore, it did not rule outthe idea that at certain conferences international organ-izations should be allowed to vote on the adoption of atreaty.25. The representatives of Austria and Cape Verdehad indicated at the previous meeting that there weresome conferences at which voting on the adoption of atreaty had to be restricted to States, and others whereinternational organizations might participate in thevote. The present Conference was an example of theformer. For the latter, the possibility remained open,under the last part of the Egyptian proposal, for theState or States initiating the conference to decide thatthe organizations might vote on the adoption of thetreaty.26. International organizations, as the Expert Con-sultant had indicated, constituted the technical meanswhereby States members of those organizations couldrealize their interests; any treaty signed at a conferenceheld under the auspices of such organizations wouldbind members who voted against it as well as those whovoted in favour of it. The Egyptian proposal therefore

stated, as the basic rule, that States had the right to voteon the adoption of a treaty and, as an exception to thatrule, that international organizations could have thatright. His delegation was nevertheless prepared to co-operate with other interested delegations in seeking agenerally acceptable formulation for article 9, para-graph 2. The last part of the Egyptian proposal wassimilar in effect to the Chinese amendment. In regard tothe proposal made by eight international organizations,he suggested that, in order to cover international con-ferences at which the participants were internationalorganizations only, a provision might be inserted in theparagraph as it stood.27. Mr. ECONOMIDES (Greece) said that, under theprovision proposed by Egypt, States could certainlymake treaties drawn up by States open to accession byorganizations. Nevertheless, in his view, the Egyptianproposal would have the effect of depriving interna-tional organizations of the possibility of being a party totreaty negotiations and of participating in the prepara-tion and adoption of treaties as defined in article 2 of thedraft. For if an organization which had participated in aconference had no right to vote on the adoption of thetreaty, in reality its capacity to be a party to the negotia-tions was not acknowledged, which was contrary to thedraft convention. His delegation continued to believethat an organization which participated in a conferenceto conclude a convention between States and inter-national organizations had to be placed on a strictlyequal footing with States, because if that were not thecase, there would, to echo the words of the ExpertConsultant, be neither convention nor treaty, nor evena treaty procedure.28. The CHAIRMAN said that the changes proposedto article 9, paragraph 2, were aimed at providing aflexible rule which would leave room for the futuredevelopment of international law. However, the dis-cussion had shown that some of the formulations sug-gested would permit only a very rigid interpretation,while others were so flexible that they might scarcely besaid to embody a rule at all.29. The issue in article 9 was linked to the largerquestion of the treaty-making capacity of internationalorganizations and their participation in treaty-makingconferences. The amendment submitted by eight inter-national organizations dealt explicitly with the adoptionof a treaty between international organizations, a mat-ter which was implicit in the French proposal as well.30. If the Committee agreed that international organ-izations could hold conferences with the authority toadopt treaties, that situation could be catered for in thedraft with relatively minor changes.31. The Expert Consultant had drawn attention to thequestion of who was to adopt the rules of procedure ofinternational conferences, a matter on which article 9,paragraph 2, had a considerable bearing. The problemmight have arisen, for example, in respect of rule 63 ofthe rules of procedure of the present Conference. Ashad been said, the rule in that paragraph was intendedto be residual. He suggested that the paragraph andthe various proposals for it should be referred to theworking group chaired by Mr. Pisk (Czechoslovakia).

It was so agreed.


Article 11 (Means of expressing consent to be bound bya treaty)

Paragraph 2

32. Mr. ROSENSTOCK (United States of America)said that the issue raised by paragraph 2 had alreadybeen considered in connection with the definition inarticle 2, subparagraph 1 (b bis), of an "act of formalconfirmation". He therefore questioned the need for afurther detailed discussion on the matter. In other re-spects the paragraph posed no problems.

33. Mr. ULLRICH (German Democratic Republic),introducing his delegation's amendment (A/CONF. 129/C.1/L.12), said that the Commission's text correctlyenumerated the technical possibilities of expressing theconsent of an international organization to be bound bya treaty. However, in proposing its amendment, hisdelegation had been guided by the notion that the con-sent had far-reaching legal consequences; the intentionof the amendment was therefore to make it clear that aninternational organization's consent to be bound by atreaty would only take effect if the consent was expres-sed in terms compatible with the rules of that organiza-tion as defined in article 2, subparagraph 1 (/)• Theamendment was also linked with article 6, on the capac-ity of international organizations to conclude treaties,and was based on the assumption that an acceptabledefinition of "rules of the organization" could be for-mulated. In short, the proposed additional sentencewas designed to establish a logical relationship betweenthe rules of the organization, the capacity of inter-national organizations to conclude treaties, and theconsent of an international organization to be bound bya treaty.

34. Mr. GAJA (Italy) said that, if there was such anotion as the rules of an organization, those rules mustsurely apply to the way in which the consent of aninternational organization to be bound by a treaty wasexpressed. As it stood, the amendment seemed to be atvariance with the provisions of article 46. Article 11,paragraph 2, should be examined in that light.

35. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that the paragraph as drafted by the Com-mission was acceptable, but that he also saw merit inthe amendment proposed by the German DemocraticRepublic. The issue it raised was not complex and couldusefully be referred to the Drafting Committee.

36. The CHAIRMAN said that one way of dealingwith the issue might be to add the words' 'in accordancewith the rules of that organization" after the words"may be expressed".

37. Mr. JESUS (Cape Verde) agreed with the UnitedStates representative that the Committee should notdiscuss the questions raised by the paragraph unneces-sarily. His delegation felt that the point at issue in theamendment by the German Democratic Republic wastaken care of in article 6, since the capacity of inter-national organizations to conclude treaties surely in-cluded signature and the deposit of instruments of rati-fication or formal confirmation. It would be best toadhere to the Commission's text, with the proviso thatthe wording should be amended in accordance with

whatever decision was finally taken regarding the useof the terms "ratification" and "act of formal confir-mation".38. Mr. CRUZ FABRES (Chile) said that, since thesubject had arisen in the discussion on earlier articles, itwould be best to refer paragraph 2 to the DraftingCommittee.39. Mr. HAFNER (Austria) agreed, and pointed outthat the structure of article 11 was closely linked withthat of article 2, subparagraphs 1 (b) and (b bis). Hisdelegation had suggested (2nd meeting) that those twosubparagraphs should be merged, and that suggestionshould be kept in mind in considering the structure ofarticle 11.40. Mr. DEVLIN (World Health Organization) saidthat he was less certain than some other speakersthat the point raised by the proposed amendment toparagraph 2 was purely a matter of drafting, sincethe amendment was open to several interpretations.One possible interpretation was that the means ofexpressing consent should be in accordance with therules of the organization concerned. However, it wasunlikely that the rules of an international organiza-tion would cover the specific question of the means ofexpressing consent.

41. Mr. RASOOL (Pakistan) said that his delegationhad no problem with the Commission's text. Discus-sion of the amendment should be postponed until theterm "rules of the organization" was considered. Heagreed with earlier speakers that the article should bereferred to the Drafting Committee.42. Mr. HARDY (European Economic Community)said that the International Law Commission's wordingof article 11 was acceptable, but that the words "formalconfirmation" would require further discussion.43. The amendment proposed by the delegation of theGerman Democratic Republic raised issues which fellmore properly within the scope of article 6. He hadcommented on the interpretation of the term "rules ofthe organization" in an earlier statement (6th meeting).In his view, it was for the international organizationitself to determine how its rules were to be applied. Thequestion was not solely one of drafting and the con-sideration of the amendment should be deferred untilarticle 46 was discussed.44. Mrs. DIAGO (Cuba) said that both the paragraphand the amendment should be sent to the Drafting Com-mittee.

45. Mr. VASSILENKO (Ukrainian Soviet SocialistRepublic) said that the amendment was a substantiveimprovement on the Commission's text. The fact thatarticle 46 raised a related issue, as the representative ofItaly had pointed out, should not deter the Committeefrom trying to improve article 11. He therefore agreedwith the representative of Cuba that the Drafting Com-mittee should examine the article and the amendment.

46. The attachment to the Secretary-General's note(A/CONF. 129/8) indicated that paragraph 2 of article 11was closely linked with article 14, paragraph 3, andarticles 16, 18 and 19, paragraph 2. The Drafting Com-mitte should bear that in mind when discussing it.


47. The CHAIRMAN suggested that article 11, para-graph 2, and the amendment should be referred to theDrafting Committee on the understanding that the latterwould refer them back to the Committee of the Whole ifit considered that a question of substance was involved.48. Mr. ECONOMIDES (Greece) said that article 11provided how consent to be bound by a treaty should beexpressed. Such means as signature, ratification andapproval were generally regulated by general interna-tional law, not by the rules of the organization. Hisdelegation therefore proposed that the words "and therules of general international law" should be inserted inthe German Democratic Republic's amendment afterthe words "in accordance with the rules of that organ-ization". If that was done, his delegation would haveno objection to the amendment being referred to theDrafting Committee.49. Mr. MONNIER (Switzerland) said that the dis-cussion showed that the amendment was not merely adrafting matter. His delegation would oppose anychange which sought to accommodate the idea under-lying the amendment.50. Mr. RIPHAGEN (Netherlands) said that the textproposed by the German Democratic Republic raised asubstantive issue. If the paragraph and the amendmentwere referred to the Drafting Committee on the under-standing that the amendment was a drafting matter, hisdelegation would have to reserve its position on them.There was no agreement yet on the substance of theamendment, or even on whether it involved a questionof substance.51. Mr. PISK (Czechoslovakia) supported the sug-gestion that article 11, paragraph 2, and the amendmentby the German Democratic Republic be referred to theDrafting Committee.52. Mr. JESUS (Cape Verde) said that his delegationwas one which believed that the amendment made asubstantive change in the draft article. Furthermore,the concluding words of the sentence it proposed af-fected other articles, in particular article 46. Theamendment should be discussed thoroughly in theCommittee of the Whole.53. Mr. RASSOLKO (Byelorussian Soviet SocialistRepublic) supported the Chairman's suggestion thatarticle 11, paragraph 2, and the amendment by theGerman Democratic Republic should be referred to theDrafting Committee.54. Mr. WOKALEK (Federal Republic of Germany)suggested that the Committee of the Whole should post-pone the discussion until it took up article 46.55. Mr. RAMADAN (Egypt) said that the amendmentwas certainly related to article 46.56. Mr. NORDENFELT (Sweden) opposed the sug-gestion that the amendment should be referred to theDrafting Committee. In his opinion, it was of a substan-tive nature and concerned not only articles 2 and 46 butalso article 27, paragraph 2.57. Mr. RIPHAGEN (Netherlands) said that theCommittee of the Whole, if it referred the amendmentto the Drafting Committee, should ask it to decidewhether the amendment necessitated an addition of a

drafting nature to article 2. He felt sure that the DraftingCommittee would see the amendment as a matter ofsubstance and refer it back to the Committee of theWhole.58. Mr. AL-KHASAWNEH (Jordan) said that thematter was one of substance. Speaking as the Chairmanof the Drafting Committee, he too believed that theDrafting Committee would return the amendment to theCommittee of the Whole.

59. Mr. ECONOMIDES (Greece), expanding on thepoint he had raised earlier, said that article 11, para-graph 2, determined and enumerated the ways in whichan international organization expressed its consent tobe bound by a treaty. He would take as an example thecase of an international organization which expressedits consent to a treaty by an act of formal confirmation.The Committee had heard that at present such an actwas provided for in only a very small number of organ-izations and seldom formed part even of their practice.That being so, he would like the representative of theGerman Democratic Republic to consider the followingsituation: the consenting organization might be told thatit had expressed its consent in a manner not in keepingwith its rules and therefore invalidly; it might then replythat, since it possessed the right to enter into a treaty ofthe kind in question and was a party to the draft conven-tion, it had chosen to consent to it by an act of formalconfirmation instead of by some other means, despitethe fact that, stricto sensu, such an act was not inconformity with its rules. It was to cover that situationthat he had proposed an addition to the sentence sug-gested by the German Democratic Republic, to theeffect that consent should be expressed in accordancenot only with the rules of the organization but also withinternational law in general.

60. Mr. HERRON (Australia) said that the amend-ment of the German Democratic Republic had beenclearly identified as raising a point of substance. If itsproposer and supporters insisted on dealing with itunder article 11, the Committee of the Whole had nooption but to consider the point immediately. It might,however, refer the paragraph and the amendment to theDrafting Committee for a decision whether, in the lightof the structure of the entire draft, it was appropriate todeal with the amendment under article 11 or elsewhere.If the Drafting Committee decided that the amendmentshould be dealt with elsewhere, it would be able toconsider article 11 and refer the amendment back to theCommittee of the Whole as a matter of substance.

61. Mr. TEPAVICHAROV (Bulgaria) said that theCommittee did not seem to be making any progress inits discussion of article 11, paragraph 2. He thereforeproposed the adjournment of the meeting under rule 25of the rules of procedure in order to give delegations anopportunity to engage in consultations.

62. The CHAIRMAN said that under that rule theBulgarian motion could not be debated. He wouldtherefore assume, unless he heard any objection, thatthe Committee agreed to adjourn the meeting.

It was so decided.



11th meetingThursday, 27 February 1986, at 11.25 a.m.


In the absence of the Chairman, Mr. Nascimento eSilva (Brazil), V'ice-Chairman, took the Chair.


[Item 11] {continued)

Article 11 (Means of expressing consent to be bound bya treaty) {continued)

Paragraph 2 {continued)

1. Mr. ULLRICH (German Democratic Republic)said that, as several points of substance had been raisedwith regard to the amendment introduced by his delega-tion at the previous meeting (A/CONF. 129/C.l/L. 12),he would propose, with a view to expediting matters,that further discussion on it should be deferred until theCommittee took up articles 27 or 46.

// was so decided.

Article 19 (Formulation of reservations)

2. Mr. JESUS (Cape Verde), introducing the amend-ment proposed by his delegation (A/CONF. 129/C.l/L.34), said that if a reservation was to be prohibited,that should be done in express terms and in the treatyitself. The first part of his proposal, therefore, was thatsubparagraph 2 {a) should be reworded to read simply"the reservation is prohibited by the treaty", the re-mainder of the subparagraph being deleted. That wouldbe in line with article 19 (a) of the 1969 Vienna Conven-tion on the Law of Treaties.1 He noted, in that connec-tion, that the Commission's commentary to the article(see A/CONF. 129/4) gave no explanation of the reasonfor the additions to subparagraphs 1 {a) and 2 {a).

3. The new subparagraph 2 (d) proposed in the secondpart of the amendment covered the case of treatiesbetween States in which international organizationscould participate but only to the extent of the com-petence conferred upon them. The Convention on theLaw of the Sea was a case in point. An internationalorganization could be a party to a treaty without havingcompetence for all matters dealt with in it. Obviously,in such cases it should not be able to enter a reservationconcerning a provision in respect of which it lackedcompetence.


4. Mr. ABED (Tunisia) said that his delegation hadjoined Austria, Italy and Japan in sponsoring theamendment in A/CONF. 129/C.1/L.36 and had with-drawn its own amendment (A/CONF. 129/C.l/L. 14).

5. Stressing the importance of reservations in the ap-plication of a treaty, he said that it was essential that thewording of article 19 should not give rise to differencesof interpretation capable of delaying the entry into forceof treaties. The sponsors wished to have a clear, preciseand unequivocal text.

6. Draft article 19, which repeated the terms of arti-cle 19 of the 1969 Vienna Convention, incorporated anumber of new provisions. Under the latter, reserva-tions could not be formulated if it was established thatthe negotiating States and organizations were agreedthat the reservation was prohibited. It might be askedwhat purpose was served by a provision on those lines ifthe reservation could be expressly prohibited in thetreaty itself. Moreover, vague expressions like "isotherwise established" and "the States and organiza-tions or the organizations were agreed" could lead todifferences between the parties if it was necessary toprove it had been established they "were agreed" thatthe reservation was prohibited. These differencesessentially had to do with determining the body em-powered to prove that such an agreement had beenreached. The question would arise as to whether thematter should be determined by a body empowered forthe purpose or by the parties to the treaty.

7. There were so many questions that in his delega-tion's view the terms used in subparagraph (a) of para-graphs 1 and 2 might depart from the goal sought, whichwas to codify precisely and efficiently the law oftreaties between States and international organizationsor between international organizations. These newprovisions should be deleted from subparagraph {a),as they were unnecessary and were not even mentionedin the International Law Commission's commentary.That was the object of amendment A/CONF. 129/C.l/L.36, which sought to retain the prohibition of thereservation only if it was provided for in the treaty,and of course in the instances described in subpara-graphs {b) and (c) of paragraphs 1 and 2 of the article,similarly to what was retained at the 1969 Vienna Con-ference.

8. Mr. TALALAEV (Union of Soviet Socialist Re-publics), introducing his delegation's amendment(A/CONF. 129/C.1/L.38), said that his delegation sup-ported the amendments submitted which removed ob-scurities in the article and were closer to the text of the1969 Vienna Convention.

9. His delegation considered that sovereign Stateshad a broad right to enter reservations or object toreservations. International organizations in contrast


national organizations, a complex system of relation-ships came into being.

15. His delegation believed that an international or-ganization could not make a reservation incompatiblewith its constituent instrument or its functions, andaccordingly supported the amendments proposed bythe Soviet Union, the German Democratic Republicand Cape Verde, as well as the four-Power amendment.All should be referred to the Drafting Committee.

16. Mr. BERMAN (United Kingdom) said that all butone of the proposals put forward would further com-plicate the difficult question of reservations and weretherefore unacceptable to his delegation. His delega-tion could support the first part of the Cape Verdeamendment and the four-Power amendment.

17. His delegation could not support the second partof the Cape Verde amendment, which appeared to beattempting to derive a general rule from the particularcase where an international organization was a party toa treaty but its competence related only to certain pro-visions. He believed that if an international organiza-tion was competent in regard to certain provisions only,it would not in practice enter reservations to otherprovisions. He noted that the definition of "reserva-tion" in article 2 spoke of the exclusion or modificationof the legal effects of treaty provisions' 'in their applica-tion" to the State or organization concerned. The CapeVerde representative might perhaps consider it unnec-essary to pursue that aspect.

18. Turning to the Soviet Union amendment, he won-dered whether a reservation by an international organ-ization incompatible with its constituent instrumentswas likely to arise in practice. In a situation where aninternational organization wished to be a party to atreaty and its capacity was valid in every respect, it wasunlikely that it would enter a reservation incompatiblewith its constituent instruments. In his view, the Com-mittee should adopt a working understanding that therewas an expectation that international organizationswould, as a matter of course, operate in accordancewith their constituent instruments. Otherwise, to avoiddifficulties of interpretation it would be necesary to in-clude a reference to compatibility with the constituentinstruments of international organizations throughoutthe text of the Convention. If that were done, the textwould become unnecessarily heavy and impractical. Inhis view, the German Democratic Republic's amend-ment seemed to differ from the aim expressed by theGerman Democratic Republic representative in his in-troductory statement.

19. It was important to bear in mind the principle thatreservations affected the external relations betweencontracting parties, not the internal relations betweeninternational organizations and their own memberStates. The proposed amendments seemed to assumethe latter and were therefore unacceptable to his del-egation. They should not, he believed, be referred tothe Drafting Committee.

20. Mr. TUERK (Austria) said that the four-Poweramendment, of which his delegation was a sponsor, hadbeen ably introduced by the Tunisian representative.

did not have sovereign rights and their right to enterreservations depended on the scope of their functionsand the purpose of the treaty in question. His delega-tion's amendment was intended to establish that a res-ervation formulated by an international organizationcould be effective only if it was compatible with thepurposes of the treaty and the constituent instrumentsof the organization.

10. Mr. ULLRICH (German Democratic Republic),introducing his delegation's amendment to paragraph 2of the article (A/CONF.129/C.1/L.40), agreed that in-ternational organizations should have the right to for-mulate reservations to treaties, but said that the rightcould only extend to parts or provisions of a treatywhich were of direct concern to the international or-ganization and within its competence as defined byits constituent instrument and rules. The amendmentsought to make it clear that an international organ-ization could not enter reservations to treaties withStates unless the provisions affected its competence.As the other amendments submitted appeared to havethe same or similar aims, it might be useful to invite thesponsors to try to work out an agreed amendment.

11. Mr. LUKASIK (Poland) said that the formulationof reservations raised complex and difficult problemswhich the 1969 Vienna Convention had not fully re-solved, particularly in relation to reservations totreaties which were the constituent instruments of in-ternational organizations. In the present draft the dif-ficulties were increased, because the formulation ofreservations by international organizations raisedmany issues.

12. His delegation agreed that the deletions proposedin the Cape Verde and four-Power amendments werenecessary. He also agreed with the Soviet Union rep-resentative that the right of international organizationsto enter reservations depended on the powers and func-tions of the international organization and the purposesand objectives of the treaty. There could be no rightto enter a reservation on an unrelated matter. In lim-iting the rights of international organizations in thatrespect, the guidelines would be their constituent in-struments. Those points were covered in the SovietUnion amendment and the German Democratic Re-public's amendment.

13. His delegation believed that the amendments sub-mitted should be transmitted to the Drafting Committeeto be combined in an appropriate manner.

14. Mr. PISK (Czechoslovakia) said that the questionof reservations to international treaties by interna-tional organizations was complex, because there waslittle practice to provide guidance. The question waswhether international organizations should be able toformulate reservations subject only to the same restric-tions as States. There was a need to strike a balancebetween the sovereignty of States and the restrictedcapacities of international organizations, which couldonly function in accordance with their constituent in-struments, on the one hand, and on the other, thecontractual nature of the relationship between the par-ties to a treaty. Where the parties to a treaty did nothave identical status, as in the case of States and inter-


21. The draft article differed from the correspondingtext of the 1969 Vienna Convention in that a furtherrestriction to reservations had been introduced, em-bodied in the formula "or it is otherwise establishedthat the negotiating States and negotiating organiza-tions were agreed that the reservation is prohibited" atthe end of subparagraph 1 (a) and the somewhat similarlanguage at the end of subparagraph 2 (a). The introduc-tion of that second criterion made for ambiguity andlegal uncertainty. The fact of the matter was that, ifany agreement existed between the negotiating partiesto the effect that a reservation was prohibited, thatagreement would become a part of the treaty itself. Forthose reasons, the four-Power amendment called forthe deletion of the two passages in question so thatsubparagraphs 1 (a) and 2 (a) would read (thus revertingto the language of the 1969 Vienna Convention): "thereservation is prohibited by the treaty".

22. In that connection, he referred to his oral sugges-tion at the 2nd meeting to combine subparagraphs 1 (b)and 1 {b bis) of article 2, on "ratification" and "act offormal confirmation", respectively. Adoption of thatsuggestion would make it possible to simplify article 19and reduce it to a single paragraph.23. Mr. ALBANESE (Council of Europe) said thathis delegation could not support the second point in theCape Verde amendment or the Soviet Union and Ger-man Democratic Republic amendments, because theypurported to restrict the power of international organ-izations to formulate reservations.

24. His first objection was general. He could acceptthe view that there were important differences betweenStates and international organizations, but he observedthat, in the area currently under consideration, whichwas the contractual field, if one wished to respect thespirit of the matter dealt with one must affirm the princi-ple of the contractual equality of the parties, whichshould be fully recognized and respected at all stages ofthe life of a treaty: its negotiation, the adoption of itstext, the expression of the will to be bound by the treatyand the formulation of reservations.

25. Any attempt to create a distinction in the matterbetween the rights and powers of various parties con-stituted a contradiction in terms and a denial of thesynallagmatic character of treaties.

26. Furthermore, his delegation opposed the amend-ments for another reason, which was more specific tothe Council of Europe but which might perhaps apply toother organizations as well. In the Council of Europe,the adoption of the text of a treaty and, where ap-propriate, the formulation of reservations were decidedby the Committee of Ministers, in which all the memberStates were represented. It was for them to ensure thatthe treaty, and, on occasion, the reservation, did notconflict with the rules of the organization.

27. His delegation accordingly feared that adoption ofthe amendments in question might open the door toStates not members of the Council of Europe to take aposition on the conformity or otherwise of a reservationwith the constituent instrument of the organization oron the question whether a provision which was thesubject of a reservation affected or did not affect the

interests of the organization. The result would be unac-ceptable interference in the internal constitutional af-fairs of the organization. His delegation thus could notsupport the amendments mentioned, and supported theadoption of the draft article.28. Mr. SANYAOLU (Nigeria) asked the ExpertConsultant for an explanation of the formulation ofsubparagraphs 1 (a) and 2 (a). The International LawCommission's commentary was silent on that point.29. Mr. REUTER (Expert Consultant) said it was truethat the Commission's commentary did not explain thereason for departing from the 1969 Vienna Conventiontext and inserting the formula "or it is otherwise estab-lished that the negotiating States and negotiating organ-izations were agreed that the reservation is prohibited"in subparagraph 1 (a) and a similar formula in sub-paragraph 2 (a).30. At the 1968/1969 Vienna Conference, conflictingviews had been expressed with regard to the freedom tomake reservations. The view which had prevailed, andwhich was embodied in article 19 of the 1969 ViennaConvention, had been in favour of the freedom to makereservations. Since 1969, that position had been ac-cepted in a number of judicial decisions, some of themrelating to treaties to which the 1969 Vienna Conven-tion was not applicable.31. The passages inserted in subparagraphs 1 (a) and2 (a) of the article embodied a slight limitation to thatfreedom to make reservations. The reason was that thetreaties of international organizations were consideredas having a somewhat delicate character. Because oftheir particular nature, it was felt desirable to avoidopening the door too widely to reservations.32. That being said, it was his feeling that deletion ofthe two passages would do no harm. The rule theyembodied went without saying, since there was nothingto prevent the parties to a treaty from agreeing amongthemselves subsequent to the adoption of a treaty that aparticular reservation would be prohibited.33. Lastly, he recalled that at the 1968 session of theLaw of Treaties Conference the question had arisen ofadopting provisions governing the treaties of interna-tional organizations. Some delegations had been in fa-vour of drafting rules in the matter at that Conference,and one typeof treaty which had attracted particularattention in that connection had been the safeguardstreaties of the International Atomic Energy Agency(IAEA). Those important treaties were of a tripartitecharacter, in that the international organization con-cerned was involved at the request of the two interestedStates. He drew attention to that situation because thesolution which would be adopted must not have theeffect of preventing an organization like the IAEA fromexercising its control functions.

34. Mr. NEUMANN (United Nations IndustrialDevelopment Organization), referring to the first partof the Cape Verde amendment, said that it was un-desirable to introduce a distinction between the Statesand the organizations which negotiated a multilateraltreaty and to state that certain reservations would bepermitted to one category of negotiating parties but notto the other. The second part of the amendment related


to a problem which could only arise at a later stage. Itcould not be dealt with appropriately in the presentcontext.35. His delegation could not accept the Soviet Unionamendment, which would create a special category ofprohibited reservations applicable only to internationalorganizations. It had a similar difficulty with regard tothe German Democratic Republic's amendment, whichwould have the effect of allowing an international or-ganization to make reservations only with regard toprovisions that affected its competence. It was un-desirable to introduce that restriction into the organiza-tion's right to make reservations.36. Mr. REIMANN (Switzerland) said that the SovietUnion and German Democratic Republic amendmentscalled for three observations. First, article 19 shouldreflect the principle of the equality of parties to a treaty.Secondly, and in view of that equality, any referenceto the rules of an international organization was un-called for. Thirdly, care should be taken with theterms employed in the draft. The reference in the Ger-man Democratic Republic's amendment to an organiza-tion's "competence" seemed inadvisable. On the basisof those considerations, his delegation believed that theamendments should not be transmitted to the DraftingCommittee.37. The same remarks applied to the second partof the Cape Verde amendment. His delegation wouldwish to consider the text of any subsequent variantbefore agreeing that it should go to the Drafting Com-mittee.38. With regard to the four-Power amendment, henoted that a consensus seemed to be emerging in favourof its acceptance and transmission to the Drafting Com-mittee. His delegation would not oppose that step, butregretted that the member of the sentence in subpara-graph (a) of paragraphs 1 and 2 following "treaty"would vanish, because it had its raison d'etre, as borneout by the examples given by the Expert Consultant aswell as, in another context, by article 60, paragraph 5,of the 1969 Vienna Convention.39. He had noted with interest the example of agree-ments of a certain type cited by the Expert Consultant.40. Mr. HARDY (European Economic Community)considered that it was up to the international organiza-tion to decide whether to make reservations, within thesame limits as States. It was not for others to attemptvia the proposed convention to determine whether itwas entitled under its own powers and procedures to doso. If an organization made a reservation, the otherparty, whether a State or an organization, might acceptor object in accordance with article 20.41. Some of the amendments submitted would lead toconfusion. The German Democratic Republic's amend-ment, for example, apparently envisaged a further stagedistinct from the article 20 procedure.42. The basic principle of the Commission's draft wasthat treaties were concluded on a contractual basis, andin his view it was not possible to distinguish betweenthe rights of the parties. Suppose, for example, therewas an agreement to which States and the Communitywere parties in the commercial field. It would not be

possible for a State party to be able to make moreextensive reservations than the Community, or to raisequestions regarding its right to make reservations onthe same basis. As the United Kingdom representativehad said, the assumption must be that internationalorganizations did indeed act within the scope of theirpowers.43. The International Law Commission's text wasbasically acceptable because it reflected the equality ofthe parties, a principle that would be undermined bysome of the amendments. The four-Power amendmentand the first part of the Cape Verde amendment wereacceptable. The Soviet Union and German DemocraticRepublic amendments and the second part of the CapeVerde amendment were unacceptable to the Commu-nity for the reasons he had indicated. Sufficientsafeguards for the interests of other parties were, hebelieved, contained in other provisions of the draftarticles.44. Mr. SANG HOON CHO (Republic of Korea)shared the view that the provision in the second part ofsubparagraph 1 (a) should be deleted. Having heard theExpert Consultant and the Austrian representative, hebelieved that the type of situation envisaged by thatprovision could be reflected, as required, in specifictreaties.45. His delegation could not accept the variousamendments seeking differential treatment of interna-tional organizations in the matter of reservationsthrough the provisions of paragraph 2. The safeguardprovided in subparagraph 2 (c) appeared to be ade-quate.46. MR. ROMAN (Romania) said that his delegationhad no difficulty with the draft article. It had doubtsabout those proposals which seemed to amend the twoparagraphs in a way that enlarged the scope for theformulation of reservations by States. He agreed withthe argument that whenever negotiating States andnegotiating organizations were agreed, not in the treatybut elsewhere, that reservations were prohibited, thepossibility of formulating reservations should beexcluded.47. His delegation supported the Cape Verde, SovietUnion and German Democratic Republic amendments.International organizations should only be able to makereservations on matters, within their fields of activity.They should not be able to make reservations whoseconsequences would affect contracting States. Hehoped the three amendments could be combined andincorporated in the article.48. Mr. ECONOMIDES (Greece) said that his del-egation was in favour of the provision which the four-Power amendment and the first part of the Cape Verdeamendment sought to delete. It saw virtue in a pro-vision that would have the effect of making the tacitformulation of reservations impossible. He believedthat, as far as States were concerned, there were gaps inthe 1969 Convention. He would not, however, opposetransmission of the amendments to the Drafting Com-mittee if the great majority of the Committee so wished.49. The Soviet Union amendment proposed to insert aclause providing that an international organization


should not formulate a reservation incompatible withits constituent instrument. But that surely was self-evident. International organizations must in all casesact in conformity with their own constituent instru-ments and rules. Moreover, application of such a pro-vision would prove difficult, indeed impossible, be-cause no constituent instrument determined expresslyor implicitly what possible reservations would be in-compatible with an organization's constitution. It wasup to the organization itself to ensure that reservationswere in conformity with its law. In any case, article 6already implicitly contained the notion embodied in theproposed amendment, the adoption of which, as theUnited Kingdom representative had remarked, couldresult in further complications.

50. The second part of the Cape Verde amendmentand the German Democratic Republic amendmentseemed to address themselves to the same concern,that an international organization should not enter res-

ervations concerning provisions that were not appli-cable to it. Again, that seemed to go without saying:Why should an organization enter a reservation toexclude the application of a provision not applicable toitself? But if the question proved to be more than aca-demic, and a reservation of the type envisaged wasmade, what would be the legal consequences? Theeffect would merely be to double the inapplicabilityof the provisions in question to the organization con-cerned.51. The CHAIRMAN suggested that the Cape Verde,German Democratic Republic and Soviet Union rep-resentatives should consult together with a view tomerging their proposals for paragraph 2, which couldnot be referred to the Drafting Committee since theyinvolved matters of substance, in a single text for fur-ther consideration by the Committee of the Whole.


12th meetingThursday, 27 February 1986, at 3.25 p.m.





Article 19 (Formulation of reservations) (continued)

1. Mr. NAGY (Hungary) said that his delegationshared the views of the sponsors of the amendmentsconcerning the special limitations to which the capacityof international organizations to formulate reservationswas subject proposed by Cape Verde (A/CONF.129/C.1/L.34), the Union of Soviet Socialist Republics(A/CONF.129/C.1/L.38) and the German DemocraticRepublic (A/CONF.129/C.1/L.40). It was clear fromthe discussions in the International Law Commissionon the whole process of treaty-making that the capacityof international organizations to formulate reservationsto a treaty could not be greater than their capacity toconclude the treaty itself. The amendments reinforcedthat well-established principle by defining the capac-ity of international organizations to formulate reserva-tions. His delegation would, however, prefer a moregeneral expression to cover the sources of that capac-ity than that used in the Soviet Union amendment.Accordingly, it suggested that "constituent instrumentof the international organization" should be replaced

by "rules of the organization", an expression defined inarticle 2, subparagraph 1 (/)•2. Mr. VAN TONDER (Lesotho) said that his delega-tion considered the Internationa] Law Commission'sdraft of article 19 satisfactory, since it allowed forinvestigation of the intention of the negotiators of atreaty, through reference to considerations such as thepreparatory documents, in the absence of any clearprovision in the treaty itself. The latter parts of sub-paragraphs 1 (a) and 2 (a) provided that essential flexi-bility which existed in the general rules concerning theinterpretation of treaties. Paragraph 2 of the CapeVerde amendment was difficult to understand, sinceinternational organizations would obviously not for-mulate reservations to treaty provisions that did notaffect them. Even if an organization were to do so, theaction would be without legal significance, since theorganization would remain unaffected.

3. Regarding the amendments put forward by the So-viet Union and the German Democratic Republic, hisdelegation believed that it was absurd to provide thatinternational organizations should have the capacity tonegotiate a treaty but no right or capacity to formulate areservation in regard to certain parts of that treaty, ifthe treaty permitted reservations. Any restrictions onthe formulation of reservations should be those im-posed by the treaty itself. If an international organiza-tion agreed to a treaty which forbade it to formulatereservations, it would of course be bound by it. On theother hand, if a treaty provided for reservations, aninternational organization, as a negotiator of equalstatus, should have the same right as the other parties toformulate reservations if it so desired. As the repre-


sentative of the European Economic Community hadpointed out at the previous meeting, the Committee wasdiscussing a contractual relationship voluntarily nego-tiated and entered into, and if one of the parties felt thatit was being shortchanged it would not agree to theprovision in question. The provision would thus beignored and the question would become academic atbest, as the representative of Greece and the ExpertConsultant had noted at the previous meeting.4. His delegation was unable to support any of theproposed amendments. It would endorse the draftproposed by the International Law Commission, on theunderstanding that the problem regarding the words"formally confirming" in paragraph 2 would be re-solved.5. Mr. CANCADO TRINDADE (Brazil) said that itwould be helpful if a single formulation could perhapsbe found for the amendments introduced by CapeVerde, the Soviet Union and the German DemocraticRepublic, all of which were intended to qualify thefreedom of international organizations to formulate res-ervations. He regretted that it had not yet been possiblefor those delegations to submit a joint amendment.With regard to the amendment of the Soviet Union, hefound it difficult to envisage the likelihood of an inter-national organization—or, more precisely, one of itsorgans—formulating a reservation that was not com-patible with its constituent instrument, or with its rulesor established prctice. The amendment proposed bythe delegations of Austria, Italy, Japan and Tunisia(A/CONF.129/C.1/L.36), which, for the sake of clarityand precision reverted to the formula in the 1969 ViennaConvention on the Law of Treaties,1 was acceptable.He noted that there appeared to be no strong oppositionto that proposal.

6. Mr. FOROUTAN (Islamic Republic of Iran) saidthat his delegation fully supported the draft articleproposed by the International Law Commission, as itwas clear, precise and unambiguous. The four-Poweramendment proposed that the latter part of subpara-graph 1 (a) should be deleted in order to make it clearthat, for the purposes of the subparagraph, reservationswere strictly prohibited. There might be circumstancesin which reservations were not explicitly prohibited,but there might be an understanding to that effectamong the negotiating States and international organ-izations. He would have difficulty, therefore, in sup-porting the joint amendment or paragraph 1 of theamendment of Cape Verde. However, if there was aconsensus in the Committee of the Whole to send thoseamendments to the Drafting Committee, his delegationwould not object.

7. He fully supported the objective of the second partof the amendment of Cape Verde, but the proposedsubparagraph needed to be clarified and brought intoharmony with the rest of the article. The formulationin the Soviet Union amendment corresponded moreclosely to the preceding subparagraphs of the article,but it did not cover the whole scope of the amendment


of Cape Verde. His delegation could, however, supportboth of those amendments.

8. Mr. CAMINOS (Organization of American States)said that his organization could not support thoseamendments which tended to restrict the capacity ofinternational organizations to formulate reservationsto multilateral treaties to which they were parties or toenter objections to reservations formulated by otherparties. As the Expert Consultant had pointed out at theprevious meeting, such restrictions impaired the equal-ity of legal status that should exist between all parties toa treaty. His organization shared the views expressed atthe previous meeting by the representatives of Austria,the Council of Europe and the European EconomicCommunity regarding the proposed amendments to ar-ticle 19. In particular, it wished to express its con-cern regarding the difficulties that might arise fromthe incorporation into the convention of the criterionof compatibility of reservations with the constituentinstruments of international organizations. In sum, itsupported the text proposed by the International LawCommission.

9. Mr. VASSILENKO (Ukrainian Soviet SocialistRepublic) said that a number of delegations appeared toobject to the amendments proposed by the SovietUnion, the German Democratic Republic and CapeVerde. They stressed the need to preserve equalitybetween States and international organizations in thematter of formulating reservations. In their view, theamendments proposed would prevent international or-ganizations from exercising their right to make reserva-tions. However, that was a somewhat simplistic andunilateral approach.

10. During the discussion of articles 2, 5 and 6, alldelegations had recognized that international organiza-tions were a derivative subject of international law witha special treaty-making capacity, that of concludingtreaties which fell within the scope of their aims andfunctions. An important element of that capacity wasthe right to formulate reservations. That was a concreteright which must be implemented, but within the scopenecessary for the pursuit of their aims and the exerciseof their functions, and not on an equal footing withStates. That was the fundamental difference betweenthem.

11. A distinction should be drawn between the ma-terial and the procedural aspects of the problem. On theprocedural plane, as parties to a treaty internationalorganizations and States were truly equal. On the ma-terial plane, however, that equality was not present.States enjoyed a broad universal right under interna-tional law to enter reservations. Since internationalorganizations could formulate only such reservationsas were compatible with their field of competence andtheir constituent instrument, that situation should bereflected in the article. The amendments attempted todo that and to draw a clear distinction between the pow-ers of States and those of international organizations.

12. The representative of the United Kingdom hadsaid at the previous meeting that he knew of no cases inwhich international organizations had formulated res-ervations outside the framework of their functions and


contrary to their respective charters. While such casesmight not yet have arisen, there were established casesin which international organizations had acted counterto the provisions of their constituent instruments. Toproceed on the presumption of the absolute innocenceof international organizations took no account of re-ality. The merit of the amendments of the Soviet Unionand the German Democratic Republic was that theywere a means of preventing international organizationsfrom formulating reservations that went beyond theirfield of competence and contravened their constituentinstruments. He hoped that it might be possible tocombine the proposals and to present a consolidatedamendment to article 19 which would not limit the rightof international organizations to formulate reservationsbut would take due account of their special status inregard to such reservations.

13. Mr. JESUS (Cape Verde) said that he would try toanswer the questions raised in connection with his del-egation's proposed addition of a new subparagraph toarticle 19. The representative of the United Kingdomhad said that a special case could not serve as a basis fordrawing up a general rule. He believed that the case hehad posited was not a special case but one that didoccur, and that a provision should therefore be drawnup to cover it. If that was not done, difficult problems ofinterpretation could arise. The representative of theUnited Kingdom had also said that the good faith ofinternational organizations could be relied on not toformulate reservations to provisions which did not ap-ply to them. The same could be said to apply to States,but language must, nevertheless, be provided to takecare of such situations.

14. He believed that the proposed addition of thesubparagraph was useful, particularly with regard tothe possible effect of article 20, paragraph 5. If therewas an explicit provision saying that an internationalorganization could not formulate a reservation to aprovision that did not aply to it, States would not haveto decide whether to accept or reject the reservation,and the tacit acceptance effect of paragraph 5 would beneutralized.

15. Other amendments had been proposed whichsought to deal with the matter through different lan-guage. His delegation would not favour any wordingwhich made the formulation of reservations dependenton conformity with the rules of the organization or itsconstituent instruments. In his view, the capacity toformulate reservations should be measured not againstthe rules of an international organization or its con-stituent instruments but against the applicability to thatentity of the provision which was the object of thereservation. His delegation's proposal would applyonly to treaties between States and international or-ganizations, and not to those between internationalorganizations. The case he had in mind could occur,and although he was ready to compromise, he felt thatthere was a place in the convention for his delegation'slanguage.

16. Mr. VIGNES (World Health Organization) saidthat he understood the effect of the amendments pro-posed by the Soviet Union and the German DemocraticRepublic to be that an organization would be unable to

formulate reservations if it was unconstitutional for it todo so. As a number of representatives had pointed out,that would not in practice make a significant difference.It was highly unlikely that his own organization wouldformulate any reservations at all to treaties to which itwas a party, and that it would do so in violation of itsConstitution was inconceivable. The substance of bothamendments could be understood as expressing a lackof confidence in international organizations. As far asthe World Health Organization was concerned, thatwould be tantamount to expressing a lack of confidencein its Assembly, consisting of 160 sovereign States,which would presumably be the organ deciding on areservation.

17. A further aspect that should be considered was thestate of uncertainty that could arise, theoretically atleast. Normally, questions concerning the invalidity ofa reservation under the other provisions of article 19would be raised promptly by the depositary or by an-other party. Article 20 also imposed certain limitationson objections to reservations. However, compatibilitywith the constitution of an international organizationcould depend on complex legal interpretations. Thequestion of unconstitutionally might be raised onlyafter a number of years, when the international organ-ization might already have invested much time andeffort in performing its obligations, for example under atechnical co-operation agreement, and a host of bilat-eral agreements might then have been concluded withinthe framework of the technical co-operation agree-ment. It was not clear what the legal consequenceswould be if the reservation was suddenly invalid aftersuch a lapse of time.

18. Mr. RASOOL (Pakistan) said that, in his delega-tion's view, the amendments of Cape Verde, the SovietUnion and the German Democratic Republic did notseek to place new limitations on the right of inter-national organizations to formulate reservations or tolower the status of such organizations. It felt that thestatus and the equality of international organizationswould not be adversely affected by the amendments.There was, however, a fundamental difference betweenarticle 6 of the 1969 Vienna Convention and article 6 ofthe present draft: the latter contained an encumbranceabsent from the former. That encumbrance might beregarded by international organizations, and by someStates, as an evil, but it was an unavoidable evil whichran through a number of situations that had alreadybeen covered and some that still remained. Wheneveran international organization negotiated a treaty or be-came a party to a treaty, it was subject to that encum-brance, in other words, to conformity with its ownrules.

19. The amendments he had mentioned issued a re-minder to international organizations of their ownstatus and limitations, namely, the requirement of con-formity to their rules. Their approach might seem to beover-cautious and to display a certain suspicion thatwas disliked by some delegations, but his delegationwould have no insurmountable difficulty in acceptingthose amendments, particularly with the drafting im-provements which, at the previous meeting, the rep-resentative of the German Democratic Republic had


offered to make. He noted, however, that the amend-ments had a bearing, however remote, on the questionof the settlement of disputes and on article 20, para-graph 5.20. On the whole, his delegation favoured the Inter-national Law Commission's draft. It was, however,prepared to accept the substance of the three amend-ments, possibly in the form of a combined and redraftedtext.

21. Mrs. THAKORE (India) said that article 19 dealtwith a very difficult but important matter which hadgiven rise to widely divergent opinions in the SixthCommittee of the United Nations General Assemblyand in the written observations of governments andinternational organizations. It had also been the subjectof lengthy debate in the International Law Commis-sion. The compromise text finally adopted by the Com-mission adopted a liberal approach that granted inter-national organizations, as the contracting parties to atreaty, the same rights as were enjoyed by States.22. Her delegation was therefore unable to accept theamendments of Cape Verde, the Soviet Union and theGerman Democratic Republic, which tended to imposeundesirable restrictions on the power of internationalorganizations to formulate reservations, restrictionsthat would not only give rise to insurmountable difficul-ties but also reflected a lack of confidence in inter-national organizations. Her delegation, like that of theUnited Kingdom, found it difficult to conceive of asituation in which an international organization wouldformulate reservations that were incompatible with itsconstituent instrument, which was fundamental in na-ture and constituted the organization's supreme law. Ittherefore supported the present text of article 19 of theCommission's draft, as modified by paragraph 1 of theCape Verde amendment, and the four-Power amend-ment to subparagraphs 1 (a) and 2 (a) of the article.

23. Ms. KASHUMBA (Zambia) said that amend-ments such as those of the Soviet Union and the Ger-man Democratic Republic could create problems ofinterpretation: an international organization became aparty to a treaty in accordance with the rules of itsconstituent instrument. It would be monotonous to re-fer to those rules every time the question of the organ-ization's competence arose. In her view, the matter wasadequately covered in article 6. Her delegation wastherefore unable to support those two amendments.24. Mr. DALTON (United States of America) saidthat if language similar to that proposed in the CapeVerde amendment for subparagraph 2 (d) was insertedinto paragraph 1, the provision would become patentlyridiculous; no State would formulate a reservation on aprovision which did not apply to it. The hypothesis wasequally absurd in the case of an international organiza-tion, and the wording proposed was therefore inap-propriate in an international convention.

25. The amendments of the Soviet Union and theGerman Democratic Republic were on the commontheme of reservations incompatible with the constit-uent instrument of an international organization. Suchwording would compel the States party to a treaty toform a judgement as to whether or not reservations

formulated by international organizations which werealso parties were in conformity with their constituentinstruments. National legal advisers on treaty mattersdid not have the knowledge to address that task. Suchamendments were mischievous and should be rejected.

26. Mr. RIPHAGEN (Netherlands) said that he couldaccept the four-Power amendment, which returned tothe formulation used in the Vienna Convention on theLaw of Treaties, provided there was also a return inarticle 20, paragraph 2, to the formulation in the corre-sponding article 20, paragraph 2, of that Convention, asthe two provisions were linked.

27. On the matter of reservations, he referred theCommittee to the definition in article 2, subpara-graph 1 (d), which described a reservation as "aunilateral statement . . . made by a State or by aninternational organization . . . whereby it purports toexclude or to modify the legal effects of certain pro-visions of the treaty in their application to that State ororganization". That meant that a reservation could bemade only in respect of a party's own obligations. Itwas impossible to make distinction between States andinternational organizations in the matter, and he wasopposed to any amendment which sought to do so.

28. Mr. MORELLI (Peru) said that the InternationalLaw Commission's draft of article 19 tended to equatethe legal position of States and international organiza-tions with respect to the formulation of reservations.However, without prejudice to the rule concerning thecontractual equality of parties to treaties, the Commis-sion's draft in several other places did take account ofthe differences between international organizations andStates. While his delegation did not wish to commentspecifically on any of the amendments to article 19, itwould be glad if the Drafting Committee were to givethought to means of differentiating between the fullsovereign powers of States and the possibly limitedcompetence of international organizations with respectto the formulation of reservations.

29. Mr. RAMADAN (Egypt) asked whether it wasconceivable, in the case of a State formulating reser-vations to a treaty, that other States would attemptto argue that the reservations were incompatible withthat State's constitution. Such conduct would be re-garded as interference in its internal affairs. If Statesand international organizations were equal partnersin treaty-making, it was illogical to have a provisionstating that reservations by international organizationsmust be compatible with their constituent instruments.The point was adequately covered by article 6, and anyreiteration showed mistrust of the good faith of inter-national organizations and was tantamount to imposingan external censorship on their decision-making.

30. Mr. KHVOSTOV (Byelorussian Soviet SocialistRepublic) said that some delegations had expressedconcern that the changes proposed in paragraph 1 of theCape Verde amendment and in the Soviet Union andGerman Democratic Republic amendments were de-signed to impair the capacity of international organiza-tions to conclude treaties. Those amendments shouldnot be understood as restricting the right of interna-


tional organizations to formulate reservations. Thatright was secured in article 19, paragraph 2, and no onewould call it into question.31. Cases in which international organizations couldnot formulate reservations were not fully taken intoconsideration in subparagraphs (a), (b) and (c) of arti-cle 19, paragraph 2. The amendments he had just citedfilled that gap and indicated another important case:when a reservation was incompatible with the con-stituent instrument of an international organization.

32. During the discussion of article 6 an understand-ing had been reached that the treaty-making capacity ofan international organization was determined by itsrules. The rule on formulating reservations was one ofthe elements of that general treaty-making capacity, assometimes reservations put forward could have seriouslegal consequences, for example, in differing with theintentions of parties to a treaty or in departing from theinternational organization's framework of competence.33. His delegation considered it logical for article 19,paragraph 2, to maintain the provision reflecting theneed for the substance of reservations to be in confor-mity with the provisions of the constituent instrumentof the international organizations.34. Mr. ALMODOVAR (Cuba) proposed to pass overin approving silence the changes proposed in para-graph 1 of the Cape Verde amendment and in the four-Power amendment. With regard to the proposed chan-ges in paragraph 2 of the Cape Verde amendment andthe Soviet Union and German Democratic Republicamendments, he shared the view of their sponsors thata limit should be placed in the draft articles on thecapacity of international organizations. If a group ofStates or even a group of international organizations setup an international organization and gave it a con-stituent instrument conferring on it the widest powersunder international law, including that of treaty-making, it was clear that the other contracting partiesto any treaty to which that organization was also aparty would have to acknowledge its powers. What wasexcessive was that the International Law Commissionshould propose by means of a general rule to confersuch powers on all the international organizations so farestablished.

35. Mr. WOKALEK (Federal Republic of Germany)said that his delegation could not accept the amend-ments of the Soviet Union and the German DemocraticRepublic, which introduced a discriminatory element.The proposed convention was intended to provide atreaty-making environment for States and internationalorganizations, and it was unfair to limit the powers ofone of the two categories of entities. Furthermore,there was no practical reason for attempting to do so,and he fully endorsed the comments of the UnitedKingdom representative on the subject at the prev-ious meeting. His delegation could support the modi-fication proposed in paragraph 1 of the Cape Verdeamendment.

36. Mr. AL-JUMARAD (Iraq) said that he had no dif-ficulty with the International Law Commission's textand could accept the four-Power amendment for thereasons already given by previous speakers.

37. Mr. WANG Houli (China) said that the Commis-sion's text was acceptable to his delegation. With re-gard to paragraph 1 of the Cape Verde amendment andthe four-Power amendment, he understood from theexplanation given by the Expert Consultant at the prev-ious meeting that no harm would be caused by thedeletions in subparagraph (a) of paragraph 1 and 2 ofarticle 19 which both those amendments proposed. Hisdelegation was therefore prepared to accept them. Hehad no strong objection to the amendments of the So-viet Union and the German Democratic Republic, buthe felt that the reference to the constituent instrumentof an organization was unnecessary.

38. Mr. SKIBSTED (Denmark) said that the Inter-national Law Commission's draft, perhaps amended asproposed in the four-Power amendment, would ensurea reasonable balance between States and internationalorganizations by establishing approximate equality inthe formulation of reservations. The amendments ofthe Soviet Union and the German Democratic Repub-lic seemed to involve undesirable restrictions on thepowers of international organizations. For the reasonsalready stated by the United Kingdom representative,those amendments were not acceptable to his del-egation.

39. Mr. KANDIE (Kenya) supported the proposedreformulation in paragraph 1 of the Cape Verde amend-ment. His delegation had no quarrel with the view thatfor purposes of treaty-making, States and internationalorganizations had of necessity to be treated on an equalbasis. However, he wondered whether there should notbe different rules for international organizations on thequestion of formulation of reservations and on othermatters if there was agreement in a conference on thecodification of international law that decision-makingpowers should be vested only in States.

40. On the question of the formulation of reserva-tions, his delegation had some sympathy with the Inter-national Law Commission's draft, for reasons whichhad been well explained by the United Kingdom rep-resentative. The likelihood of an international organ-ization formulating a reservation of the type that theamendments of the Soviet Union and the German De-mocratic Republic were designed to prevent seemedvery remote. If that did occur, articles 20,21,22 and 23,dealing with objections to reservations, could resolvethe problem.

41. Mr. GER VAS (Spain) said that his delegation me-rely wished to reiterate its support for uniform termi-nology for both States and international organizations,particularly with regard to the ratification of treaties. Italso supported the proposals submitted in paragraph 1of the Cape Verde amendment and in the four-Poweramendment.

42. Mr. KOTSEV (Bulgaria) said that the issue offormulation of reservations by international organiza-tions was a new one. The text adopted must be suf-ficiently broad to cover a variety of cases. A distinctionhad to be made between States and international organ-izations because their capacity to formulate reserva-tions was not equal. A State could formulate or refrainfrom formulating reservations for political, economic


or social reasons. An international organization, on theother hand, had no such choice, since its grounds forthe formulation of reservations were based on its rulesand limited by its competence. As the representativeof Greece had pointed out at the previous meeting,the amendments of the Soviet Union and the GermanDemocratic Republic dealt, in fact, with a self-evidentsituation. He failed to understand why there was suchopposition to inserting a provision which stated the ob-vious. The wording proposed in the Soviet amendmentwas in his view sufficiently flexible. He would supportsome compromise formulation between that text andthose in paragraph 2 of the Cape Verde amendment andin the German Democratic Republic amendment.

43. The CHAIRMAN, summing up, said that thereappeared to be general acceptance of the amendmentproposed by Austria, Italy, Japan and Tunisia and ofparagraph 1 of Cape Verde's proposal, while the fewdelegations which had been somewhat reluctant toabandon the Commission's draft had made it clear thattheir position would not hamper the Committee's ap-proval of the amendments. On that understanding,therefore, he proposed that those amendments, as re-vised, should be considered accepted and referred tothe Drafting Committee, together with the Commis-sion's draft of article 19 up to and including subpara-graph 2 (c). The proposed new subparagraph 2 (d) was amatter of substance, and the decision on it should bepostponed to allow the delegations of Cape Verde, theSoviet Union and the German Democratic Republictime to explore ways of embodying the basic idea oftheir amendments into a single text which could bediscussed later by the Committee. That text should takethe form of an overall rule which would apply through-out the draft article.

It was so decided.44. The CHAIRMAN said he believed the Committeeshould also bear in mind the observation made by therepresentative of the Netherlands that article 20 shouldbe brought into line with article 19. He suggested thatthe representative of the Netherlands should submit aspecific proposal in that regard.

Article 20 (Acceptance of and objection to reser-vations)

45. Mr. WANG Houli (China), introducing the amend-ment proposed by his delegation (A/CONF.129/C.1/L.18), said that it had been submitted in an effort toprovide an equal and reasonable time-limit for the ob-jections of States and international organizations toreservations.46. Paragraph 5 of article 20 established a 12-monthtime-limit for objections by States but made no prov-ision for objections by international organizations,even though paragraph 2 of the article stated that "areservation requires acceptance by all the parties". If atime-limit were not established for international organ-izations, then treaties to which international organiza-tions were parties would be left in a state of perpetualuncertainty. Such a defect would give internationalorganizations the privilege of raising objections at anytime they wished, and was not conducive to the proper

observance of treaties. The Chinese delegation there-fore considered that States and international organiza-tions should be given the same time-limit for raisingobjections to reservations.47. Since the organs of international organizationscompetent to accept reservations might not meet everyyear, and since the practice in any case varied from oneinternational organization to another, a 12-month time-limit might not be sufficient for some. The Chinesedelegation had therefore proposed an 18-month time-limit for both States and international organizationsalike. If the competent organs of an international organ-ization did not meet in that period, then a standing bodycould be empowered to deal with the matter.48. Mr. HERRON (Australia), introducing his delega-tion's amendment (A/CONF.129/C.1/L.32), said thatits purpose was to fill a gap consciously but unaccept-ably left open in the draft text by the International LawCommission. Since the proposal dealt only with para-graph 5 of article 20, it followed that Australia found theother paragraphs of the Commission's draft satisfac-tory.49. The Commission in paragraph 5 had reproducedparagraph 5 of article 20 of the 1969 Vienna Conventionon the Law of Treaties, and his delegation wished tokeep that rule intact for States within the present draftconvention. The Commission had not, however, for-mulated a parallel rule for international organizations,the principal reason for not doing so being concern atthe administrative difficulty some organizations mighthave in organizing responses to reservations within oneyear.

50. The administrative difficulties for organizationswere indeed real, particularly for those which werescrupulous in submitting questions of treaty obligationsfor decision to their competent organs but which coulddo so only infrequently because of extended periodsbetween meetings of those organs.51. The Australian delegation did not regard adminis-trative difficulties as a sufficient reason for not placingorganizations on the same footing as States with regardto tacit acceptance of reservations. Not to treat organ-izations equivalently was to leave them in a favouredsituation compared with States, and was a departurefrom the principle of accountability of organizations.52. The adjectival rule in paragraph 5 of article 20 ofthe 1969 Vienna Convention had greatly simplified themanagement of reservations for the treaty departmentsof Foreign Offices and for depositaries, and had madethe extent of substantive obligations more certain. Alike provision for organizations would also be useful.That view appeared to be generally held by a number ofStates and organizations, as was shown by commentssubmitted to the International Law Commission andother proposals relating to paragraph 5. Some of thoseproposals were simpler and more direct than Austra-lia's. China's proposal did not appeal to his delegation,however, as it prescribed a different period for tacitacceptance of reservations by States than obtained forthem under the 1969 Vienna Convention.

53. Australia would favour a simple, direct solution,provided it was convinced that the solution was aprac-


tical one. Because it was not yet convinced of thepracticality of fixed-term solutions, it had proposed amore elaborate scheme under which organizations, likeStates, should have 12 months in any case in which toobject to a reservation and, like States, should have thefull period to the date when they expressed consent tobe bound by the treaty, which might be a date later than12 months from when they were notified of the reserva-tion. Additionally, to obviate administrative difficultiesentirely, an organization would have a period of up toone month after the next meeting of its competent organafter notification of the reservation in which to raiseobjection to the latter. That period could in some casesbe longer than 12 months and in others end after thedate on which the organization expressed consent to bebound by the treaty. In all cases, however, there wouldbe adequate opportunity for the competent organ todeal with a reservation, and the position of the organ-ization would be made certain either by its objection orby consent implied by expiry of the relevant period.Furthermore, although the maximum period involvedwould vary from organization to organization, it wouldbe a simple matter in the case of any organizationto establish whether a given reservation had been ac-cepted tacitly, by verifying the date of the last meetingof the competent organ.

54. One small improvement to the Australian pro-posal had been suggested privately, namely, thedeletion of the word "plenary" from its subpara-graph 5 (b) (ii). The intended meaning was adequatelyestablished by the reference to "competent" organ.For some organizations the organ competent to dealwith treaty questions would not be the plenary organ,and use of the adjective might cause confusion. Theamendment should therefore be modified accordingly.55. The Australian delegation was well aware that itsproposal was an elaborate one, but it regarded thesolution as practical and believed it was the only onebefore the Committee that was practicable for all organ-izations. In that regard, the views of the organizationsparticipating in the Conference should be taken intoaccount. If their needs could be met by a simpler ruleacceptable to the Committee, the Australian delegationwould be only too pleased to withdraw its proposal.56. Mr. TUERK (Austria), introducing his delega-tion's amendment (A/CONF. 129/C.l/L.33), said thatapart from paragraphs 2 and 5 of article 20, Austriafound the Commission's draft satisfactory. With regardto paragraph 2, whereas the Commission's draft re-ferred only to the object and purpose of the treaty, thesame paragraph in the 1969 Vienna Convention referredalso to a limited number of negotiating States. Hisdelegation saw no reason to modify the rule laid down inthe 1969 Vienna Convention to enlarge the scope ofparagraph 2. On the contrary, it considered that the twotexts should be harmonized as far as possible.

57. The Austrian delegation saw no reason to make adistinction between States and international organ-izations in paragraph 5, notwithstanding the practi-cal difficulties which might be involved where inter-national organizations were concerned. A 12-monthperiod could also be applied to international organiza-tions, since all of them had organs of limited composi-

tion which were empowered to act on behalf of theorganization in such matters and were convened at leastonce a year.58. Mr. JESUS (Cape Verde) said that his delega-tion's proposal (A/CONF. 129/C. 1/L.35) had been sub-mitted for reasons similar to those given by Austria.The article should be based on the principle of reci-procity. If after 12 months acceptance of a reservationby a State was implicit, the same period should alsoapply in the case of international organizations, not-withstanding possible internal difficulties. His delega-tion could therefore support the Austrian proposal.

59. The Chinese and Australian proposals were insome degree similar, but the open-ended period sug-gested by Australia was unacceptable. If the Confer-ence were to accept the proposed 18-month period, itshould provide a safeguard clause such as that sug-gested by his delegation whereby the present draft con-vention would not prevail over the 1969 Vienna Con-vention, because, when it came to relations betweenStates, the two periods would conflict.

60. Mr. ULLRICH (German Democratic Republic)said that his delegation's amendment (A/CONF. 129/C.1/L.41) was a logical consequence of its amendmentto paragraph 2 of article 19. The fundamental con-clusion should also be valid mutatis mutandis, and tothe same degree, for acceptance of and objection toreservations by international organizations. The dif-ferentiation was not made clear enough in article 20,and his delegation's two proposals were designed toeliminate any uncertainty or doubt. The purpose ofthe proposed addition was to make clear that whatwas required was acceptance of the reservation by allStates and by all affected organizations, according toparagraph 2 of article 19. The same consideration hadprompted his delegation to propose an amendment toparagraph 4, subparagraph (b). Since throughout thedraft convention the provisions relating to States andthose relating to international organizations were gen-erally kept separate, his delegation deemed it appro-priate from the standpoint of both substance and formto deal separately with objections by States and objec-tions by international organizations. The second part ofhis delegation's amendment was of a drafting natureand might be referred to the Drafting Committee.

61. The CHAIRMAN said that the Committee wouldhave to decide whether the phrase "pursuant to therules of those organizations" in the amendment pro-posed by the German Democratic Republic should beincluded in article 19. If it did so decide, the phrasewould automatically be included in article 20. If theCommittee decided not to include it in article 19, then itwould not appear in article 20. He therefore suggestedthat the Committee, in the course of its debate, shouldnot touch upon that issue for the time being.

62. Mr. MORAWIECKI (Poland) said that the issuesdealt with in article 20 were highly controversial. In the1969 Vienna Convention the corresponding article 20on acceptance of and objection to reservations was insome respects less complex. His delegation thereforehad no wish to raise unnecessary difficulties, but ithad, in particular, doubts regarding the text of subpara-


graph 4 (c) and the wisdom of retaining in paragraph 3the exact wording of the 1969 Vienna Convention. Des-pite those misgivings, it would not, however, insist onany changes.63. Most of the amendments submitted concentratedon paragraph 5 of the article and reflected a commonconcern to establish time-limits within which an inter-national organization might raise objections to reser-vations. His delegation shared that concern, and wasinclined, after careful consideration, to support theamendments of Cape Verde and Austria, which estab-lished a time-limit of 12 months applicable both toStates and to international organizations.64. In the case of paragraph 2, the Austrian amend-ment and that of the German Democratic Republic hadthe common and unexceptionable aim of bringing thetext more closely into line with that of the 1969 ViennaConvention. The proposal of the German DemocraticRepublic deserved particular attention in that it reaf-firmed the crucial principle that an international organ-ization should strictly observe its own rules and actwithin its competence as affirmed by the consent of itsmember States. Adherence to that principle should notbe seen as lack of confidence in international organiza-tions, but as recognition of the need to establish limitsto their freedom of action. The proposal to include asafeguard provision was an attempt to contribute toconfidence-building between the organization and itsmember States. In that connection, he drew attention tothe fact that some delegations which were insisting onthe need to "trust" international organizations repre-sented Governments which had threatened to withdrawfrom certain international organizations.

65. Mr. BERMAN (United Kingdom) said that hewould refrain from commenting on the question oftrust between international organizations and memberStates except to say that those who made a fetish of theprinciple of sovereignty of States were often the first toexpress criticism of an international organization forabuse of that trust.

66. On the question of paragraph 5 of article 20, heagreed with previous speakers that the omission ofinternational organizations from the text was unfortu-nate, but he recognized the practical problems involvedin drafting a rule that would provide for tacit consentwithin a specific time-limit. He accordingly agreed withthe view expressed by the Commission in its commen-tary to paragraph 5 of the article.

67. After careful examination of the proposals sub-mitted by China, Austria and Cape Verde, his delega-tion had concluded that it would be best to apply thesame time-limit to States and to international organiza-tions, with the proviso that it should always be possiblefor an international organization to enter a precaution-ary objection to a reservation. That objection could bewithdrawn subsequently if the governing body of theorganization found it undesirable. In general, his del-egation favoured a 12-month time-limit, that being therule established in the 1969 Convention and in inter-national practice.

68. He could not concur with the Chairman's viewthat acceptance of the amendment to article 19 sub-

mitted by the German Democratic Republic impliedacceptance of its proposal to change article 20; the twoissues were not identical, and it was up to the Commit-tee of the Whole to work out a satisfactory solution. Inboth instances, it would be useful if the delegation of theGerman Democratic Republic could clarify the wordingof its amendments, which in their present form fell shortof their intended purpose.69. Mr. ADEDE (International Atomic EnergyAgency) said that the acceptance of objections to res-ervations was an area in which international organiza-tions had relatively little experience, since there hadbeen few occasions on which an organization had had torespond to reservations formulated in respect of a mul-tilateral treaty. In general, he felt that the Commis-sion's approach, which did not establish a time-limit foracceptance by an international organization of reserva-tions, was the correct one, although his own organiza-tion, the International Atomic Energy Agency, wouldhave no difficulty with the 12-month period which somedelegations had proposed as the time-limit for bothStates and international organizations. If there were tobe such a rule, however, he felt that the Australianproposal would provide the necessary flexibility forthose organizations whose policy-making organs wouldbe unable to act within a 12-month period.

70. Mr. SCHRICKE (France) said that article 20 wasbroadly acceptable to his delegation in the form sub-mitted by the International Law Commission. How-ever, both article 20 and article 19 gave rise to the sametechnical difficulties as had arisen in connection withthe corresponding articles of the 1969 Vienna Conven-tion. Those difficulties derived from the fact that thetext did not differentiate between the legal effect of areservation to which there were objections and a res-ervation with no objections. If, however, it was gen-erally agreed that such a differentiation was implicit inthe 1969 Convention, his delegation would not seek toraise the issue at the present Conference.

71. Virtually all the amendments proposed modifica-tion of paragraph 5, on which his delegation had no verystrong opinions. As formulated by the InternationalLaw Commission, the article did not exclude custom-ary rules, so that there was perhaps no need to imposeon an international organization a specific time-limit foracceptance of or objection to reservations.72. Mr. NEUMANN (United Nations IndusrialDevelopment Organization) said that he largely agreedwith the comments made by the representative of theInternational Atomic Energy Agency, but felt that,even if the text were left in its present form, there mustbe an implicit time-limit within which an internationalorganization could raise an objection to a reservation ifit were not to be considered as having acquiesced in thatreservation. The lack of a specific time-limit could giverise to legal uncertainties, but in establishing a rule,account must be taken of the constituent instruments ofthe various organizations. In the case of the UnitedNations Industrial Development Organization, forexample, the competent organ was the General Con-ference, which normally met every two years, althoughit could hold special sessions. The difficulty it wouldhave in complying with a 12-month time-limit would be

nth meeting—27 February 1986 107

shared by other organizations of the United Nationssystem. Accordingly, he favoured the flexible time-limit proposed by Australia in its amendment.73. Mr. VASSILENKO (Ukrainian Soviet SocialistRepublic) said his delegation supported the GermanDemocratic Republic's amendment, which developedthe reasonable concept set out in that country's amend-ment to article 19 (A/CONF. 129/C.1/L.40). Thoseamendments did not discriminate against internationalorganizations and in no way restricted their freedomto formulate and accept reservations and to object tothem. They only stated on a general plane the existingsituation, in which each international organizationcould formulate and accept reservations and object tothem only to the extent that they were in accordancewith the aims and functions established in its constit-uent instrument.

74. Equalizing, or creating a balance in, the com-petence of international organizations and States withregard to reservations, as representatives of severalcountries and international organizations had calledfor, would lead to an artificial and unwarranted level-ling of the status of the subjects of international law, sodifferent in their nature. Such an approach would con-tradict the declarations already made by delegations onthe inadmissibility of equalizing the international per-sonality of States and international organizations.75. Under that approach, international organizationswould be granted abnormally wide competence. Anyinternational organization could participate in the

elaboration of any international treaty, formulate res-ervations to it and accept or object to reservations.Thus international organizations, the number of whichfar exceeded the number of States, could block theefforts of States in the process of the creation of inter-national norms.

76. The concept of equalizing the competence ofStates and international organizations with regardto reservations contradicted the provision generallyacknowledged by general international law that a spe-cific international organization was competent to par-ticipate only in those treaties necessary for its own aimsand functions as defined in its constituent instrument,while a State possessed, on the strength of its sover-eignty, a legally unrestricted treaty-making capacityand decided independently questions as to when, howand with which subjects of international law, and onwhich issues, to conclude international treaties.

77. In the light of all this and in view of the effortsalready made in the Conference to equalize the status ofinternational organizations and States with regard toreservations, which was fraught with very dangerouspractical consequences, the German Democratic Re-public's amendment to article 20 was especially valu-able and timely. It fixed in a particularly economical,precise and clear way the existing general norm, re-flecting the specific right of international organizationson acceptance of and objections to reservations.


13th meetingFriday, 28 February 1986, at 11.20 a.m.





Article 20 (Acceptance of and objection to reserva-tions) (continued)

1. Mr. B ARRETO (Portugal) said that a firm belief inthe principles of equality, non-discrimination and rec-iprocity prompted his delagation to view with sym-pathy any attempt to secure identical treatment forStates and international organizations in regard tothe acceptance of reservations. That being said, herecalled that certain international organizations hadstated that for structural reasons they might have dif-

ficulty in taking a position on a reservation even with-in the reasonable time-limits proposed in the amend-ments of China (A/CONF. 129/C.l/L. 18) and Austria(A/CONF. 129/C.1/L.33) to paragraph 5 of the article.The more flexible proposal by Australia on that point(A/CONF. 129/C.1/L.32) seemed to leave a number ofproblems unsolved and might make the regime toorigid, and thus impracticable to apply. His delegationtherefore tended to favour the International Law Com-mission's draft of paragraph 5.2. The other part of the Austrian proposal soughtto introduce into paragraph 2 of the article, and inkeeping with the 1969 Vienna Convention on the Law ofTreaties,1 a reference to a limited number of negotiatingparties. The Austrian representative had made an inter-esting statement on the matter at the previous meeting,whereas the Commission's position was confined to agloss on paragraph (2) of its commentary to the article



(see A/CONF. 129/4, footnote 88), which the Portu-guese delegation considered insufficient. The ExpertConsultant's observations on the question would bewelcome.3. Mr. ZIMMERLI (International Maritime Organi-zation) said, with regard to paragraph 5, that his organ-ization tended to favour the Australian proposal, whichwould permit its Secretary General to seek the adviceof the Assembly as and when necessary. On the otherhand, it saw merit in the flexibility of interpreta-tion allowed for in the International Law Commission'sdraft.4. It had been argued that States and internationalorganizations should be treated uniformly. If that prin-ciple were adopted it would appear desirable, for thepurposes of legal certainty and clarity, to make thetime-limits for acceptance or objection reasonablyshort. His organization was fortunate that its execu-tive body, the Council, was empowered to take vir-tually all decisions between sessions of the Assembly,and would have no difficulty with either a 12-month oran 18-month period.

5. Mr. SANG HOON CHO (Republic of Korea) saidthat the omission of a reference to international organ-izations from paragraph 5 would have the effect oftreating them more favourably than States as far asdetermining their position on a specific reservation wasconcerned. Moreover, a number of major internationalorganizations had commented in writing or verballythat a 12-month time-limit neither posed serious dif-ficulties for them nor seemed inappropriate. It shouldbe possible to develop practice that would take ac-count of the problems faced by particular organiza-tions. His delegation therefore favoured the inclusionof the words "or an international organization" inparagraph 5, as proposed by Austria and Cape Verde(A/CONF. 129/C.l/L.35). It preferred the InternationalLaw Commission's draft for the remainder of the text.

6. Mr. HARDY (European Economic Community)said that the Community would find the InternationalLaw Commission's draft generally acceptable if a ref-erence to international organizations was inserted inparagraph 5, as proposed. Of the various proposals onthe time-limit and procedure involved, the Australianamendment went into the greatest amount of detail, buton balance it might be preferable to establish an iden-tical pattern for States and international organizations.The Community would agree to whichever of the pro-posals to that effect commanded the greatest support.

7. The amendment proposed by the German Demo-cratic Republic (A/CONF. 129/C.1/L.41) referred notonly to the rules of international organizations, an issuealready discussed in connection with article 19, but alsoto their competence, the Community believed that suchmatters should be handled in the context of the defini-tions clause; whether or not they should be reflectedin other articles was a matter of substance requiringexamination on its own merits.

8. Mr. KALANDA NGUAYILA (Zaire) said that theinclusion of a reference to international organizationsin paragraph 5, as proposed by Austria and Cape Verde,would make the International Law Commission's draft

comprehensive, balanced and equitable. Since theother proposals tended to complicate rather than im-prove the article, especially by sharpening the distinc-tion between States and international organizations,with regard to the time-limit for formulating reserva-tions, his delegation would have difficulty in acceptingthem.

9. Mrs. THAKORE (India), noting the Austrian pro-posal for the inclusion of a reference to a limited num-ber of negotiating parties in paragraph 2, said she foundit difficult to understand why the International LawCommission had considered such a reference unneces-sary. The Expert Consultant's views on that would behelpful.

10. The Commission had also refrained from ad-dressing in paragraph 5, to quote its commentary to thearticle (see A/CONF. 129/4, para. (6)), "the problemsraised by the protracted absence of any objection by aninternational organization to a reservation formulatedby one of its partners"; it had added that "practicewould have no great difficulty in producing remediesfor the prolongation of a situation whose drawbacksshould not be exaggerated". That did, nevertheless,leave a lacuna in the text, which various proposalsbefore the Committee sought to fill.

11. Her delegation had noted with interest the viewexpressed by international organizations in their writ-ten observations (see A/CONF. 129/5) that there was noreason to assume that organizations would not nor-mally be in a position to act as promptly as States; intheir view, a rule of tacit acceptance of a reservationupon the expiry of a specific period should be equallyvalid for international organizations. Some, however,considered that in certain cases the period of 12 monthsaccorded to States to object would be too short fororganizations. With those considerations in mind, herdelegation was inclined to favour the Australian amend-ment, which would allow a flexible approach to thematter.

12. Mr. REIMANN (Switzerland) observed that arti-cle 20 lay at the very heart of the legal regime of reserva-tions. Although the text before the Committee was notaltogether satisfactory—especially, as the representa-tive of France had pointed out at the previous meeting,with regard to the legal consequences of objections—itskinship with the 1969 Vienna Convention on the Law ofTreaties seemed to preclude its being modified at thepresent Conference. His delegation's concern wouldtherefore be to assist the Committee in arriving atthe least unsatisfactory draft under the circumstances.Like those delegations which had tabled formal amend-ments, it believed that paragraph 5 should establish atime-limit within which an international organizationmight formulate objections to reservations; to estab-lish such a limit would be to provide a useful legalsafeguard.

13. On the basis of the 1969 Vienna Convention, thelimit might be set at 12 months; however, since such ashort period might encourage organizations to lodgeprecautionary objections, it might be wise to extend it,perhaps to 18 months, as China proposed in its amend-ment. He would have no objection to the provision


being more detailed, as suggested in the Australianamendment. The proposed subparagraph (b) (ii) might,however, lead to the creation of a separate rdgime.14. Concerning paragraph 2 of the article, his delega-tion warmly welcomed the Austrian amendment.15. Turning to the amendment proposed by the Ger-man Democratic Republic, he said that its adoptioncould lead to situations where an organization wouldbe unable to object to a reservation or, worse still,to accept one, despite its being a party to the treatyin question. The explanations offered at the previousmeeting by the representative of the Ukrainian SovietSocialist Republic, though comprehensible in them-selves, hardly seemed applicable in the case under dis-cussion. The Conference was an exercise in codifica-tion and quite distinct from any future negotiationsbetween States and international organizations, or be-tween international organizations, that might lead to atreaty. That being so, his delegation did not take theview that an amendment to article 19 necessarily en-tailed an amendment to article 20.

16. Mr. WANG Houli (China) said that all the pro-posals to paragraph 5 of the article set a time-limit forinternational organizations to raise objections to res-ervations. Given the special characteristics of inter-national organizations, his own delegation had pro-posed a time-limit of 18 months. If, however, a majorityof delegations considered that 12 months would suffice,it would not object.17. With regard to the Australian amendment, hisdelegation considered, first, that the time-limit shouldnot be too long, and secondly, that it should be definite.The proposal, which provided a flexible approach to thesubject, would therefore be improved if it set a definitetime-limit, say, of 18 months.18. It would assist the Committee in arriving at adecision on article 20 if the Expert Consultant couldgive his views on paragraph 2 of the article and onthe corresponding provision of the 1969 Vienna Con-vention.19. Mr. ECONOMIDES (Greece) said that his del-egation favoured the Commission's draft, which bestsuited the needs of international organizations. Theonly amendment it could support was the one submittedby Austria to paragraph 2, which concerned the will ofthe parties to apply treaties in their entirety. It agreedthat the corresponding provision of the 1969 ViennaConvention should be followed in that respect, and thatit would be a mistake to treat international organiza-tions as though they corresponded to the sum of theirStates; each one was a separate legal entity and a sepa-rate subject of international law. Although his delega-tion could not support the other amendments, its posi-tion on article 20 was flexible.

20. The amendment submitted by the German Demo-cratic Republic was very similar to the amendmentswhich it had submitted to articles 11 and 19 and also tocertain amendments submitted by the Soviet Union.They all emphasized the special nature of internationalorganizations and, in particular, the functional charac-ter of their capacity to enter into contracts, and stressedthe need for each international organization to conform

to its constituent instruments and other rules. Perhapsthat general idea could be incorporated in the preambleto the future convention, thus providing a key, as itwere, to the construction of its provisions.21. Mr. DENG (Sudan) said that, while he supportedthe Commission's draft, he would not object to theamendments submitted by Austria and Cape Verde,which served to clarify the wording of the article. Hewould like to hear the views of international organiza-tions regarding the time-limits to be accorded to themfor raising an objection to a reservation. His delegationwould then take a definite position on the matter.22. Mr. GUNEY (Turkey) observed that the purposeof the right to raise an objection to a reservation was toprotect the fundamental right of an entity that was tobecome a party to a treaty; that right was closely linkedto its status as a contracting party. An objection toa reservation in no way affected the relations between aState which was the author of the reservation and aState which accepted it.23. All the amendments before the Committeeexpressed the rule that a certain period of silenceamounted to tacit acceptance. That rule had arisen outof the wish to preserve the integrity of multilateraltreaties and to prevent them from being reduced to aseries of bilateral agreements.24. In the light of those remarks, his delegation was infavour of a 12-month time-limit being specified in para-graph 5, which was a residual provision, and it sup-ported the amendments to that effect. It had difficulty,however, in approving subparagraph (b) (ii) of thewording proposed by Australia in its amendment, sinceit, as orally sub-amended by its sponsor at the previousmeeting, spoke of the "next meeting" of the competentorgan of the international organization in question andcould give rise to confusion in practice.

25. Mr. DE CEGLIE (Food and Agriculture Organ-ization of the United Nations) said that many delega-tions had alluded to the principle of reciprocity, ornon-discrimination between States and internationalorganizations; it was certainly of paramount impor-tance in a convention that dealt with agreements be-tween various subjects of international law. However,it would be unrealistic to apply it mechanically, withoutdue attention to the very real differences that existed inthe nature and functioning of States and internationalorganizations and without seeking to evaluate the var-ious aspects of intercourse between the different sub-jects of modern international law, with a view to es-tablishing a treaty-making regime that accorded withreality.

26. While a 12-month period would generally be suf-ficient to enable States to decide whether to lodge anobjection to a reservation, that was not so in the case ofcertain international organizations. The Conference ofthe Food and Agriculture Organization of the UnitedNations, for example, met once every two years; con-sequently, the inclusion in article 20, paragraph 5, of aprovision embodying a shorter time-limit might there-fore be inappropriate.

27. The Commission's draft was acceptable to hisdelegation; but if an amendment to the article was to be


adopted in regard to paragraph 5, certainly the Aus-tralian one best suited its needs. However, his delega-tion kept an open mind and trusted that a suitablecompromise solution could be found, perhaps along thelines of the Chinese amendment.28. Mr. PASZKOWSKI (United Nations Educa-tional, Scientific and Cultural Organization) said thathis delegation could accept both the original text ofparagraph 5, with its intentional lacuna, and also the12-month or 18-month period proposed in some of theamendments. The Executive Board of his organization,which was competent in the matter, met twice a year,so that either period would allow ample time for itto consider a matter falling under paragraph 5. Thestatement of the representative of the InternationalAtomic Energy Agency at the previous meeting never-theless showed that some other organizations were in amore difficult position because their competent organsdid not meet so frequently. The Australian amendmentcatered for the situations of individual organizations inthat respect.29. Mr. HALTTUNEN (Finland) said that the legalinstitution of reservations had been codified as a ruleof general international law in the 1969 Vienna Con-vention. The capacity of international organizations toenter reservations to treaties was to be codified at thepresent Conference. The International Law Commis-sion had given several examples of the practice of res-ervations by intergovernmental organizations. It was infact their practice which justified the view that inter-national organizations possessed the capacity to makereservations. However, the draft convention, by layingdown the rules which were to apply to their reserva-tions, might create practical difficulties, because in-ternational organizations were composed of States. Onoccasion a State might, with regard to a particulartreaty, have a reservation or objection differing fromthat of an international organization of which it was amember, in which case two or more concurring reserva-tions might exist for the same parties to a treaty; also,the member States of an organization could hardly beseen as third parties to a treaty which involved both theStates and the organization. The same considerationsapplied to all the draft articles dealing with reser-vations.

30. His delegation supported the amendments pro-posed by Austria and Cape Verde, since they aimed atbringing the future convention into line with the 1969Vienna Convention.31. Mr. NEMOTO (Asian-African Legal Consulta-tive Committee) said that, as far as the period for raisingobjections was concerned, the amendment proposed byAustralia favoured international organizations, but thatformulation might lead to delays and uncertainty in thelegal effect of treaties. The Asian-African Legal Con-sultative Committee could accept a period of either12 or 18 months, since its ruling body met every year.The statements made by the representatives of otherinternational organizations suggested that a period of18 months, as proposed by China, would be preferable.32. Mr. RASOOL (Paksitan) said that his delegationcould support the proposals by Austria and Cape Verderegarding paragraph 5 of article 20 for the reasons which

had been given by previous speakers. Concerning theamendment proposed by Austria to paragraph 2, hisdelegation preferred the simple formula employed inthe International Law Commission's draft to the Aus-trian wording, whose primary aim seemed to be torepeat the language of the 1969 Vienna Convention. Itreserved its position on the wording for paragraph 2 ofthe article proposed by the German Democratic Re-public in paragraph 1 of its amendment, which it con-sidered to be largely a corollary to the similar proposalfor article 19. His delegation did not favour the wordingproposed in paragraph 2 of that amendment, to which itpreferred the Commission's draft.33. Mr. NORDENFELT (Sweden) said that his del-egation was in favour of putting States and interna-tional organizations on an equal footing in the matterof drawing up and adopting treaties. It took the sameview when it came to the question of reservations andobjections. However, the time-limit of 18 months pro-posed by China in its amendment in regard to objectionsseemed to create a doubt as to whether the rules of the1969 Vienna Convention or those of the future conven-tion would apply to States which were parties to bothinstruments. He therefore supported the 12-month pe-riod proposed by Austria and Cape Verde.34. Mr. MAJDI (Morocco) said that his delegationfound it difficult to understand why the InternationalLaw Commission had been silent on the matter of ob-jections raised by international organizations to reser-vations. He could not accept a regime which createduncertainty between contracting parties. While in cer-tain instances international organizations might havedifficulty in taking a decision on a reservation within agiven period of time, it was inappropriate to generalizefrom that. Moreover, international organizations werelegal persons and subjects of international law and, assuch, must be obliged to establish their position underthe same conditions as States.35. Mr. KANDIE (Kenya) said that his delegationagreed with the International Law Commission withrespect to paragraphs 1 to 4 of the article. Paragraph 5expressed a limitation which should apply only toStates. Since several speakers had mentioned the needfor legal equality between States and internationalorganizations as parties to a treaty, his delegationexpected support to be forthcoming for the idea em-bodied in the amendments proposed by China, Austriaand Cape Verde, all of which sought to set a deadlinefor a tacit acceptance of reservations that was the samefor international organizations as for States.36. His delegation commended the proposal by Aus-tralia for its flexibility, but could not support it becauseit did not contain the same limitation period for Statesas for international organizations. His delegation wouldprefer the limitation period to be 12 months, as pro-vided in the 1969 Vienna Convention. It preferred theCommission's draft to the amendment proposed byAustria, but would like an explanation from the ExpertConsultant before commenting on paragraph 2 of thearticle.37. In response to the argument that some inter-national organizations would not be able to meet the12-month time-limit, it was the view of his delegation


that the limit would have the salutary effect of en-couraging international organizations to adapt theirpractices to the rule, the advantage of which would bemore certainty for the future.

38. Mr. MB A YE (Senegal) said that the amendmentproposed by Austria to paragraph 2 complemented theInternational Law Commission's draft, and his delega-tion could approve it if the drafting was improved. Itwas not persuaded by the Commission's argument thatthe case of there being a limited number of parties couldnot arise in regard to treaties to which one or moreorganizations were parties. As subjects of internationallaw, international organizations had a personality dis-tinct from that of their member States, even if thatpersonality was derivative and thus limited. They par-ticipated in all aspects of the preparation and adoptionof treaties with the same status as States, and thatapplied to the entering of reservations or objections aswell.

39. His delegation approved the amendments toparagraph 5 proposed by China, Australia and CapeVerde, which seemed to offer convergent solutions tothe problem of the time-limit for tacit acceptance ofreservations. The amendment proposed by Australiaseemed to take account of the difficulties best, butcontained a weakness in its failure to fix a time-limit. Ifthe wording proposed by Australia was amended toprovide that the time-limit could not exceed a specifiedperiod, for example 18 months, his delegation couldaccept it. The text could then be sent to the DraftingCommittee.

40. Mr. SANYAOLU (Nigeria) said that somechanges were needed in paragraph 5. His delegationrecognized the administrative difficulties that interna-tional organizations might face regarding tacit accept-ance of reservations if the time-limit was 12 months forthem, as for States. On the other hand, it considered itparamount not to overlook the problems which mightarise if international organizations were permitted toprolong a situation of uncertainty concerning the sub-stance of treaty obligations. Paragraph 5 therefore con-cerned a case where States and international organiza-tions must be placed on the same footing.

41. His delegation supported the amendment pro-posed by Australia, which appeared to provide an ac-ceptable solution to the problem. Subparagraph (b) (ii)of the Australian wording dealt with the fear expressedby the International Law Commission that interna-tional organizations might face administrative difficul-ties if their bodies competent to accept reservations didnot hold annual sessions. However, the wording wouldneed some drafting amendments in order to make theconditions listed in subparagraph (b) apply as alter-natives.

42. Mr. KOECK (Holy See) said that he associatedhimself with those representatives, in particular that ofPortugal, who had urged that there should be no dis-crimination between States and international organiza-tions. His delegation accordingly supported the amend-ment submitted by Cape Verde and the proposal inparagraph 2 of the amendment submitted by Austria,which expressed that idea in regard to the acceptance

and rejection of reservations to a treaty to which Statesas well as organizations were parties.

43. His delegation had no strong feelings with regardto the Chinese proposal to extend from 12 to 18 monthsthe time-limit on the expiry of which a reservation wasdeemed to have been accepted, although, as a generalrule, it preferred the draft convention not to depart fromthe provisions of the 1969 Vienna Convention.

44. The amendment submitted by the German Demo-cratic Republic might bring restrictions to bear on inter-national organizations which were to become parties toa treaty and which were considering raising an objec-tion to a reservation made by another party. If that wasthe case, his delegation would oppose that amendment.

45. The Australian amendment would be acceptableto his delegation, although it believed that the newelement which subparagraph (b) (ii) introduced wouldfurther complicate the task of future depositaries inkeeping their records correctly up to date.

46. Mr. KOLOMA (Mozambique) said that his del-egation felt some sympathy for the concern expressedby certain international organizations that a 12-monthtime-limit for the tacit acceptance of reservationsmight, for practical reasons, prove too short for them.However, equally for practical reasons and especiallyfor the purpose of the early entry into force of thetreaty, it was essential to lay down a time-limit. Nopersuasive evidence had been put forward to show thatan international organization would not be able to reactas promptly as a State in the face of a reservation. Forthose reasons, his delegation supported the Cape Verdeamendment.

47. Mr. RAMADAN (Egypt) supported the Austra-lian proposal as orally amended by its sponsor. It hadthe merit of taking due account of the differences be-tween States and international organizations with re-gard to both their legal nature and their functions.

48. His delegation also supported the Austrianamendment to paragraph 2, which had the merit ofintroducing the notion of a limited number of nego-tiating parties which was present in the correspondingprovision of the 1969 Vienna Convention. His delega-tion failed to see why the International Law Commis-sion had omitted that useful element from article 20.

49. Mr. AL-HADDAD (Bahrain) said that his delega-tion found the Commission's text of article 20 accept-able, since it covered the subject adequately. It there-fore did not oppose the Cape Verde amendment toparagraph 5 or the Austrian amendment to paragraph 2.

50. Mr. CAMINOS (Organization of AmericanStates) said that his organization had no difficulty witharticle 20 as proposed by the International Law Com-mission. His organization steadfastly believed in theprinciple of legal equality of the parties to a treaty, andtherefore urged that the time-limit set in paragraph 5should be the same for States as for international or-ganizations. The period chosen should be such as toobviate the very real difficulties which certain inter-national organizations would face because of the pro-visions of their constituent instruments.


51. Mr. RODRfGUEZ CEDENO (Venezuela) sup-ported the International Law Commission's text forarticle 20, which was based on the corresponding pro-vision of the 1969 Vienna Convention. As for the time-limit set in paragraph 5, it should be the same for Statesas for international organizations. The internal difficul-ties faced by certain organizations should not be areason for establishing a different time-limit for or-ganizations. His delegation favoured a time-limit of12 months, which was to be found in the correspondingprovision of the 1969 Vienna Convention. It supported

the Australian amendment and the second part of theAustrian amendment, which improved the text of thearticle.

52. Mr. DROUSHIOTIS (Cyprus) said that his del-egation was quite satisfied with the Commission's textfor draft article 20, but it could accept the amendmentsby Australia, Cape Verde and China if the majorityconsidered them as improvements.


14th meetingFriday, 28 February 1986, at 3.25 p.m.



Consideration of the question of the law of treatiesbetween States and international organizations orbetween international organizations, in accordancewith General Assembly resolutions 37/112 of 16 De-cember 1982, 38/139 of 19 December 1983, 39/86 of13 December 1984 and 40/76 of 11 December 1985A/CONF. 129/4)


Article 20 (Acceptance of and objection to reserva-tions) (continued)

1. Mr. TEPAVICHAROV (Bulgaria) said that in thediscussion of article 20 a number of speakers hadstressed the need for equal treatment of States andinternational organizations. However, equality of ca-pacity could apply only in certain specific areas, since,as subjects of international law, States and interna-tional organizations differed both in status and raisond'etre. The applicable rules did not refer to any con-text other than international conferences on multilat-eral treaties.

2. The issue raised by paragraph 5 was procedural. Ifguidelines were required, the time-limits suggested byAustralia (A/CONF. 129/C. 1/L.32) were appropriate, asthey applied to both States and international organiza-tions. The provisions of the paragraph proposed had themerit of being short, clear and comprehensive.3. The Austrian amendment to paragraph 2(A/CONF. 129/C. 1/L.33) had the effect of adding a fur-ther criterion to those proposed by the InternationalLaw Commission and of restricting the application ofthe rule requiring acceptance of the reservation by allthe parties to the treaty. His delegation approved thatamendment.

4. It also supported the amendment submitted bythe German Democratic Republic (A/CONF. 129/C. 1/L.41). Whether or not the wording proposed for para-graph 2 would prove acceptable in other articles, it was

undoubtedly quite satisfactory in the context of arti-cles 19 and 20. The new wording proposed for para-graph 4 clarified the text and made it more comprehen-sive. In addition, paragraph 4 (b bis) would ensuregreater stability in the contractual relations betweenStates and international organizations parties to thesame treaty, thus closely reflecting existing legal re-alities.5. Mr. MORALES (Cuba) stressed the importance ofarticle 20 and outlined the differences between Statesand international organizations under internationallaw. He said that his delegation approved the Chi-nese amendment (A/CONF. 129/C. 1/L. 18), the Aus-tralian amendment and the proposal by Cape Verde(A/CONF. 129/C. 1/L.35).6. His delegation was also in favour of the amend-ments proposed by the German Democratic Republicand approved the inclusion of the words "pursuant tothe rules of . . .".7. Mr. TALALAEV (Union of Soviet Socialist Re-publics) said that the final version of article 20 proposedby the International Law Commission presented a num-ber of important shortcomings when compared with thecorresponding provisions adopted by the Commissionin first reading. States and international organizationswere now placed on an equal footing with regard toobjections to reservations, an approach with which hisdelegation could not agree. For a State, the formulationof objections to reservations was a matter of sovereignright. He took the statement made by the representativeof the United States at the 12th meeting of the Commit-tee to mean that, if the amendment of the GermanDemocratic Republic were accepted, that would implythat States should also be subject to certain limita-tions in the matter of objection to reservations; i.e.,they could object only to reservations which concernedthem. That implication was incorrect: all reservationswere of relevance to States, since they possessed sov-ereignty and not mere capacity. International organiza-tions, on the other hand, were secondary subjects ofinternational law, and therefore enjoyed only the limi-ted capacity of objecting to reservations on matters


within their competence as established by their sov-ereign member States. It was precisely that situationwhich was reflected in the proposal submitted by theGerman Democratic Republic. It was regrettable thatthe Commission's article 20 went so far as to give someprecedence to international organizations in the matterof reservations: in particular, its paragraph 3, whichwas taken in its entirety from the 1969 Vienna Conven-tion on the Law of Treaties,' was unacceptable, be-cause it limited the sovereign right of a State to for-mulate a reservation to a treaty with an internationalorganization in connection with the constituent in-strument of that organization.

8. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that his delegation wished also to refer tothe question of time-limits. The representative of oneinternational organization had stated that his organiza-tion's competent organ met once every two years. Inview of the difficulties that would arise with regard toacceptance of and objection to reservations in such acase, the delegation of the Soviet Union would favourthe adoption of a flexible but realistic time-limit.

9. A number of delegations had referred to the"equality" of States and international organizations,but he considered the notion of equality inapposite, notonly in paragraph 5 but in all the paragraphs of arti-cle 20. In paragraph 5, amendments that would tend toequate the status of States and international organiza-tions would give rise to practical difficulties in the caseof tacit acceptance of a reservation. A case might arisein which the competent organ of an international organ-ization was considering a particular reservation. If cer-tain States represented in that organ were in favourof the reservation while others opposed it, the organwould be unable to reach a decision, with the result thatthe organ's silence could be interpreted as tacit ac-ceptance. Since that was obviously inadmissible, therewas a need to provide in paragraph 5 that an inter-national organization must state its acceptance of orobjection to a reservation.

10. Mr. GOHO-BAH (Cote d'lvoire) said that hisdelegation supported the concept of non-discriminationbetween States and international organizations whichwere parties to the same treaty. It would thereforesupport any solution designed to provide in paragraph 5for equality of treatment both between States and inter-national organizations and between international or-ganizations themselves, even though the latter weresecondary subjects of international law, and it wouldaccordingly support a text based on the amendments tothat paragraph proposed by Cape Verde and Austria,without, however, rejecting any other time-limit thatwould be acceptable to both States and internationalorganizations. The Australian amendment was certain-ly ingenious, but it would have the unacceptable effectof introducing legal uncertainties.

11. Mr. VOGHEL (Canada) said that his delegationapproved the Austrian amendment to paragraph 2. Itwas, however, totally opposed to the German Demo-

1 See Official Records of the United Nations Conference on theLaw of Treaties (United Nalions publication. Sales No. E.7O.V.5),p. 287.

cratic Republic's amendments to paragraphs 2 and 4because of their general tendency to restrict the right ofinternational organizations to formulate objections toreservations.

12. All proposals for specific time-limits in para-graph 5 should take into account the possibility of tacitacceptance of a reservation or of an objection to areservation. His delegation would prefer a time-limit ofapproximately 12 months, but would not oppose a lon-ger period of up to 18 months, or even two years, if thatwere thought necessary. In that connection there wasno reason to limit in any way the prerogatives of inter-national organizations, which, as parties to a treaty,must enjoy equality of rights with the other parties.

13. Mr. DEVLIN (World Health Organization) saidthat information had been requested from individualinternational organizations on suitable time-limits. Inthe case of his own organization, the World HealthAssembly met annually but would have difficulty inreaching a decision if a reservation was notified only afew months before its session. He believed that a time-limit of 18 months, as proposed by China, would besufficient.

14. Mr. CANCADO TRINDADE (Brazil) said that,in his delegation's view, as the treaty-making power ofinternational organizations was not always expresslymentioned in their constituent instruments themselves,in view of the apparent absence of constitutional limita-tions and the little practice so far on that particularpoint, their organs could adapt their practice to the rulein article 20, paragraph 5.

15. His delegation could endorse the amendmentsproposed by Cape Verde and Austria providing forequality of treatment of States and international organ-izations in this particular respect.

16. His delegation also supported a common time-limit for raising objections to reservations, for bothStates and international organizations.

17. Mr. MIMOUNI (Algeria) said that his delegationfound the text of article 20 as proposed by the Inter-national Law Commission satisfactory. However, itsupported the idea of inserting the words "or an inter-national organization" in paragraph 5, as proposed bythe delegations of Cape Verde, China and Austria.

18. With regard to the period to be allowed for raisingan objection to a reservation, his delegation preferred abalance between States and international organiza-tions. A 12-month period could be relatively short forsome international organizations and could raise prac-tical problems. Nevertheless, his delegation favouredthe period of 12 months referred to in the Commission'stext.

19. The Australian amendment allowed some flexi-bility, but did not call for equal treatment of States andinternational organizations. His delegation thereforepreferred the Commission's text.

20. Mr. WOKALEK (Federal Republic of Germany)said that his delegation welcomed the amendments ofAustria and Cape Verde because of the new clarity theyintroduced into the text.


21. It might be best to retain the time-limits laid downin the 1969 Vienna Convention, but there was much tobe said for the flexibility that would be introduced byadoption of the Australian proposal. The Committeemight perhaps even examine the possibility of allowingan international organization to establish its own time-limit.

22. With regard to the amendment of the GermanDemocratic Republic, that proposal gave rise to dif-ficulties similar to those created by the same delega-tion's proposal (A/CONF. 129/C. 1/L.40) for amend-ment of article 19.

23. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that there was no question of introducinginequality of rights between international organizationsand States where equality was appropriate. His delega-tion was not, for example, opposed to the participationof international organizations together with States inconferences directly related to the interests of bothparties, or to the participation of those organizations invoting at such conferences.

24. In the context of article 20, however, to speak ofequality of rights would give rise to difficulties at theinternational level, particularly for the depositary. Ifthere was no consensus in the competent organ of aninternational organization on a particular reservation,and the 12-month period were to elapse, the depositary,one of whose functions was to communicate all relevantdocumentation received by him to the parties to thetreaty, would be unable to fulfil that obligation. Thussilence would be held to indicate the tacit consent ofthe international organization to the reservation for-mulated. He asked all delegations to take that partic-ular example into account in considering the issue of"equality" between States and international organiza-tions in the context of article 20.

25. The CHAIRMAN, summing up, said that, whileinternational organizations were naturally concerned tosecure equality of treatment in the matter of time-limits,they were not seeking positive discrimination on theirown behalf. Most delegations had expressed a willing-ness to be flexible in the matter, whatever their in-dividual preferences. One representative of an inter-national organization had pointed out that most suchorganizations had as yet had little experience of havingto react to reservations formulated by States to mul-tilateral treaties. He drew attention to the fact thatthe rule established in article 20 would only enter intoeffect in some five or six years, when the conventionhad received the necessary ratifications. Consequentlythere was ample time for the international organizationsto express their views regarding any time-limit laiddown in the convention.

26. The constituent instruments of international or-ganizations generally included no specific provisionconcerning acceptance of or objection to reservations.It had been pointed out that, while the circumstanceswere different, in the context of the 1969 Vienna Con-vention States too might have difficulties in that regard.It was clear, however, that in the case of multilateraltreaties some time-limit should be imposed; in his opin-ion, the Committee accepted the 12-month period.

27. The new wording for paragraph 2 which wasproposed in the Austrian amendment appeared to enjoyconsiderable support, and the Drafting Committeeshould therefore be asked to determine whether it im-proved the text or not. In the former case it couldrecommend adoption of the amendment by the Com-mittee of the Whole; otherwise, it should be rejected.28. The German Democratic Republic's amendmentsclearly involved a matter of substance, which shouldnot be prejudged, in view of its close links to arti-cles 11 and 19. It would therefore be preferable topostpone taking a decision on those amendments untilthe wording of those two articles could be agreed upon.29. As for the various time-limits which had beenproposed, he insisted that all of them seemed to beacceptable, but there appeared to be a tendency infavour of adoption of a 12-month period in order toavoid any discrimination and to simplify the work of thedepositary. The Drafting Committee could be asked toindicate whether in its view specification of a 12-monthtime-limit would present any difficulties, on the under-standing that the matter could be considered further ata later stage in the Committee of the Whole.30. Mr. HERRON (Australia) said that when he hadintroduced his delegation's amendment (12th meeting),he had said that a simpler solution than that text wouldbe preferable if one could be found. It now seemed thatthat would be possible, and he therefore withdrew theamendment. He expressed his delegation's gratitudefor the support the amendment had received.31. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that he would not object to reference of theamendments to the Drafting Committee, on the under-standing that his delegation's comments would be takeninto account. He feared that if the Austrian amendmentwas accepted, the convention would be stillborn. Sev-eral delegations were unable to accept that amendmentbecause of the problems that would arise for the de-positary if there was emphasis on the principle ofequality between States and international organiza-tions. Real equality of status was not what was at stakein the context of article 20.32. The CHAIRMAN said that, in the absence ofobjection, the amendments would be referred to theDrafting Committee together with his own commentsand those of delegations.

It was so decided.

Article 7 (Full powers and powers) (concluded)*

33. Mr. PISK (Czechoslovakia), speaking as Chair-man of the Working Group on Article 7, said that, owingto the constructive spirit of co-operation which hadprevailed in the Working Group and the spirit of com-promise displayed by the sponsors of the amendmentsto the article, it had been possible to draw up a con-solidated text of article 7 (A/CONF. 129/C. 1/L.43). Thattext was not a new proposal but was rather a proceduralsolution, based on the specific proposals put forwardby Austria, Cuba, Japan and the United Kingdom, and

: Resumed from the 10th meeting.


the Soviet Union. It also took account of some othersuggestions and of the trend of the discussion whichhad taken place in the Committee of the Whole. Thesponsors of the amendments had agreed that all dif-ferences of a substantive nature should be referred tothe Drafting Committee. That agreement did not solvethe problems of the title of the article and the use ofterms, questions which would, however, be resolvedwithin the framework of article 22.34. He endorsed the Chairman's appeal to the spon-sors of different amendments to the same article toinitiate negotiations with the aim of combining theirvarious proposals, if possible, in a compromise text.That was one of the most effective ways of speedilydealing with those articles which gave rise to problems,and would avoid the necessity of recourse to voting. Itwould enable the Conference to adopt a conventionenjoying general support, or at least the support of theoverwhelming majority of the participants, and thus aninstrument of greater value.35. In conclusion, he drew attention to two smalllinguistic changes to be made, on the recommendationof the representative of the United Kingdom, in sub-paragraph 3 (b) of the consolidated text. The word"the" should be inserted before the word "circum-stances" and the phrase "in conformity with the rulesof the organization" should be replaced by "in accord-ance with the rules of the organization".36. The CHAIRMAN thanked the Working Groupfor its most useful work. In the absence of objection, hewould take it that the Committee approved the con-solidated text proposed by the Working Group anddecided to refer it to the Drafting Committee.

It was so decided.Mr. Pisk (Czechoslovakia), Vice-Chairman, took the

Chair.

Article 27 (Internal law of States, rules of internationalorganizations and observance of treaties)

37. Mr. GOLITSYN (United Nations), introducinghis organization's proposal for amendment of para-graph 2 (A/CONF. 129/C.1/L.37), said that, while theUnited Nations appreciated the extensive consider-ation given by the International Law Commission toparagraph 2 of article 27, as described in its commen-tary (see A/CONF. 129/4), it was not entirely satisfiedthat the provision, though analogous to paragraph 1 ofthe same article and to the corresponding provision ofthe 1969 Vienna Convention, adequately took accountof the difference between subordinating ordinary do-mestic law to a treaty and subordinating one treaty toanother, as would be the case under paragraph 2. Thatapplied particularly in the case of the United Nations,whose constituent treaty, the Charter, had been gen-erally recognized as having pre-eminent status. Thatstatus was specifically mentioned in Article 103 of theCharter, which applied not only to treaties concludedby States Members of the Organization but also, in hisdelegation's understanding, to those concluded by in-ternational organizations, and from which they couldnot derogate. His delegation had therefore found itnecessary to propose an amendment to draft article 27

calling for the insertion of the words "Without prej-udice to Article 103 of the Charter of the United Na-tions" at the beginning of paragraph 2.

38. He noted that there were precedents for suchreference to Articles of the Charter of the United Na-tions. Article 30, paragraph 1, of the 1969 Vienna Con-vention referred to Article 103 of the Charter, as didalso article 30, paragraph 6, of the International LawCommission's text which was before the Conference.

39. Mr. TALALAEV (Union of Soviet Socialist Re-publics), introducing his delegation's amendment toarticle 27 (A/CONF. 129/C. 1/L.39), said that that articledid not make it clear that international organizationsentering into commitments under treaties must do so inthe light of their constituent instrument. The answerto the question whether an international organizationcould require modification of its rules in order to carryout an obligation assumed under a treaty lay in thedifferent legal contexts of the foundation of an organ-ization and the internal laws of a State. As had fre-quently been pointd out, States possessed unlimitedrights as sovereign entities, and their status as par-ticipants in an international treaty was unchanged evenif the treaty conflicted with and required changes intheir internal law. On the proposal of Pakistan, sup-ported by the Soviet Union, an appropriate correctionhad been made to what was then draft article 27 of the1969 Vienna Convention. The position of internationalorganizations was different, and recognizing a similarnorm for them would run counter to the limitationsplaced on them by earlier articles.

40. An international organization simply could notconclude an agreement or treaty which was contrary toits constituent instrument. If it did enter into such atreaty, the latter could not be performed and the organ-ization's obligations under it could not be fulfilled. Itwas no accident, therefore, that, in first reading, theInternational Law Commission had adopted a differenttext, as was indicated in paragraph (3) of its commen-tary to article 27. That text, which had reflected moreconcretely the special position of international organ-izations, had unfortunately been abandoned in secondreading. As a result, under the present draft article 27an international organization could not invoke its con-stituent instrument as justification for its failure toperform a treaty. Yet, an organization's mandate de-rived precisely from its constituent instrument, whichestablished its legal status and its authority to concludetreaties. In principle, therefore, an international organ-ization could not act in violation of its constituent in-strument and adopt a position that was contrary to it.International organizations nevertheless entered intodozens of international commitments every day, andunforeseen conflicts might well arise, even though theorganizations had acted in good faith. It must be clearlystated, therefore, that if an international organization'scommitment under a treaty was in conflict with its con-stituent instrument, the latter had priority. Any treatiesconcluded by an international organization must besecondary to the primary document from which thelatter derived its mandate. It was agreed that in anyhierarchy of international agreements, the norms of theCharter of the United Nations, must take precedence


over all of the treaties. The amendment proposed by theUnited Nations was therefore a useful one. It couldperhaps be combined with the Soviet amendment, al-though that was narrower in scope.

41. Mr. RIPHAGEN (Netherlands) said that Arti-cle 103 of the Charter of the United Nations was a veryspecial provision: it dealt not with the hierarchy oftreaties but with the hierarchy of international obliga-tions. If a treaty could not be performed without con-travening Article 103, the treaty itself could not beperformed, not because of the relationship betweentreaties but because of the relationship between theobligations arising from treaties. All States Members ofthe United Nations were bound by Article 103 of theCharter, but it was not clear where a reminder of theimportance of that Article should be placed in the con-vention. He did not think that article 27 was the rightplace. As he saw it, Article 103 was no more the purelyinternal law of the United Nations than, for instance,the prohibition of aggression, which was also enun-ciated in the Charter but would never be advanced as aninternal law of the Organization. Article 103 was a ruleof general international law.

42. He was afraid that the United Nations amendmentmight create confusion as to the sense and character ofArticle 103, making it appear to be simply an internalrule of the Organization, a confusion which was to acertain extent aggravated by the Soviet Union amend-ment. While in the case of the United Nations someconfusion of the Organization's internal law with therules of general international law might be possible, thatbody being a universal organization of a very specialcharacter, the same could not be said of other inter-national organizations, particularly regional organiza-tions. He failed to see how a regional organization couldinvoke one of the rules of its constituent instrumentagainst a third party which was not a member of theorganization but with which the organization had con-cluded an international treaty.

43. He recognized the importance of including in theconvention a general rule precluding derogation fromArticle 103 of the Charter, but he believed that article 27was not the right place for it.

44. Mr. DEVLIN (World Health Organization) saidthat the substance of the Soviet Union amendmentappeared to be wholly justified as far as treaties con-cluded between an international organization and oneof its member States were concerned. However, ac-count should be taken of the comment of the Nether-lands representative regarding treaties between inter-national organizations and non-member States. Goodfaith seemed to call for some qualification of the Inter-national Law Commission's draft of article 27, para-graph 2. If a State party to a treaty which was also amember of an organization sought to force that organ-ization to act in violation of the obligations imposed byits constituent instrument, to which the State had as-sented, it would be acting in bad faith towards the otherStates members of the organization.

45. The World Health Organization delegation alsosupported the United Nations amendment to article 27.

46. Mr. ECONOMIDES (Greece) said that he sup-ported the article proposed by the International LawCommission. He could not approve the Soviet Unionamendment, which would be contrary to article 46,paragraph 3, under which an international organizationcould invoke only manifest violations of an importantrule to free itself from contractual obligations towards aState or another international organization. The ques-tion of responsibility for an international organization'sbecoming improperly party to a treaty would have to besettled within the organization itself, and not at theexpense of a third party acting in good faith. That wasa basic rule of the 1969 Vienna Convention as faras States were concerned. The importance of safe-guarding treaty obligations took precedence over otherconsiderations unless it involved a manifest violationof an internal law of fundamental importance. He ap-proved the United Nations amendment in principle, buthad doubts as to its proper place in the draft articles.The amendment should be referred to the DraftingCommittee for consideration.

47. Mr. RAMADAN (Egypt) said that the problemwas to decide where Article 103 of the Charter of theUnited Nations, an important principle of internationallaw, should be referred to in the draft articles. Onepossibility was a general reference in the preamble.48. The International Law Commission had placed aproviso relating to Article 103 of the Charter in arti-cle 30, paragraph 6, but that provision was in deliber-ately ambiguous terms. His delegation accepted theargument that Article 103 did apply to internationalorganizations, because it was inconceivable that intheir collective action States should be free of con-straints to which they were subject individually.49. His delegation could not accept the Soviet amend-ment, as it appeared to be inconsistent with article 27,paragraph 1. Furthermore, a similar and more explicitsafeguard, modelled on the 1969 Vienna Convention,appeared in article 46, paragraph 3. In his view thepurpose of the Soviet amendment would be achieved byincorporation of a reference to Article 103 of the Char-ter of the United Nations at an appropriate place in thedraft articles.

Mr. Nascimento e Silva (Brazil), Vice-Chairman,resumed the Chair.

50. Mr. ULLRICH (German Democratic Republic)said that his delegation had no objection in principleto the draft article 27 proposed by the InternationalLaw Commission and it approved the addition to para-graph 2 proposed by the United Nations.

51. The Soviet amendment constituted an importantaddition to paragraph 2, because it covered cases wherethere was a possibility of a conflict of views.

52. In the view of his delegation, article 27 should beexamined in conjunction with the definition of' 'rules ofthe organization" in article 2, subparagraph 1 (/)•

53. Mr. RASOOL (Pakistan) supported the Interna-tional Law Commission's draft. The United Nationsamendment would, in his view, misplace the referenceto Article 103 of the Charter of the United Nations,whose proper place was in article 30. Similarly, the


appropriate place for the text proposed in the Sovietamendment was in the safeguard clause in article 46.54. Mr. VASSILENKO (Ukrainian Soviet SocialistRepublic) said that the Commission's wording of arti-cle 27 took account of the need for parallelism, but theformulation was nevertheless unsatisfactory because itdid not establish a clear distinction between States, theprimary subjects of international law, and internationalorganizations, the secondary subjects. As a result, thedifference between the internal law of a State and therules of an international organization was blurred. AState, being sovereign, created its own internal law andcould unilaterally amend the provisions of that law.That was why the corresponding article in the 1969Vienna Convention had been universally accepted. Theconstituent instrument of an international organiza-tion, on the other hand, its highest law, could not beamended by the international organization itself; theinstrument was an international agreement concludedbetween the organization's member States. Accord-ingly, an international organization could not enter intotreaties conflicting with its obligations under that in-strument. The Soviet amendment did not change thetext of article 27, paragraph 2; it merely added an essen-tial element to it.

55. Mr. MOSTAFAVI (Islamic Republic of Iran) en-dorsed the Netherlands representative's remarks con-cerning Article 103 of the Charter of the United Na-tions. He had no objection to the Soviet amendment if itfound sufficient support, but he preferred the existingtext of the draft article.

56. Mr. HARDY (European Economic Community)said that article 27 was an important provision whichshould be considered in conjunction with article 46.There was no reason why States and international or-ganizations should be accorded different treatment. In-deed, uncertainty and insecurity would be caused ifparallel treatment were not accorded to internationalorganizations. The text proposed by the InternationalLaw Commission should therefore be adopted in itspresent form.

57. Mrs. OLIVEROS (Argentina) considered it un-desirable to refer to articles of one treaty in another;cross-references of that nature were always dangerouswhere the practical implementation of the treaties wasinvolved. She agreed with the comments of the Neth-erlands representative concerning Article 103 of theCharter of the United Nations: article 30, paragraph 6,was a more appropriate place for a reference to thatArticle, or it might be mentioned in some general ar-ticle. She supported the International Law Commis-sion's text of article 27.

58. Mrs. THAKORE (India), said that her delegationapproved the text of article 27 proposed by the Com-mission, which dealt with an extremely sensitive issue.

59. As to amendments submitted to that article, shestated that no one doubted the pre-eminent status ofthe United Nations in terms of Article 103 of its Char-ter, from which neither States nor international or-ganizations could derogate. However, her delegationhad doubts concerning the placing in article 27 of theamendment proposed by the United Nations, and it

fully agreed with the comments made by the represen-tative of the Netherlands in that regard. In her view, thesubstance of the Soviet amendment was covered byarticle 46.60. Mr. HERRON (Australia) said that the Sovietamendment ran counter to the provisions of article 27,paragraph 2, as proposed by the International LawCommission, and should therefore not be added to thatparagraph. It dealt with the question of invalidity, andshould therefore be incorporated elsewhere in the con-vention. His delegation had some difficulty with theUnited Nations amendment which, it seemed, would beof benefit only to the United Nations itself, Article 103of the latter's Charter being part of the Organization'srules. In his view, paragraph 2 was intended, in parallelwith paragraph 1, to refer to all international organiza-tions. Furthermore, he did not see how even the UnitedNations could invoke Article 103 as a safeguard clausein the context of article 27 of the draft articles, whichdealt with the question of conflict between the internallaw of States or the rules of international organizationsand treaty obligations. Article 103 of the Charter dealtspecifically with the obligations of the Members of theUnited Nations under the Charter and their obligationsunder any other international agreement, and providedthat their obligations under the former should prevail incase of any conflict.

61. Mr. DUFEK (Czechoslovakia) said that para-graph 2 dealt not with the question of the validity of atreaty but with the implementation of a treaty in force,a treaty concluded by duly authorized representativesof organizations and approved by the organization inaccordance with its rules.

62. In examining the rule in article 27, paragraph 2,one must bear in mind that the relation of a State to itsinternal law is not the same as that of an internationalorganization to its rules.

63. The rules of the organization, as defined in arti-cle 2, meant the constituent instruments, relevant de-cisions and resolutions and established practice—inother words, on one hand, rules of procedure—and, onthe other, standards and rules of international lawand constituent documents representing internationalagreements and international law as such. The rules ofan organization therefore should not be compared withthe internal law of a State. Furthermore, internationalorganizations should not enjoy a more favourable posi-tion than States.

64. Article 27 developed the principle of pacta suntservanda established in article 26. His delegationtherefore could support the International Law Commis-sion's text of paragraph 2.

65. The amendment proposed by the Soviet Unionpointed out an important problem and might usefully becombined with the amendment of the United Nations,since they were very similar in content.

66. Mr. DALTON (United States of America) saidthat his delegation had no objection to a reference toArticle 103 of the Charter of the United Nations in anappropriate place in the convention. However, it be-lieved that article 27 was not the appropriate place, for


the reasons given by the representative of the Neth-erlands and other speakers.67. The proposal of the Soviet Union involved enun-ciation of a new rule which the sponsor had indicatedwas a corollary to the rule oipacta sunt servanda. In hisdelegation's view, the proposed wording set forth anexception which did not belong in a section of the draftdealing with the observance of treaties. The UnitedStates supported the view expressed by a number ofdelegations that the Commission's text should be ap-proved as it stood.68. Mr. EIRIKSSON (Iceland) said that his delega-tion approved the text of article 27 as drafted by theInternational Law Commission.69. Mr. BIN DAAER (United Arab Emirates) saidthat it was his delegation's understanding that Article103 of the Charter of the United Nations, in referring tothe obligations of the Members of the United Nations,concerned only States and not international organiza-tions. Any reference to that Article in a paragraphdealing with international organizations was thereforeinappropriate. For that reason his delegation could notaccept either the United Nations amendment or that ofthe Soviet Union, and preferred the Commission's draftas it stood.

70. Mr. VAN TONDER (Lesotho) said that his del-egation found it difficult to support the amendmentsproposed by the United Nations and the Soviet Unionfor the reasons given by previous speakers, particularlythe representatives of the Netherlands, Pakistan andGreece. His delegation preferred the Commission'sdraft of article 27.

71. Mr. SANG HOON CHO (Republic of Korea) saidthat his delegation did not favour a broad escape clausewhich would allow an international organization toexcuse itself for its failure to perform a treaty. How-ever, the problem was basically one of interpretation,and the Commission's draft, which left the matter to besolved in accordance with articles 31 and 33, providedthe best solution.

72. Mr. ABDEL RAHMAN (Sudan) expressed sup-port for the Commission's draft of article 27. While hisdelegation appreciated the concern of their sponsors, itcould not support the proposed amendments, sincethey would be inappropriate in article 27.

73. Mr. SKIBSTED (Denmark) said that he favouredretention of the International Law Commission's text inits present form for the reasons given by the represen-tative of the Netherlands. The amendments to article 27which had been submitted were not acceptable to hisdelegation.

74. Mr. WOKALEK (Federal Republic of Germany)expressed support for the Commission's text of thearticle. Like the representative of the Netherlands, hisdelegation had no objection to including the UnitedNations amendment as a proviso elsewhere in the Con-vention, either as a preambular paragraph or in a newarticle. The amendment submitted by the Soviet Unioncreated problems, particularly in relation to para-graph 3 of article 46, and it would give undue advantageand privilege to international organizations.

75. The CHAIRMAN, summing up, said that while atthe beginning of the discussion he had noted a certainhesitation on the part of speakers to take issue withthe representatives of the United Nations and the So-viet Union, the more recent speakers had all given fullsupport to the International Law Commission's draft.As had been pointed out in respect of the United Na-tions amendment, there was some danger in cross-referencing, and in any event a reference to Article 103of the Charter of the United Nations already appearedin article 30. A number of speakers had expressed theview that article 46 would be the correct place for theamendment proposed by the Soviet Union. He invitedthe sponsors of the two amendments to comment on thediscussion.76. Mr. TALALAEV (Union of Soviet Socialist Re-publics) said that his delegation's intentions must havebeen misunderstood. Its amendment did not deal withthe validity or invalidity but with the application of atreaty.77. Mr. GOLITSYN (United Nations) said that hecould not share the views expressed by the represen-tative of the Netherlands and other speakers. Arti-cle 103 of the Charter of the United Nations was areference to that Organization's generally recognizedpre-eminent status. Treaties concluded not only byStates but also by the Organization could not ignoreit. That had been the reason for the proposal to includea reference to that Article at the beginning of para-graph 2. However, since such inclusion raised the ques-tion whether Article 103 of the Charter overrode all thedraft articles, it might be advisable to postpone a de-cision on the United Nations amendment at least untilarticle 30 was considered.78. Mr. TALALAEV (Union of Soviet Socialist Re-publics) said that article 46 was in part V, section 2,of the draft articles, which dealt with the invalidityof treaties, whereas his delegation's amendment dealtwith the question of application of treaties and theobligations involved. It might therefore be advisable topostpone further discussion of the amendment untilarticle 46 was considered, and to consider in the meantime what other place might be appropriate for theSoviet amendment.79. The CHAIRMAN said that in the light of thosestatements the Committee would postpone all furtherdiscussion of the United Nations amendment until itconsidered article 30, and would also postpone its de-cision on the amendment by the Soviet Union for thetime being. Article 27 could not therefore be referred tothe Drafting Committee, even though the majority ofspeakers appeared to be in favour of the InternationalLaw Commission's draft.

Proposals for a new article

80. The CHAIRMAN said that the proposals for anew article (A/CONF.129/C.l/L.19/Rev.l, L.27 andL.42) which had been submitted were concerned withthe relationship between the 1969 Vienna Conventionand the draft articles before the Conference. He did notpropose to open the discussion of those texts at thepresent stage, because negotiations were in progresswith a view to producing a single text and because there

15th meeting—3 March 1986 119

were links between the question they dealt with andvarious existing provisions of the draft articles. Thesponsors might, however, wish to introduce their pro-posals.81. Ms. WILMSHURST (United Kingdom) said thatsince consultations were still in progress between theUnited Kingdom and Italian delegations, it would bepreferable not to introduce the United Kingdom pro-

posal (A/CONF. 129/C. 1/L.27) until those consultationshad reached a satisfactory conclusion.82. Mr. GAJA (Italy) said that his delegation wouldalso prefer to postpone the presentation of its amend-ment (A/CONF. 129/C.1/L.42), in the hope that a jointtext would be elaborated.


15th meetingMonday, 3 March 1986, at 11.10 a.m.



Tribute to the memory of Mr. Olof Palme,Prime Minister of Sweden

1. The CHAIRMAN asked the Committee to observea minute of silence in tribute to the memory of Mr. OlofPalme, Prime Minister of Sweden, who had been assas-sinated on Friday, 28 February 1986. Olof Palme hadbeen a very distinguished statesman and had been en-trusted with very important responsibilities by theUnited Nations in the course of his exceptional career.2. He requested the representative of Sweden to con-vey the heartfelt condolences of the Conference to thefamily of Olof Palme and to the Swedish Governmentand people.

The members of the Committee observed a minute ofsilence in tribute to the memory of Mr. Olof Palme.3. Mr. KRONHOLM (Sweden) expressed his sinceregratitude for the message of sympathy, which he wouldconvey to the family of Olof Palme and to the Govern-ment and people of his country.



Article 30 (Application of successive treaties relating tothe same subject-matter)

Paragraph 6

4. The CHAIRMAN invited the Committee to con-sider paragraph 6 of article 30 and the amendments to itby Argentina and by Australia and Canada, togetherwith the United Nations amendment to article 27(A/CONF. 129/C.1/L.37), which its sponsor had sug-gested should be discussed in connection with thatparagraph.

5. Mrs. OLIVEROS (Argentina), introducing herdelegation's amendment (A/CONF. 129/C.1/L.44), saidthat treaty interpretation was one of the most importantand difficult tasks of Ministries for Foreign Affairs.Their sole guide must be the actual text of the treaty, forattempts to interpret it according to the intention of theparties or the object and purpose of the treaty usuallyled to unnecessary controversy. Her delegation be-lieved that in the interests of clarity, the text of a treatyshould not contain cross-references to another instru-ment. Where it was desirable to refer to a provision ofanother text, that provision should be reproduced infull.

6. The International Law Commission's draft of arti-cle 30, paragraph 6, mentioned Article 103 of the Char-ter of the United Nations, which read: "In the event of aconflict between the obligations of the Members of theUnited Nations under the present Charter and theirobligations under any other international agreement,their obligations under the present Charter shall pre-vail." The term "Members of the United Nations"meant, in accordance with Article 4 of the Charter,the States which accepted the obligations which theCharter contained. The reference to Article 103 of theCharter was thus exclusively to States, and not to inter-national organizations, which were not Members of theUnited Nations.

7. Accordingly, if article 30, paragraph 6, was left as itstood, the important rule which it laid down wouldapply only to the States and not to the organizationswhich ratified the future convention. Her delegation'samendment sought to remedy that defect by replacingthe present text of paragraph 6 by language which re-produced in full the rule embodied in Article 103 of theCharter of the United Nations, thus making it clear thatthe rule applied both to States and to internationalorganizations.

8. Mr. HERRON (Australia), introducing the amend-ment in document A/CONF. 129/C. 1/L.45 on behalf ofhis own delegation and that of Canada, said that onlyparagraph 6 of article 30 was before the Committee.However, given the connection between the proposalto delete that paragraph and the suggested addition toparagraph 1 of the article, he trusted that the Committeewould be willing to consider the amendment as a whole.


9. The purpose of the amendment was to remove aprovision which the International Law Commissionhad described in paragraph (1) of its commentary tothe article (see A/CONF. 129/4) as "deliberately ambi-guous", and to insert in the article a saving clauseidentical to the one in article 30 of the 1969 ViennaConvention on the Law of Treaties.1

10. There had been uncertainty in the Commissionwhether the application of Article 103 of the Charterof the United Nations could be extended to interna-tional organizations. While the view of the amend-ment's sponsors was that the Article was binding on theUnited Nations itself, the main ground for their pro-posal was structural, namely, that if there was to bea saving clause, it should be at the beginning of para-graph 1, as in the 1969 Vienna Convention. It wouldthus clearly have the same application to the rights andobligations of States as it had in that Convention, and itmight or might not apply to international organizations,depending on how the law on the subject was inter-preted.

11. The Australian delegation, for its part, wishedparagraph 6 to be deleted regardless of the decisiontaken about paragraph 1. It was not convinced thatarticle 30 needed to refer to Article 103 of the Charter atall.12. Mr. BERNAL (Mexico) said that the Interna-tional Law Commission's commentary acknowledgedthe fact that the Commission had failed to solve a dif-ficult problem. The hierarchical supremacy of the Char-ter of the United Nations over all other treaty obliga-tions of Member States was a basic principle which hadbeen clearly recognized in the 1969 Vienna Convention.Consequently, the obligations imposed by the Chartertook precedence over any other obligation arising froma subsequent treaty, regardless of the subjects of inter-national law which were parties to that treaty. Thepurpose of the two amendments before the Committeewas the same, namely, to establish that in the event ofconflict between the provisions of a subsequent treatyand those of the Charter of the United Nations the lat-ter would prevail. The amendment by Australia andCanada had the merit of placing the saving clause in themost appropriate place, while the Argentine proposalwas more explicit. The two proposals might conve-niently be merged.

13. Mr. BOUCETTA (Morocco) wondered whetherany failure to mention Article 103 of the Charter inarticle 30 would allow international organizations toconclude treaties without taking into account the pro-visions of the Charter. Such a situation would ob-viously be unacceptable. States had conferred primacyin their relations as individual entities on the obliga-tions imposed on them by the Charter of the UnitedNations; it would therefore be paradoxical if they per-mitted themselves the possibility, when acting col-lectively through international organizations, of dis-regarding those obligations. His delegation thereforesupported the proposal to introduce a proviso con-


cerning Article 103 of the Charter into article 30, para-graph 1.14. Mr. RASOOL (Pakistan) said that the intentionalambiguity underlying paragraph 6 resulted mainly froma controversy over the application of the principles ofthe Charter of the United Nations to the treaties con-cluded by international organizations. The presentposition was that States, through an internationalorganization, might be able to avoid their obligationsunder the Charter. His delegation therefore opposedparagraph 6 as it stood. It would prefer the Argentineproposal for amending it, among other things becausethe text proposed by Argentina avoided a cross-reference.15. Mr. KOLOMA (Mozambique) said that Arti-cle 103 of the Charter of the United Nations applied toMembers of the United Nations, which were unequiv-ocally defined in Articles 3 and 4 as States; conse-quently, the article could not be said to apply to inter-national organizations. Nevertheless, his delegationfelt strongly that the content of Article 103 of the Char-ter, suitably adapted, should be embodied in the draftconvention, either as a general article or as a sepa-rate paragraph of article 30. Of the different proposalsput forward to that effect, it favoured the Argentineamendment.16. Mr. DALTON (United States of America) saidthat in his view the reference by the International LawCommission in paragraph (1) of the commentary toarticle 30 to what it said were "deliberately ambiguousterms" was—to say the least—infelicitous. While herealized that it was impossible to draft a text on thehighly complex subject of treaty law in such a way as tosolve every conceivable problem in advance, the textmust establish adequate guidelines that should make itpossible to deal with foreseen and unforeseen diffi-culties if and when they occurred. He believed that inthe present instance to speak of a possible conflictbetween the obligations existing under a treaty andthose existing under the Charter of the United Nations,rather than between their provisions, would probablybe as much as the text could do, as well as being aprudent course in the circumstances. It would avoidthe risks inherent in treating the entire Charter as juscogens, which it was not, and thereby opening the wayto a great number of possible problems. He thereforesuggested that the word "provisions" in the text pro-posed by Argentina should be replaced by the word"obligations". If the delegation of Argentina could ac-cept that, paragraph 6 and the amended proposal mightbe referred to the Drafting Committee.17. Mr. RIPHAGEN (Netherlands) pointed out thatArticle 103 of the Charter of the United Nations—which he believed should apply to international or-ganizations—did in fact contemplate conflicts of"obligations", not of "provisions". That should befully understood if any reference was made to the Arti-cle. As to the siting of such a reference, its proper placewas perhaps not in article 30 but in a separate article,whereby it would have more general application. Thearticle would establish a rule that in all cases of conflictbetween the obligations of international organizationsparties to the treaty and those arising under the Charterof the United Nations, the latter would prevail.


18. The reticence of the International Law Commis-sion to pronounce on the applicability of Article 103of the Charter to international organizations reflectedits traditional attitude towards matters concerning thecontent of the Charter. But the Conference was entitledto pronounce on the subject, and should do so explic-itly. Once it had decided on the substance of the matter,the rest would be a matter of drafting.19. Mr. TUERK (Austria) agreed that Article 103 ofthe Charter of the United Nations should apply to inter-national organizations. It was inconceivable that Statesshould be able at law to form an international organi-zation under conditions that relieved them of theirobligations under the Charter. He believed that, of theproposals before the Committee concerning article 30,paragraph 6, the amendment by Australia and Canadadealt with the question of Article 103 in the most ap-propriate place.

20. He had sympathy for the explanation given insupport of the Argentine proposal, but felt that if thetext contained no direct reference to Article 103, itwould stray too far from the Vienna Convention on theLaw of Treaties. Were the Argentine proposal never-theless considered acceptable, it should be amended assuggested by the United States. The Austrian delega-tion would have no objection to the matter being treatedin a separate article.21. Mrs. OLIVEROS (Argentina) said that her del-egation accepted the change suggested by the UnitedStates. It could agree to the amended wording of itsproposal being included in the draft as a separate ar-ticle.

22. Mr. BARRETO (Portugal) supported the wordingproposed by Argentina, which, for the reasons given bythe Netherlands representative, should form a separatearticle.

23. Mrs. THAKORE (India) said that the Argentineproposal had the merit of being clearer than the pro-posal by Australia and Canada, and was improved bythe change made by the United States. It should bereferred to the Drafting Committee together with theNetherlands suggestion for a separate article con-cerning Article 103 of the Charter.

24. Mr. YIN Yubiao (China) observed that the pro-posals by Australia and Canada and by Argentina dealtwith the same matter, and both deserved support. Hebelieved that Article 103 of the Charter should applyto international organizations, which were instrumentsfor collective action by States, and that the Conferenceshould state so explicitly. He suggested that both theamendments should be referred to the Drafting Com-mittee.

25. Mr. CRUZ FABRES (Chile) supported the Ar-gentine proposal as amended by the United States. Inview of the importance of the principle involved, thematter might well form the subject of a separate article.

26. Mr. SZASZ (United Nations) said that a referenceto Article 103 of the Charter was perhaps even moreimportant in article 30 of the draft convention than inthe corresponding article of the 1969 Convention. It hada bearing not only on the question of successive treaties

but also on the recurrent issue of the relations betweenthe constituent instruments of international organiza-tions and the treaties they concluded. Although theInternational Law Commission might have explainedits action as to Article 103 of the Charter in somewhatunfortunate terms, the fact that it occupied a paragraphof its own in the Commission's draft seemed to reflectthat the latter shared the view of the importance of thismatter.27. In its written comments on paragraph 6 of the draftarticle, the United Nations had pointd out that Arti-cle 103 of the Charter could also have a bearing on otherarticles of the draft;2 that still seemed true as far asarticles 27 and 46 were concerned, for example. Thesuggestion by the Netherlands that a reference to Arti-cle 103 of the Charter might form the subject of aseparate article therefore seemed very pertinent. Yet ifthat course was adopted, and if the new article in-dicated that all the other provisions of the draft weresubject to Article 103 of the Charter of the UnitedNations, the future convention would be unique; theincorrect and unacceptable inference might be drawnfrom it that other treaties not containing a similar ref-erence to Article 103 of the Charter were not so limited.Such an inference was less likely to be drawn were thereference to Article 103 attached to a specific article orarticles in the draft convention; then it could be arguedthat the reference had been included pro memoria—purely as a reminder of the rightful pre-eminence thatshould be accorded to the Charter.

28. One solution to the problem might be to incor-porate the reference to Article 103 in the preamblewhich in all likelihood would be prefixed to the futureconvention. The final preambular paragraph of the 1969Convention seemed to offer a suitable model as far aswording and context were concerned.29. If neither that solution nor the one put forward bythe Netherlands was found acceptable, the United Na-tions would continue to believe that a reference toArticle 103 of the Charter should appear in article 30—perhaps in the manner proposed by Australia andCanada, thereby ensuring reasonable conformity withthe 1969 Vienna Convention—as well as in articles 27and 46.

30. Mr. REIMANN (Switzerland) said his delegationconsidered that the application of the future conventionmust not lead to a violation of Article 103 of the Charterof the United Nations. The provision in that Articlemight usefully find reflection in the text of the instru-ment. His delegation had been particularly impressedby the very explicit Argentine proposal, and welcomedits sponsor's agreement that it should refer to possibleconflicts of obligations and not of provisions. In regardto the place in the draft at which Article 103 of theCharter would be reflected, his delegation was open tosuggestions, including the interesting one advancedby the representative of the United Nations that a suit-able place for it might be the preamble to the draftconvention.

2 See Yearbook of the International Law Commission, 1981,vol. II, Part II (United Nations publication, Sales No. E.82.V.4(Part ID), p. 198.


31. Mr. SOMDA (Burkina Faso) said that in his del-egation's view, inasmuch as international organizationswere not parties to the Charter of the United Nations,the question at issue could not be fully solved by theAustralian and Canadian amendment. The amendedArgentine proposal had the merit of being more explic-it, and would prevent differences of interpretationarising in the future. His delegation therefore supportedit and would have no objection to its forming the subjectof a separate article.32. Mr. SUCRE FIGARELLA (Venezuela) said thata general reference in the draft convention to the Char-ter of the United Nations as the higher-ranking legalinstrument would be more appropriate than a specificreference to Article 103 of the Charter, and would coverinternational organizations as well as States. His del-egation therefore supported the amended Argentineproposal; it introduced a necessary clarification into thedraft. The amended wording could either be embodiedin article 30 itself or form the subject of a separatearticle.33. Mr. STEFANINI (France) said that the issue un-derlying article 30, paragraph 6, was extremely com-plex. Although his delegation had not objected to arti-cle 30 of the 1969 Vienna Convention, its position inregard to the present draft article was somewhat dif-ferent. It was inclined to agree that, since internationalorganizations were instruments of collective action byStates, the latter should not be able to escape obliga-tions imposed on them by the Charter through treatiesconcluded by international organizations of which theywere members. But it did not think the Conferenceshould embark on a discussion of that issue. The bestsolution, his delegation felt, would be to adopt theInternational Law Commission's text, in which the ref-erence to Article 103 of the Charter appeared in a sepa-rate paragraph, but it would not object to the amend-ments proposed to paragraph 6 being referred to theDrafting Committee.

34. Mr. DROUSHIOTIS (Cyprus) said that his del-egation supported the proposals by Argentina and byAustralia and Canada, for the reasons stated by theirsponsors.35. Mr. GERVAS (Spain) said that he approved theamended Argentine proposal, since it was clearer andmore explicit than the Australian and Canadian amend-ment while being identical with it in content. He en-dorsed the Venezuelan representative's view of theArgentine proposal. He considered, however, that itwould be advisable to refer both amendments to theDrafting Committee.

36. Mrs. DIAGO (Cuba) said that the Charter of theUnited Nations, by virtue of its Article 103, applied toStates; that was reflected in paragraph 6 of article 30 ofthe Draft convention. His delegation too supported theArgentine proposal, since it would make the paragrapha provision of a general nature and thus applicable tothe draft as a whole. He would have no objection if theprovision formed the subject of a separate paragraph.

37. Mr. NEGREIROS (Peru) said it was clear fromArticle 103 of the Charter that the Charter applied toMembers of the United Nations and not to international

organizations. In order to avoid differences of inter-pretation, not only about contractual obligations butalso as to which of the instruments concerned shouldtake precedence over the other, the rule in article 30,paragraph 6, should be stated in clear and categoricalterms. It was not enough to refer solely to Article 103 ofthe Charter, and he therefore supported the amendedArgentine proposal.38. Mr. RESTREPO PIEDRARITA (Colombia)expressed his delegation's support for the Argentineproposal as orally amended by the United States. Hewould like the basic rule which it set out to take the formof a separate article. It was a rule of the utmost impor-tance in regard to what was known as the hierarchy ofnorms in the international legal order.39. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that his delegation favoured the inclu-sion in article 30 of a reference to the Charter of theUnited Nations. The amended Argentine proposal andthe Australian and Canadian amendment should be re-ferred to the Drafting Committee.40. Mr. BOHTE (Yugoslavia) said that, while hisdelegation appreciated the International Law Commis-sion's cautious approach to paragraph 6, it endorsed theattempts which the amended Argentine proposal andthe Australian and Canadian proposal made to improvethe paragraph. It found the former proposal the moreprecise of the two. Nevertheless, it considered thatboth proposals should be referred to the Drafting Com-mittee, along with the suggestion made by the UnitedNations representative.

41. The CHAIRMAN suggested that the Argentineproposal, as amended orally by the United States, andthe proposal by Australia and Canada should be re-ferred to the Drafting Committee with a view to for-mulating the substance of article 30, paragraph 6, in anappropriate manner and deciding on the precise place ofthe new formulation in the draft convention.

It was so decided.

Article 38 (Rules in a treaty becoming binding on thirdStates or third organizations through internationalcustom)

42. The CHAIRMAN said that no amendments hadbeen proposed to article 38. He invited the Committeeto consider the article.43. Mr. STEFANINI (France) said that, in the discus-sion of the matter at the 1968-1969 United NationsConference on the Law of Treaties, the French delega-tion had indicated that the reference in the text to theprocess of the development of customary law seemedinjudicious in a legal instrument concerned with treatiesbetween States.3 The inclusion of a like article in thepresent text in regard to treaties between States andinternational organizations or between international or-ganizations likewise seemed to add nothing to the clar-ity or balance of the text, and might cause confusion.

' See Official Records of the United Nations Conference on theLaw of Treaties, (United Nations publication, Sales No. E.68.V.7),Summary records of the meetings of the Committee of the Whole,35th meeting, para. 82.


It seemed particularly inappropriate that the draft con-vention should prejudice the way in which custommight affect the functioning of an international organ-ization. His delegation did not believe that rules con-cerned with the institutional procedures of a particularinternational organization could, as a result of arti-cle 38, become generally applicable to other organiza-tions. It continued to maintain that relations between aninternational organization and its member States didnot generally lend themselves to the development ofcustomary rules. However, his delegation would notoppose the adoption of article 38, since it had acceptedthe corresponding provision in the 1969 Vienna Con-vention.

44. Mr. CANgADO TRINDADE (Brazil) said hisdelegation felt it necessary to distinguish three points inrelation to article 38. The first was the question of theprocess whereby customary law was formulated, a mat-ter not covered by article 38 but not unrelated to it. Ifby custom was meant the generalization of the practiceof States accepted as law, evidence of custom was arelative matter. That was because some States publi-cized their national practice in international law in theform of digests or repertories of international law, andthus might be regarded as having influenced the de-velopment of customary law more than those that didnot. If the same definition of custom was applied tointernational organizations a similar phenomenonwould be found. Organizations such as the United Na-tions or the Organization of American States, whosepractice was widely publicized through repertories andwhose functions and powers were very widespread,might come to be regarded as influencing the develop-ment of customary law far more than a small technicalorganization engaged in specific operational activitiesin circumscribed sectors. However, that first pointshould not be confused with the purpose of article 38.

45. The second point concerned the interaction be-tween treaties and customary law. For many yearsdoctrine had conceded that treaties, as evidence ofcustomary international law, might exert effects onnon-parties, thus recognizing that treaty law could passinto customary law. The case law of the InternationalCourt of Justice contained examples of the interactionbetween treaties and custom: in the hostages case be-

tween the United States of America and Iran in 1980,4both treaties in force and general international law hadbeen taken into account simultaneously; and in the Gulfof Maine case between the United States and Canada in1984,'judicial recognition had been given to the viewthat signed but unratified codification conventionsmight contribute to the formation of customary law. Inthe latter case, the Court had had in mind certain por-tions of the United Nations Convention on the Law ofthe Sea.46. His delegation's third and last point was the na-ture of the reservation embodied in article 38. Afterconsiderable discussion, the 1968-1969 United NationsConference on the Law of Treaties had adopted, as theprovision corresponding to the present draft article, thequite precise rule that for a norm to bind a third State asa customary norm of international law it ought to be"recognized as such". That requirement was main-tained in the present draft. The point had been made atthe 1968-1969 Conference that the provision simplyendorsed the legitimacy of the process whereby rulesexpressed in treaties might become binding on non-par-ties through being recognized as customary rules. Thatdid not mean, however, that treaties had legal effects inregard to third States or, by the same token, inter-national organizations, for the source of the bindingrules contained in them was custom, not the treatiesthemselves. Although article 38 did not, as he had al-ready indicated, affect the process of formulation ofcustomary law, that did not preclude the possibility thatthe effects of that process might extend to internationalorganizations. His delegation could therefore supportthe text of article 38 as proposed by the Internationa]Law Commission.

47. The CHAIRMAN said that the Committeeseemed prepared to accept the text of article 38 sub-mitted by the Commission. Unless he heard any objec-tion, he would take it that the Committee referred thetext to the Drafting Committee.

// was so decided.


* United States Diplomatic and Consular Staff in Teheran,Judgment, I.C.J. Reports 1980, p. 3.

' Delimitation of the Maritime Boundary in the Gulf of MaineArea, Judgment, l.CJ. Reports 1984, p. 246.


16th meetingMonday, 3 March 1986, at 3.30 p.m.





Proposals for a new article (continued)*

1. The CHAIRMAN said that two of the proposalssubmitted for a new article had many points in com-mon. Since negotiations were still in progress betweenthe sponsors of the proposals and other delegations, hewould not press the sponsors to make a formal in-troduction. However, a short introduction would giveother delegations an insight into the matter and perhapsalso inspire suggestions that could lead to a commontext.2. Ms. W1LMSHURST (United Kingdom), intro-ducing her delegation's proposal (A/CONF. 129/C.l/L.27) said that it concerned the relationship betweenthe draft articles now before the Committee and the1969 Vienna Convention on the Law of Treaties.1 In thedebate on article 3, the United Kingdom delegation hadpointed out (4th meeting) that the relationship betweenthe two conventions was a matter that had been leftunregulated by that article. On the same occasion theExpert Consultant had suggested that the Conferenceshould consider the possibility of adding to the finalclauses an article dealing with the relationship betweenthe two conventions, an article which, the Expert Con-sultant had felt, should give the 1969 Vienna Conven-tion priority.

3. The United Kingdom proposal had been made inthe light of that statement by the Expert Consultant andof consultations with other delegations. The new arti-cle proposed was designed to safeguard the applicationof the 1969 Vienna Convention to relations betweenStates parties to that Convention.4. It might be thought that the scope of the draftarticles, as defined in article 1, was clear enough. How-ever, the problem with the draft articles as they stoodwas that article 1 might be read as having the effect thatwhere there was a multilateral treaty to which a largenumber of States were parties and an international or-

* Resumed from the 14th meeting.1 Official Records of the Untied Nations Conference on the Law

of Treaties (United Nations publication, Sales No. E.70.V.5),p. 287.

ganization became a party to it, perhaps many yearsafter the entry into force of that treaty, the regimewhich previously applied to the treaty, that of the 1969Vienna Convention, would, upon the organization'sbecoming a party, be converted into the rdgime of thenew convention. In the view of the United Kingdomdelegation, the relations between States under such atreaty should be governed by the 1969 Vienna Conven-tion if its States parties were also parties to that Con-vention. Its amendment would therefore safeguard theapplication of the 1969 Vienna Convention in everycase where it would apply but for the entry into force ofthe convention now under consideration.

5. Some 70 States, most of which were represented atthe present Conference, were either signatory or partyto the 1969 Vienna Convention. States which were notparties to that Convention would not be affected by theproposal.

6. The United Kingdom delegation had no strongviews on where the text it proposed should be placed inthe convention. Should the Committee agree on theprinciple of safeguarding the application of the 1969Vienna Convention, her delegation would be contentto leave it to the Drafting Committee to decide wherea new article or provision on the subject should beplaced.

7. The United Kingdom delegation was engaged inconsultations with the Italian delegation in an effort toproduce a single text and thus avoid having two com-peting proposals designed to deal with the same prob-lem in different ways. The Italian proposal went furtherthan the United Kingdom one, in that it would removefrom the scope of application of the draft convention alltreaty relations between States, whereas the UnitedKingdom proposal would remove only those relation-ships between States which were parties to the 1969Vienna Convention.

8. She recognized that many varied and complex legalissues arose from consideration of the web of treatyrelations existing under the present draft conventionand under the 1969 Vienna Convention. Having thusbriefly introduced its own proposal, the United King-dom delegation reserved the right, when the Committeetook up the matter, to revert in greater detail to some ofthose issues.

9. Mr. GAJA (Italy), introducing this delegation'sproposal for a new article (A/CONF. 129/C.1/L.42),said that it represented an attempt to resolve a problemwhich had not been dealt with in the draft articlesprepared by the International Law Commission. TheCommission had deliberately refrained from consid-ering the question of the relations between the draftconvention and the 1969 Vienna Convention. Nor hadthe Commission stated whether relations of States un-


der a treaty as between themselves were covered bythe draft convention under consideration. Although itmight be concluded that such relations were in factcovered by the existing articles, his delegation felt thatit would be better for the Conference to address theproblem through a clear and specific provision.10. Such a provision could state either that relationsof States under a treaty as between themselves werealso covered by the draft convention, or that such rela-tions were not so covered. One reason why his delega-tion had opted for the latter solution was that a codifica-tion conference on the law of treaties between Stateshad already been held.11. The 1969 Vienna Convention expressly specifiedin its article 3, paragraph (c), that the Convention ap-plied "to the relations of States as between themselvesunder international agreements to which other subjectsof international law are also parties". Thus, accordingto that Convention, the relations of States under treatyas between themselves were also covered, and therewas therefore no need to codify the rules further. Therelations between States parties to that Conventionand States which were not parties to it were governedby customary international law. Indeed, the rules laiddown by the 1969 Vienna Convention might in manyrespects be considered as a codification of existingcustomary law on the subject.

12. The purpose for which the present Conferencehad been convened was to deal with, first, the relationsbetween States on the one hand and international or-ganizations on the other, and secondly, with the rela-tions of international organizations as between them-selves.13. It was not necessary that treaty relations amongStates parties to a treaty to which an international or-ganization was also a party should be governed by thenew convention. In a multilateral convention, relationsbetween the parties were almost invariably regulatedby a variety of rules, if only because some States wereparties to codification conventions.14. His delegation had sought to represent the situa-tion in the form of a chart, which had been circulatd tothe Committee, showing that relations under even onetreaty were highly complex and that various rdgimesapplied. The issue before the Conference was whetherthe relations between States which were parties to the1969 Vienna Convention were regulated by the draftconvention. He noted that the effect of the texts pro-

posed by Cape Verde (A/CONF.129/C.l/L.19/Rev.l)and the United Kingdom would be to leave the relationsbetween States parties to the 1969 Vienna Conven-tion outside the scope of the new convention. Theadditional effect of his delegation's amendment wouldbe to exclude from the scope of the draft convention therelations between a State party to both conventions anda State party only to the draft convention.

15. It would add a considerable element of complica-tion to make the draft convention applicable to the re-lations of States as between themselves. In the case ofthe United Nations Convention on the Law of the Sea,for example, the relations of States as between them-selves would be subject to the 1969 Vienna Conventionor to customary rules until an international organizationacceded to the Law of the Sea Convention. The applica-tion of the 1969 Vienna Convention and the customaryrules would then be superseded by the new convention,which would obviously not apply to all States. The newconvention would thus be under a different rdgime intime, and that r£gime would change once again if theorganization decided to withdraw from the Law of theSea Convention. In that case the new convention wouldcease to apply, and the regime governing the relationsof States as between themselves would revert to thatof the 1969 Vienna Convention and customary rules.Thus, the applicability of rules to relations of Statesas between themselves would depend on the attitudetaken by an international organization under the mul-tilateral treaty. Moreover, application of the new con-vention to relations between States would produce therather startling result that, while it would not evenmention treaties between States in its title, it would infact become the text governing relations of States undera treaty as between themselves with regard to manyimportant multilateral conventions.

16. In conclusion, he said that the purpose of hisdelegation's amendment was to make it clear that the1969 Vienna Convention and the customary rules whichwere developed on the basis of that Convention re-mained the legal rules governing the relations of Statesunder a treaty as between themselves.

17. The CHAIRMAN expressed the hope that theItalian and United Kingdom delegations would be ableto agree on a single proposal, as that would simplify theCommittee's work.



17th meetingTuesday, 4 March 1986, at 10.15 a.m.




Article 45 (Loss of a right to invoke a ground for in-validating, terminating, withdrawing from or sus-pending the operation of a treaty)

1. Mr. WANG Houli (China), introducing his delega-tion's amendment to article 45 (A/CONF. 129/C.1/L.46),said that the article as drafted by the International LawCommission made a distinction between States andinternational organizations.2. Firstly, it placed international organizations in amore favourable position than States, since loss of aright through renunciation, as applied to internationalorganizations, involved a positive act, while acquies-cence, as applied to States, was passive and negative.That would create inequality between States and inter-national organizations as parties to a treaty and, in theview of his delegation, was unnecessary, because whileit was a fact that the structures of international organ-izations differed from those of States, their standingorgans of authority were always in place.3. Secondly, the Commission's commentary to itsdraft article 45 (see A/CONF. 129/4, para. (6)) explainedthat the Commission had wished to avoid the passivityimplied by the use of the word "acquiesces" in sub-paragraph 2 (b). However, the term "acquiesced"would have the same connotation in subparagraph 1 (b)when applied to States, and should also be avoided inthat case.4. Thirdly, his delegation was of the view that theremight be circumstances in which the distinction be-tween States and international organizations might notprotect the latter. Where an international organizationacquiesced in the validity of a treaty and subsequentlychanged its opinion and produced a ground for invali-dating the treaty, it would have to take responsibilityfor any damage caused to other parties to the treaty.To avoid such a situation, his delegation believed thatStates and international organizations should enjoyequal treatment in the matter of the right to invoke aground for invalidating, terminating, withdrawing fromor suspending the operation of a treaty. However, totake account of the fact that international organiza-tions differed in their structure from States, the con-duct of an organization should be defined as the con-duct of its competent organ. The term "competentorgan" should therefore be retained in the article. In theview of his delegation, the questions he had raised

could be answered by combining the two paragraphs ofarticle 45 as proposed in his delegation's amendment.5. Mr. BERNAL (Mexico), introducing his delega-tion's amendment to article 45 (A/CONF. 129/C.l/L.47), said that the proposal to delete the reference insubparagraph 2 (b) of the article to the "competentorgan" of the organization was intended simply to bringthe text into line with the drafting of previous articleswhich had been debated and approved in principle. Inthe course of discussion of article 2, subparagraph 1 (/),it had been widely held that the word "organization"certainly included all of the entity's organs. The sameview had been maintained in the discussion of article 7,subparagraph 4 (b). While his delegation was aware ofthe points made by the International Law Commissionin its commentary, it believed that, for the sake ofconsistency with earlier articles, the words "the com-petent organ" should be deleted from article 45.6. Mr. SOUTANE (Tunisia) said that his delegationhad no difficulty in accepting article 45 as drafted by theInternational Law Commission, since it reflected thecorresponding provisions of the 1969 Vienna Conven-tion on the Law of Treaties.1 Nevertheless, his del-egation found it difficult to understand the reasoningof the Commission in replacing "acquiesced" by "re-nounced" in subparagraph 2 (b). He could not agreethat acquiescence was necessarily passive, since therecould well be occasions when it expressed deliberatechoice or will.7. With regard to the term "competent organ", sincethe reason for its inclusion in article 45 was stated by theInternational Law Commission to be the same as for itsinclusion in article 7 and as the term had now beendeleted from article 7, he wondered whether it waslogical to retain it in article 45. While his delegation wasaware of the difficulties raised by paragraph 2 of arti-cle 45 and thought that the treatment of internationalorganizations should be different from that of States,subparagraph 2 (b) seemed to satisfy the particularrequirements of the structure of international organ-izations.8. His delegation felt that the reference to "compe-tent organs" should be deleted, as had been proposedby Mexico, in order to achieve harmony with article 7as redrafted.9. Mr. PISK (Czechoslovakia) said that his delegationcould accept the Commission's draft article as it stood.Having two separate paragraphs relating to the conductof States and international organizations respectivelywas consistent with the overall pattern of the Commis-sion's draft.

1 See Official Records of the United Nations Conference on the'Law of Treaties (United Nations publication, Sales No. E.70.V.5),p. 287.


10. Both the Chinese and Mexican amendments con-tained some interesting ideas, and they might thereforebe sent to the Drafting Committee for consideration,although his delegation would prefer to see the words"the competent organ" retained.11. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that his delegation favoured approval ofarticle 45 as drafted by the International Law Commis-sion. Its position on subparagraph 2 (b) was that theremust be a reference to the "competent organ". Therewere unfortunately occasions when decisions whichhad not in fact been adopted by the competent organ ofan organization were nevertheless alleged to constituteofficial acts of the organization concerned. The amend-ment calling for deletion of the reference to the "com-petent organ" was therefore unacceptable.

12. Mr. GAUTIER (France) said that article 45,paragraph 1, which was similar to the correspondingprovision of the 1969 Vienna Convention, was a spe-cific application of the rule of general international lawunder which the continuing absence of protest by aState in respect of a legal circumstance concerning itconstituted acceptance on its part. His delegation hadno fundamental objection to that rule as contained inarticle 45, paragraph 1, but wished to point out that thearticle seemed implicitly to exclude loss of the rightto invoke violation of a rule of jus cogens as a groundfor invalidating a treaty. His delegation therefore feltobliged to express a reservation in respect of that pro-vision, which, in its view, would extend the applicationof article 53 of the draft convention, which was unac-ceptable to his delegation.

13. With regard to the two subparagraphs of para-graph 2, he felt that the distinction made by the Inter-national Law Commission between acquiescence andrenunciation was a wise one and should be maintained.The silence of an international organization might, be-cause of the complexity of the organization's structure,be due to factors quite other than the competent organ'simplicit assent. For that reason, his delegation would atpresent have great difficulty in supporting an amend-ment such as that proposed by Mexico which sought todelete the term "competent".

14. The Chinese amendment, by combining the twosubparagraphs of paragraph 2, simplified the draft con-vention. His delegation could accept such an amend-ment if necessary. However, it would prefer to keepto the text proposed by the International Law Com-mission.

15. Mr. MIMOUNI (Algeria) said that article 45 cov-ered two forms of renunciation of the right to invokea ground for invalidating, terminating, withdrawingfrom or suspending the operation of a treaty. One wasexplicit acceptance, the other acquiescence. Thosegrounds should apply equally to States and interna-tional organizations, and that was the aim of the amend-ment proposed by Mexico.

16. With regard to the use of the term "competentorgan", that term had been included by the Interna-tional Law Commission only in second reading, in con-nection with article 7, paragraph 4. As the term did notappear in article 7, it would be logical to exclude it also

from article 45, subparagraph 2 (b). His delegation be-lieved that the words "ouce motif" should perhaps beadded at the end of the French version of the Mexicanamendment.17. Mr. ROMAN (Romania) said that his delegationfound the International Law Commission's draft satis-factory. The Commission had rightly noted that therewere fundamental structural differences betweenStates and international organizations which requiredthe establishment of special rules in respect of the lat-ter. That was why paragraph 2 should exclude the case,referred to in article 46, of invalidation of the consent ofan international organization to be bound by a treatybecause of violation of a rule of the organization con-cerning its competence to conclude treaties. An organ-ization which, in its conduct, was governed by its rel-evant rules must be considered as having renounced theright to invoke a manifest violation of a rule concerningits competence. In his delegation's view, the differ-ences between States and international organizationsfully justified the formulation in subparagraph 2 (b)using the terms "competent organ" and "renounced".

18. While his delegation would have no particulardifficulty in accepting the amendments that had beenproposed, it nevertheless preferred the draft preparedby the Commission.19. Mr. ULLRICH (German Democratic Republic)said that his delegation supported the InternationalLaw Commission's draft of article 45. The amendmentproposed by China involved, in his view, simply amatter of drafting. His delegation would prefer to seethe two separate paragraphs of the article retained.20. Mr. ECONOMIDES (Greece) said that his del-egation supported article 45 as drafted by the Com-mission. However it would not object to the amend-ment proposed by Mexico, since that text reflected thelegal position of an international organization as anentity subject to international law and obligations. Theamendment proposed by China was, in the view of hisdelegation, a matter for the Drafting Committee.21. Mr. DENG (Sudan) said that his delegation sup-ported the text prepared by the International Law Com-mission, but would like to see the Mexican amendmentadopted for the sake of consistency with article 7, asamended. With regard to the amendment proposed byChina, his delegation considered that the two-para-graph form of the article was preferable.22. Mr. BARRETO (Portugal) said that his delegationwas aware of the difficulties presented by article 45, butcould nevertheless accept the draft proposed by theInternational Law Commission. However, his delega-tion could also accept the amendment proposed byMexico, for the sake of consistency with article 7. Heagreed with the Algerian representative's observationconcerning the omission of the words "OH ce motif atthe end of subparagraph 2 (b) in the French version ofthat amendment, and he wondered if the representativeof Mexico could explain the reason for that omission. Inhis view the amendment proposed by China was amatter for the Drafting Committee.

23. Mr. NGUYEN TIEN CUC (Viet Nam) said thatin the view of his delegation the agreement referred to


in subparagraphs 1 (a) and 2 (a) should be explicitlyexpressed by both States and international organiza-tions, recognizing the fact that in both cases that wouldbe done through the competent organs. His delegationtherefore could not accept subparagraphs 1 (b) and2 (b). He agreed that the amendments proposed byChina and Mexico should be referred to the DraftingCommittee.24. Mr. ALM0D6VAR (Cuba) said that, although hisdelegation was generally in favour of the draft articleproposed by the International Law Commission, it hadsome reservations regarding subparagraph I (b). Hisdelegation found it unacceptable that a sovereign State,by virtue of remaining silent, should be considered tohave consented to the validity of a treaty. In the view ofhis delegation, such consent required an express act.He felt that the amendment proposed by China wassimply a matter for the Drafting Committee. While hisdelegation might have been inclined not to accept sub-paragraph 2 (b), it found the wording proposed in theMexican amendment acceptable. As both versions ofthe paragraph had some merit, he agreed that theamendment should be sent to the Drafting Committee.

25. Mr. GUNEY (Turkey) said that his delegationfound the International Law Commission's draft of arti-cle 45 quite satisfactory. However, the amendmentsproposed by China and Mexico might remove ambi-guities, without affecting the substance of the originaldraft. They should therefore be referred to the DraftingCommittee together with the suggestion made by therepresentative of Algeria, concerning the words "OM cemotif.

26. Mrs. THAKORE (India) said that it was neces-sary to consider whether an international organizationmight renounce its right to invoke a ground for in-validating a treaty under the circumstances envisagedin article 45 by express agreement, as provided in sub-paragraph 1 (a), or by acquiescence by reason of con-duct, as provided in subparagraph 1 (b), in the sameway as a State. While it might be desirable, as proposedin the Chinese amendment, to avoid inequalities be-tween States and international organizations, signifi-cant structural differences between the two suggestedthat, on balance, it would be preferable to maintain thedistinctions envisaged in the text prepared by the Inter-national Law Commission. The Mexican amendment,the substance of which had already been agreed to inregard to article 7, could be referred to the DraftingCommittee.

27. Mr. RIPHAGEN (Netherlands) said that his del-egation was in sympathy with the amendment proposedby Mexico because, in respect of conduct which mightbe considered as constituting renunciation of the rightto invoke a ground for invalidating, terminating, with-drawing from or suspending the operation of a treaty,there was no difference between States and interna-tional organizations. For the conduct to be that of theinternational organization, it had to be imputable to thatorganization. That was not the same as the conduct ofthe competent organ. Indeed, there might be doubtsabout the area of competence of organs, for examplewith regard to competence to conclude a treaty, torenounce a right or to perform any other act. If the

conduct was imputable, there was no reason to distin-guish between international organizations and States.28. Referring to the example given by the Interna-tional Law Commission in paragraph (7) of its commen-tary to article 45, he pointed out that the conclusion of atreaty by the organ of an international organizationcompetent to conclude treaties might be followed bythe allocation of funds by the organ competent in finan-cial or budgetary matters. The fact of allocating fundsmight be considered as conduct of a competent organrenouncing the right to invoke the ground for invali-dating the treaty, despite the fact that the organ inquestion was not competent in the matter of concludingtreaties. His delegation therefore felt that from the legalstandpoint it was preferable to make no distinctionbetween States and international organizations, andthat there was a sound legal basis for the amendmentproposed by Mexico.29. Mr. RASOOL (Pakistan) said that his delegationwould have favoured the amendment proposed byChina if it had concerned a drafting matter only, but theuse of the word "acquiesced" in relation to both Statesand international organizations was a substantivechange.30. His delegation could support the amendmentproposed by Mexico, since it not only maintained con-sistency with articles previously approved but alsoavoided problems that might result from a reference tothe "competent organ".

31. Mr. OGISO (Japan) said that his delegation sup-ported the Chinese proposal to merge paragraphs 1and 2 of article 45, since it would considerably simplifythe text. The proposal should be sent to the DraftingCommittee for further consideration. His delegationwas also in favour of the amendment submitted byMexico, since it gave consistency with the new text ofarticle 7 approved by the Committee.32. Mrs. OLIVEROS (Argentina) said that in theopinion of her delegation the amendments submitted byChina and Mexico were not of a drafting nature. It wastherefore inappropriate to leave their consideration tothe Drafting Committee.33. Her delegation supported the Mexican proposal toomit the reference to the "competent organ" from sub-paragraph 2 (b). Clearly, the conduct of an internationalorganization could result from the act of any of itsorgans, and not only from those that were competent toconclude treaties.34. As for the Chinese amendment, although it hadthe merit of simplifying the drafting of article 45, it hadthe drawback of departing from the basic philosophy ofdistinguishing between States and international organ-izations.35. Mr. DROUSHIOTIS (Cyprus) expressed supportfor the Mexican amendment, which he felt would im-prove the text of article 45.36. As for the amendment by China, it was of a draft-ing nature and could be referred to the Drafting Com-mittee.37. Mr. MOTSIK (Ukrainian Soviet Socialist Repub-lic) said that the International Law Commission's text


of article 45 was acceptable to his delegation. The twoamendments which had been submitted did not, in hisview, constitute improvements. In particular, he urgedthat the reference to the "competent organ" of aninternational organization should be retained in sub-paragraph 2 (b).38. Mr. CASTROVIEJO (Spain) said that his delega-tion could accept the Commission's text, but neverthe-less found attractive the two amendments which hadbeen proposed. The Mexican amendment had the meritof simplifying the text of subparagraph 2 (b), the Chi-nese amendment that of a more compact drafting.39. His delegation favoured referring the two amend-ments to the Drafting Committee.40. Mr. MONNIER (Switzerland) said that his del-egation had been at first inclined to accept article 45 as itstood but, on reflection, it found that the Mexicanamendment constituted a welcome improvement. Thatwas not only because of the Committee of the Whole'sdecision to eliminate the reference to "the competentorgan" of an international organization in article 7,subparagraph 4 (b), but because that reference was aninterference in the internal distribution of powers with-in the organization concerned. The reference to "thecompetent organ" of the organization, if retained,might therefore give rise to difficulties, particularlysince the conduct in question might well not be that ofthe organ of the organization which was competent toconclude treaties. For those reasons, his delegationsupported the Mexican amendment.

41. Mr. SIEV (Ireland) said that his delegation fa-voured the International Law Commission's text buthad no objection to the Chinese amendment being re-ferred to the Drafting Committee for consideration,since it had the merit of simplifying the wording.

42. His delegation also favoured referring to theDrafting Committee the Mexican amendment, whichcalled for elimination of the reference to the "compe-tent organ", since the decision had already been takento omit those words in article 7, subparagraph 4 (b).

43. Mr. DALTON (United States of America) urgedthat the amendment by China be referred to theDrafting Committee; it had the merit of bringing draftarticle 45 closer to the corresponding provision of the1969 Vienna Convention on the Law of Treaties.

44. The Mexican amendment also improved the draftarticle, especially in view of the decision already takennot to mention the "competent organ" in article 7,subparagraph 4 (b). That amendment, too, should bereferred to the Drafting Committee.

45. Mr. LUKASIK (Poland) said that his first impres-sion had been that the Chinese and Mexican amend-ments were simply drafting proposals, and that theycould therefore easily be referred to the DraftingCommittee. The discussion which had taken place,however, had made it perfectly clear that those amend-ments were not simply matters of drafting. Both amend-ments, if adopted, could destroy the delicate balanceachieved by the International Law Commission after itslong consideration of the article. The text adopted bythe Commission was based on the existence of struc-

tural differences between States and international or-ganizations. It was because of those differences thatdifferent conditions were specified in paragraphs 1and 2 respectively of article 45. His delegation believedthat the distinction drawn by the Commission in thatarticle was fully justified, and accordingly urged thatthe text of the article should be left unchanged.46. Mr. SANYAOLU (Nigeria) said that his delega-tion favoured adoption of the Mexican amendment,which was consistent with the decision already taken toinclude no reference to the "competent organ" in sub-paragraph 4 (Jb) of article 7.47. The amendment submitted by China, which in-cluded such a reference, should not, he felt, be adoptedin its present form.48. Mr. NGUAYILA (Zaire) said that his delegationsupported the International Law Commission's text.As for the amendments submitted by China andMexico, they had certain merits and could be referredto the Drafting Committee if the majority so desired.49. Mr. EIRIKSSON (Iceland) said that his delega-tion supported the Chinese amendment, subject to dele-tion of the reference to the "competent organ" as pro-posed in the Mexican amendment.50. Mr. SANG HOON CHO (Republic of Korea) saidthat his delegation found the Commission's draft ac-ceptable in principle. He agreed with those speakerswho considered the two amendments to have merit. Re-garding the Chinese amendment, he had some doubts asto the advisability of combining in one paragraph thetwo separate provisions relating to States and to inter-national organizations. He could, however, support theMexican amendment.51. Mr. KRISAFI (Albania) considered that the twoamendments were definitely not of a purely draftingnature. His delegation preferred the International LawCommission's text for article 45.52. The CHAIRMAN noted that certain delegationswere of the opinion that the two amendments containedelements of substance. Nevertheless, the general viewhad been in favour of referring article 45 to the DraftingCommittee with those two amendments. In the absenceof objection, he would take it that the Committeeagreed to refer draft article 45, together with the amend-ments contained in documents A/CONF.129/C.1/L.46and L.47, to the Drafting Committee.

// was so decided.

Article 46 (Provisions of internal law of a State andrules of an international organization regarding com-petence to conclude treaties)

Paragraphs 2, 3 and 4

53. Mr. TUERK (Austria), introducing on behalfof Austria and Japan an amendment to article 46(A/CONF.129/C.l/L.48/Rev.l), said that in the corre-sponding article 46 of the 1969 Vienna Convention, tworequirements were laid down for invoking violation of aprovision of internal law regarding competence to con-clude treaties. The first was that the violation should bemanifest and the second was that it should concern a


rule "of fundamental importance". In the draft arti-cle 46 before the Committee, those two requirementswere specified both for States and for internationalorganizations. There was, however, a significant depar-ture from the 1969 formula as far as international organ-izations were concerned.54. The 1969 provision had been based on the objec-tive theory, thereby departing from the subjectivetheories held before 1969. In the present draft article,the objective approach was retained in paragraph 2,where States were concerned, but a subjective ap-proach was adopted for the case of violation of the rulesof an international organization. In accordance withparagraph 4, a violation was stated to be manifest if"it is or ought to be within the knowledge of any con-tracting State or any contracting organization".55. The objective criterion adopted in 1969—and re-tained for the case of States in paragraph 2 of arti-cle 46—was based on the concepts of good faith and ofthe "normal practice of States". The International LawCommission had departed from that criterion with re-gard to international organizations on the ground thatthe concept of "normal practice" dit not apply to or-ganizations. His delegation was not at all convinced bythat reasoning. It believed that a practice, if not a nor-mal practice, of international organizations could wellbe said to exist. It was for those reasons that his delega-tion and that of Japan had submitted their proposal toamend paragraphs 2 and 4 of article 46 so as to bringthem into line with the language and the approach of the1969 Vienna Convention.56. Mr. RAMADAN (Egypt), introducing his delega-tion's amendment (A/CONF.129/C.1/L.52), said thatthe International Law Commission had arrived at theconclusion that there did not exist any normal practiceof international organizations regarding the person ororgan competent to express its will to be bound by atreaty. In the case of States, the head of State, the headof Government and the foreign minister were, in ac-cordance with normal State practice, recognized ascompetent in the matter, but where international or-ganizations were concerned, the officials in charge ofexternal relations differed greatly from one organiza-tion to another.57. Relying on those considerations, the Commissionhad decided that it had no model on which to base thedetermination of who was entitled to express the con-sent of an international organization to be bound by atreaty. It had accordingly adopted a new approach,namely that of relying on the criterion of awareness ofthe violation. It should, however, be clear to all thatthat criterion could be based only on the essential prin-ciple of good faith, which was the basic principle ofinternational relations.

58. The International Law Commission's com-mentary, and in particular its paragraph (7) (seeA/CONF. 129/4), was significant in that regard. It statedthat if the international organization's treaty partnerswere "aware of the violation, the organization will beable to invoke it against them as a ground for the in-validity of its consent in accordance with the princi-ple of good faith, which applies both to States and toorganizations". He stressed the Commission's con-

clusion that, in such a case, the international organiza-tion would be able to invoke the violation as a groundfor invalidating its consent.59. The purpose of the Egyptian amendment wastherefore precisely to introduce into paragraph 4 thatbasic principle of good faith, eliminating at the sametime the concept of awareness embodied in the words"if it is or ought to be within the knowledge". Apartfrom any other consideration, language such as "oughtto be within the knowledge" could only give rise todoubts and to difficulties of interpretation.60. In conclusion, he stressed that his delegation'samendment would bring article 46 into line with thecorresponding provision of the 1969 Vienna Conven-tion and would introduce into paragraph 4 the objectivecriterion which was already present in paragraph 2 ofthe draft article.

61. Mr. ABDENNADHEUR (Tunisia) introducinghis delegation's amendment (A/CONF.129/C.1/L.54),said that article 46 involved the problem of the securityto which the parties to a treaty were entitled. His del-egation would agree that, contrary to States, inter-national organizations did not have a well-establishedpractice. It therefore accepted that, with regard to thequestion under discussion, the treatment of interna-tional organizations should be different. His delegationcould not, however, accept that for purposes of de-fining the manifest character of a violation of a rule offundamental importance ambiguous criteria should bechosen, such as those set forth in paragraph 4 of arti-cle 46, for that would open the door to divergent inter-pretations.

62. The provisions of paragraph 4 had the furtherdrawback of offering the international organizationsa whole range of opportunities for disputing treatiesconcluded by them by alleging defects of consent, whileStates remained always bound by the objective cri-terion laid down in paragraphs 1 and 2. The treatypartners of international organizations would thus beplaced at a disadvantage, since the organizations wouldbe better protected by paragraphs 1 and 2 of article 46than the States by paragraphs 3 and 4.

63. The fact that international organizations did nothave a "normal practice" might perhaps justify someadjustment with regard to the defects of consent whichcould be invoked by them, but it should not lead tocreating paradoxical situations or codifying ambiguity.The problem was that of determining how something"came to the knowledge" or "ought to be within theknowledge" of a contracting State. That formula in-troduced an element of subjectivity—a subjectivitywhich would not help to solve the problem, but wouldcertainly undermine the security of the treaty partners.

64. For those reasons his delegation had submitted itsamendment, the effect of which would be to retain theidea of a violation being considered manifest if it waswithin the knowledge of any contracting State or anycontracting organization. The words "ought to bewithin the knowledge", however, would be replaced by"should normally have been within the knowledge".The issue of whether such knowledge existed had to bedetermined objectively by verifying whether the treaty


partners, bearing in mind their position in relation to theinternational organization, were in a position to knowof the violation.65. The adoption of any other criteria of a subjectivenature would lead to treaty insecurity, bearing in mindin particular that the international organizations did nothave a "normal practice" and did not have identicallegal systems. The matter was one of importance totreaty partners of international organizations; theycould not be made to bear the burden of investigatingthe extensive documentation of an international organ-ization in order to ascertain its important rules.66. Mr. SZASZ (United Nations), introducing theamendment proposed by the International Atomic En-ergy Agency, the International Maritime Organization,the International Monetary Fund and the United Na-tions (A/CONF.I29/C.1/L.55), remarked that the mat-ter concerned one of the asymmetries between Statesand international organizations that lay at the heart ofthe Conference's work.67. It was clear that the internal law of a State, in-cluding even its most important constituent instrument,its Constitution, was truly internal—and in no sensecomprised international law binding on or even neces-sarily known to international entities. That could not besaid in the case of international organizations, whosemember States were privy to all their internal rules, totheir decisions and resolutions and to their practice. Inparticular, the constituent instruments of internationalorganizations, which were for the most part included ininternational treaties of which States as parties wereobviously aware, were duly registered in accordancewith Article 102 of the Charter of the United Nations.68. According to the terms of article 46, paragraph 3,as drafted by the International Law Commission, aninternational organization would not be able to invokethe violation even of its constituent instruments in or-der to vitiate its consent to be bound by a treaty; did thatnot imply the sanctioning of possible violation of thoseinstruments? If a treaty were entered into in violation ofa constituent instrument, that would presumably con-stitute a violation of that treaty.69. The four-organization amendment sought toremedy such a potential state of affairs by excepting—solely for the purposes of paragraph 3 of article 46—the constituent instruments of an organization from itsrules as defined in draft article 2, subparagraph 1 (/);from another point of view, it sought to indicate thatany provision of a constituent instrument was, as atreaty, "a rule of fundamental importance" for thepurposes of paragraph 3 of article 46.70. It should be pointed out that the issue of Arti-cle 103 of the Charter of the United Nations, raised anddiscussed during the Committee's earlier deliberationson articles 27 and 30, was also of some relevance to thequestion now under discussion. Like any other con-stituent instrument, the Charter of the United Nationswas, so to speak, hidden in the background of theInternational Law Commission's draft of paragraph 3,and at risk in the manner he had described; but the caseof the Charter was special, in that Article 103 providedthat the Charter should always be superior to othertreaties. However, the sponsors of the four-organiza-

tion amendment and the other international organiza-tions which had been consulted had determined not tobuild their proposal around that particular case, butrather to seek the broadest possible formulation of theirconcerns, which would be those of all internationalorganizations whose constituent instruments weretreaties.71. Mr. ULLRICH (German Democratic Republic)expressed his delegation's strong support for the basicidea underlying article 46. It also supported the four-organization amendment to paragraph 3, but it wouldprefer the word "including" in the final phrase to bereplaced by "in particular".72. The Commission's draft of paragraphs 2 and 4 didnot entirely satisfy his delegation, which was not happywith the subjective formulation "if it is or ought to bewithin the knowledge''. The amendment by Austria andJapan had the merit of providing identical wording foreach of those paragraphs and of referring to less subjec-tive, and thus more acceptable, criteria.

73. His delegation believed that the draft article, to-gether with the Austrian-Japanese amendment and theEgyptian amendment, which tended in the same direc-tion, could be transmitted to the Drafting Committee.74. Mr. OGISO (Japan) said that as a co-sponsor ofthe amendment already introduced by the represen-tative of Austria he merely wished to suggest to theDrafting Committee the possibility of combining theseparate provisions in a single paragraph.

75. The Egyptian amendment, in omitting from theprovisions relating to international organizations anyreference to the criterion of normal practice, estab-lished a difference in the treatment of organizationsand States that was unacceptable to the Japanese del-egation.

76. Mrs. VLASOVA (Byelorussian Soviet SocialistRepublic) said that her delegation approved the Inter-national Law Commission's draft in principle, but be-lieved that it would be improved by the incorporation ofsome of the proposed amendments. In particular, thefour-organization amendment very rationally soughtto include a reference to constituent instrumentsin paragraph 3; she believed that it should appear inthe text before the reference to rules of fundamentalimportance. The Austrian-Japanese amendment, andthe similarly intentioned Egyptian amendment, alsodeserved support. She considered that all the pro-posals, together with the Commission's draft, could bereferred to the Drafting Committee.

77. Mr. FISCHER (Holy See) pointed to the connec-tion between article 46—which his delegation consid-ered to be of the utmost importance—and article 27.Both reflected the relationship between internationaland municipal law; they established that the former wasthe prevailing system vis-a-vis national rules, the onlyexception being in regard to the conclusion of treaties;there, internal law mattered, but only if the internal ruleviolated was of fundamental importance and if the vio-lation was manifest.

78. Since it would patently be a step backwards in thedevelopment of international law if an exception were


made in favour of treaty obligations entered into by in-ternational organizations, the International Law Com-mission had determined in article 27 that the principleof pacta sunt servanda should, with the reservationsexpressed in article 46, prevail over any conflictinginternal rules of international organizations.

79. He submitted, with all due respect for the specialposition of those bodies, that they lived, once estab-lished, in the world of international law, which in turnwas based on good faith and the security of treatyrelations. Any attempt, therefore, to accord priority totheir internal rules over their treaty obligations wouldconstitute a serious threat to the security of legal rela-tions between them and their treaty partners.

80. His delegation deplored the fact that in para-graph 4 the definition of the "manifest" character ofa violation lacked any reference to an objective crite-rion, and that the reference to the principle of goodfaith envisaged during the first reading had now beenomitted. The Austrian-Japanese amendment appearedto overcome those defects by replacing a purely subjec-tive criterion with a more objective one, as well as byreintroducing the principle of good faith. A similar im-provement was offered by the Egyptian amendment.His delegation could therefore support those proposals.It had reservations, however, with regard to the Tuni-sian amendment, which omitted any reference to theprinciple of good faith.

81. Mr. R1PHAGEN (Netherlands) observed thatwhile paragraphs 1 to 3 of article 46 quite clearly harkedback to the 1969 Vienna Convention on the Law ofTreaties, and the Austrian-Japanese proposal con-cerning paragraph 4 also obviously returned to thatConvention, the difference introduced in the Commis-sion's draft of paragraph 4 was a matter of drafting only;it introduced no unacceptably subjective criterion: torefer to what "ought to be" known was to refer to somenorm of knowledge that must be considered objective.

82. With respect to international organizations, on thebasis of its belief that they lacked "normal practice"the Commission had evidently been concerned to de-part from the formula used in the 1969 Vienna Conven-tion with respect to States. However, its draft did notabandon the objective element; it simply introducedanother factor, to be linked with normal practice andgood faith where the application of paragraph 4 wasconcerned. He considered that the International LawCommission's text, together with the Austrian-Japa-nese and the Egyptian amendments, could be referredto the Drafting Committee. On the other hand, he hadsome difficulties with the Tunisian amendment, par-ticularly because it omitted any reference to good faith,which was, after all, a tenet of international law inrelations between States.

83. The four-organization amendment posed prob-lems for the Netherlands delegation. While the Inter-national Law Commission, after lengthy discussion andconsideration of other drafts, had decided—rightly, hebelieved—to deal in principle with States and inter-national organizations in the same way when making adistinction between internal rules and internal rules "offundamental importance", the sponsors of the amend-

ment appeared to be suggesting that any rule containedin a constituent instrument was of fundamental impor-tance. That was manifestly not the case, when all theorganizations and rules involved were taken into ac-count. The proposal seemed to alter considerably thesubstance of everything contained in the draft articles.His delegation would therefore have to oppose accep-tance of that amendment.84. Mr. STEFANINI (France) said that his delegationfound the International Law Commission's draft of thearticle, which dealt with a particular application ofthe principle of good faith, to be generally satisfactory.It considered that the words "devrait etre objective-ment evidente" in the French version of paragraph 2should—in conformity with the juridically and gram-matically more correct wording of article 46, para-graph 2, of the Vienna Convention—be replaced by"est objectivement evidente". In paragraph 3, the term"rule of fundamental importance" lacked precision; itwould doubtless be impossible, however, to find a bet-ter or clearer term.85. In the light of those considerations, his delegationwas unable to support the amendments which had beenproposed.86. Mr. RASOOL (Pakistan) said that his delegationsupported the Austrian-Japanese amendment, whichfollowed closely the formulation in the 1969 ViennaConvention, established symmetry and avoided therisk of problems resulting from conflicting interpreta-tions. His delegation would also have fully approvedthe Egyptian amendment for the same reasons had itnot omitted the reference to normal practice, for rea-sons that, if understandable, were not altogether con-vincing. It believed that a combination of the criteria ofpractice and good faith would take care of all situations.The Tunisian amendment, by introducing the qualifica-tion "normally", appeared to create a problem similarto that which it sought to solve.

87. His delegation believed that all the amendmentsproposed, being inspired by the same intention, mightbe referred to the Drafting Committee.

88. Mr. HOLDER (International Monetary Fund),making, first of all, some comments of a general nature,noted the balance struck in the draft articles between afairly considerable amount of prescription in specificprovisions, and flexibility. It was important to takeaccount of the fact that the practice of internationalorganizations was developing and not to inhibit itsdevelopment, having regard to the diversity of the or-ganizations themselves and the desires of the partiesto international agreements, whether organizations orStates. Stability of expectations—pacta sunt ser-vanda—was a major general objective to which, forobvious reasons, organizations such as the Interna-tional Monetary Fund and the World Bank attached theutmost importance. The integrity of the organizationsand their legal and financial credibility must be main-tained, in accordance with their charters and in theinterest of their members.

89. A goal of the present Conference should be toproduce a treaty of practical use to the internationalorganizations. While the objective appeared to be that


the draft articles under consideration should constituteresidual rules (that was what the International LawCommission had indicated in 1982), the draft articlesclearly contained general prescriptions that would haveconsiderable, even constitutional, impact on interna-tional organizations. The Fund anticipated, on the basisof the rules of procedure of the Conference and subjectto the final clauses adopted, that international organ-izations would have the option of acceding to the newconvention. It was therefore most important that thelatter be compatible both with their constituent instru-ments and with their practice.

90. Against that background, and as a co-sponsor ofthe amendment to article 46 in document A/CONF. 129/C.1/L.55, he endorsed the comments by the represen-tative of the United Nations. The Commission's textcontained no criterion for determining objectively whatconstituted a "rule of fundamental importance". Thatwas in contrast with the treatment accorded to theconcept of what was "manifest". The legal adviser ofan international organization would doubtless be in-clined to consider that the rules contained in its con-stituent instrument were indeed of fundamental impor-tance—especially if that instrument dealt with generalprinciples. In a sense, therefore, the four-organizationamendment merely sought to elucidate that point. Hebelieved that the proposal was in the spirit of the Inter-national Law Commission's commentary, particularlythat in its 1982 report.

91. Mr. ADEDE (International Atomic EnergyAgency), speaking as a sponsor of the four organiza-tions' amendment, said that the rationale of the pro-posal had already been explained. Basically, the spon-sors considered that, since no attempt had been made todefine the term "a rule of fundamental importance", itwould be useful to make it quite clear that the con-stituent instrument of an international organizationcould contain such a rule. His delegation had also spon-sored the amendment because it considered it essentialto give international organizations the right to invoketheir constituent instruments, where appropriate, inorder to achieve the purposes of article 46, paragraph 3.

92. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that his delegation supported in principlethe amendment proposed by the four organizations, butwould suggest that the last part of paragraph 3, as thusamended, should be reworded to read " . . . unless thatviolation was manifest and concerned constituent in-struments or any other rule of fundamental impor-tance". The Drafting Committee might wish to con-sider that suggestion. His delegation could also acceptthe Austrian-Japanese amendment and the Egyptianamendment.

93. Mrs. DIAGO (Cuba) said that her delegationcould support the amendments proposed by Austriaand Japan, Egypt and the four organizations, all ofwhich aimed at improving and amplifying the Commis-sion's text, although it considered that the Austrian-Japanese amendment was most in keeping with thepurposes of the 1969 Vienna Convention.

94. Mr. BERNHARD (Denmark) said that his delega-tion could have accepted the draft article as proposed

by the International Law Commission, but found meritin the attempts of Austria, Japan and Egypt to bring thattext more into line with the corresponding provisions ofthe 1969 Vienna Convention. It therefore supported theamendments proposed by those countries and agreedthat they should be referred to the Drafting Committee.95. The four-organization amendment, however, wastoo far-reaching, and his delegation would therefore notrecommend its adoption.96. Mr. AL-JUMARAD (Iraq) said that his delegationapproved the first three paragraphs of the text proposedby the International Law Commission. It was unable toaccept the four-organization amendment, which gaverise to the problems to which the Netherlands represen-tative had referred.97. With regard to article 46, paragraph 4, it noted thatthe Tunisian amendment took account of one aspectwhich had been disregarded in the text submitted by theCommission, and that the Egyptian amendment pro-vided that good faith should be the main consideration.Since those two amendments were complementary, theCommittee might wish to refer them to the DraftingCommittee.98. He had certain reservations concerning the Aus-trian-Japanese amendment, particularly in regard to itsreference to the normal practice of international organ-izations, since, in his delegation's view, such practicewas not established and could not therefore be invoked.

99. Mr. SANYAOLU (Nigeria) said that his delega-tion favoured an objective test, such as had been adopt-ed for the 1969 Vienna Convention, rather than a sub-jective one, such as that in the Commission's draft, andit saw no reason to introduce different criteria in thepresent text. It therefore supported the amendmentsproposed by Austria and Japan, Egypt and Tunisia, allof which aimed at substituting an objective for a subjec-tive test. In its view, those amendments should bereferred to the Drafting Committee.

100. While his delegation sympathized with the viewsexpressed by the international organizations sponsorsof their amendment, it pointed out that the definitionof the term "rules of the organization" in article 2,subparagraph 1 (/)> included constituent instruments.It would therefore have difficulty in supporting thatamendment.

101. Mr. ECONOMIDES (Greece) said that his dif-ficulty with article 46 arose from the difference in re-gime between paragraphs 2 and 4. Whereas the formerprovided that, in order to establish that a violation wasmanifest, the test should be an objective one based onthe criteria of good faith and the normal practice ofStates, the latter provided for the single criterion ofknowledge. That difference of approach—in abstractoversus in concreto—was not justified, in his view, andparagraph 4 should therefore be amplified and im-proved.

102. Referring to the amendments before the Commit-tee, he said that he regarded the introduction of theword "normally", as proposed in the Tunisian amend-ment, as an improvement, since it underlined the objec-tive nature of paragraph 4. So far as the rest of the


amendment was concerned, however, he had the samedifficulties as with paragraph 4 of the Commission'sdraft. The Egyptian amendment was better, but wasstill not altogether satisfactory since it made no mentionof practice. The Austrian-Japanese amendment, on theother hand, had his delegation's full support, since itprovided for an identical regime in the case of bothinternational organizations and States.103. He was unable to support the amendment of thefour organizations, which seemed both unnecessaryand illogical. In his view, the expression "the rulesof the organization regarding competence to includetreaties" covered the rules contained in constituentinstruments, and he was therefore surprised to seeconstituent instruments treated as though they weresomething different from the rules of the organization,particularly given the definition of "rules of the organ-ization" in article 2, subparagraph 1 (/')•104. Mr. WANG Houli (China) said that his delega-tion supported the Austrian-Japanese amendment andthe Egyptian amendment, and agreed that they shouldbe referred to the Drafting Committee.105. Mr. DENG (Sudan) said that, for the reasonsalready indicated by the representatives of the HolySee and the Netherlands, both the Austrian-Japaneseamendment and the Egyptian proposal clarified theInternational Law Commission's text and removed thesubjective test. Those two amendments could thereforebe referred to the Drafting Committee. The amend-ments of Tunisia and the four organizations were,however, unacceptable to his delegation, as they didnot seek to remove the element of subjectivity.106. Mr. ABDENNADHEUR (Tunisia) observed,with reference to his delegation's amendment, that ifa contracting State or a contracting organization wasaware of a violation it would be able to invoke thatviolation in accordance with the principle of good faith,as was pointed out in the International Law Commis-sion's commentary to article 46.107. Mr. CASTROVIEJO (Spain) said that the mainthrust of draft article 46 was acceptable to his del-egation. However, the Austrian-Japanese amendmenthad the merit of offering homogeneous wording and ofbeing close to the corresponding provision of the 1969

Vienna Convention. It therefore had his delegation'ssupport. The subject of the four-organization amend-ment to paragraph 3 was already dealt with in article 2,subparagraph 1 (/')•108. Mr. MONNIER (Switzerland) said that the dif-ference between paragraphs 2 and 4 of draft article 46,which dealt with imperfect ratifications, stemmed fromthe fact that while, according to the International LawCommission, there was a normal practice of States inthe matter of a manifest violation of their internal lawsor rules regarding competence to conclude treaties,there was no such normal practice of organizations.That statement, however, required qualification: thenormal practice of States was the same for all States inits broad lines, but there were also some differences.For instance, in some countries, under their constitu-tions, certain treaties had to be submitted for approvalnot only by parliament but also by the people, whichwas a further obstacle to be surmounted before theauthorities concerned could express the consent of theState to be bound.

109. While it could be said that in the case of inter-national organizations there was no general practicecomparable to that of States, there was the normalpractice of each individual organization which must beknown to the contracting parties concerned. Accord-ingly, although there was a difference between Statesand international organizations in the matter of prac-tice, it was not as clear-cut as article 46 would suggest.

110. With that in mind, and so far as paragraph 2 ofarticle 46 was concerned, he did not think it would beadvisable to depart from the text of the correspondingprovision of the 1969 Vienna Convention, and his del-egation therefore supported the Austrian-Japaneseamendment. The terms of paragraph 4 did not differbasically from those of paragraph 2, but there was asubjective element in the latter which could be a sourceof uncertainty, and hence of difficulty. The Austrian-Japanese amendment therefore constituted a welcomeimprovement.

111. His delegation also supported the Egyptianamendment.


18th meetingTuesday, 4 March 1986, at 3.20 p.m.




Article 46 (Provisions of internal law of a State andrules of an international organization regarding com-petence to conclude treaties) (concluded)

Paragraphs 2, 3 and 4 (concluded)

1. Mr. HERRON (Australia) said that paragraph 3,modelled by the International Law Commission onparagraph 1 ofarticle46of the 1969 Vienna Convention


on the Law of Treaties,1 was to be welcomed to theextent that it ensured consistency and stability in theprocedural rules whereby an international organizationcould invoke a violation of its rules as invalidating itsconsent to be bound by treaty. However, on the issue ofwhen such a violation was manifest, paragraph 4, inspecifying that it "ought to be within the knowledge"of any contracting party, departed from the languageof the 1969 Vienna Convention and introduced an un-acceptable element of subjectivity and uncertainty;moreover, it suggested that the circumstances in whichthe rule might be invoked were different for interna-tional organizations.2. As far as possible, the rule for international organ-izations should be the same as for States. For manyStates, especially developing States and States whichwere not members of the international organizationseeking to invoke the rule, the rules of the organizationregarding competence to conclude treaties might not bereadily available, i.e., be "manifest". It would hardlybe acceptable for the organization to rejoin that they"ought" to have been. Objections had been expressedin the International Law Commission to the notion ofnormal practice in relation to international organiza-tions on the ground that there was no practice commonto all organizations. However, his delegation did notregard that as an insuperable obstacle to the inclusion ofthe term "normal practice" in paragraph 4 as had beenproposed by Austria and Japan in their amendment(A/CONF. 129/C. 1/L.48/Rev.l), since the word "nor-mal" could be interpreted flexibly and be considered inthe light of the organization seeking to invoke the rule.

3. His delegation would have difficulty in agreeingwith the subjective formulation proposed for article 46,paragraph 4, by Tunisia (A/CONF. 129/C. 1/L.54). Itwould have less trouble with the Egyptian proposal forthat paragraph (A/CONF. 129/C. 1/L.52), since it was animprovement on the Commission's text and did containan objective element. However, its language was notparallel to that of the corresponding paragraph in arti-cle 46 of the 1969 Convention. All in all, therefore,his delegation supported the proposal by Austria andJapan, which brought both paragraph 4 and paragraph 2of articles 46 into line with the corresponding articleof the 1969 Vienna Convention. If that proposal wasadopted, the Drafting Committee should be able toreduce the two paragraphs to a single paragraph qual-ifying the term "violation" in both of the other para-graphs of the article.

4. With regard to the proposal by four internationalorganizations to amend article 46, paragraph 3 (A/CONF. 129/C. 1/L.55), he was not convinced that theaddition which they suggested was necessary; also, itmight have the effect of giving some provisions of con-stituent instruments a status which they did not have.However, his delegation would not oppose the changeif it was generally acceptable to the Committee.5. Mr. LUKASIK (Poland) said that the use of theterms "manifest" and "fundamental" gave rise to sub-


jective interpretations. That was even more the casewhen those terms were applied to international organ-izations, since violations of their rules might be as-sessed differently by different member States. Therewas in fact no way to equate the internal law of a Statewith the rules of an international organization. His del-egation supported the Austrian-Japanese amendmentto paragraph 2 and the Egyptian amendment to para-graph 4. The term "normal practice" in the Austrian-Japanese proposal for paragraph 4 was troublesome.

6. His delegation approved in principle the addition toparagraph 3 proposed by four organizations, but wouldlike the paragraph to be worded along the lines sug-gested at the previous meeting by the German Dem-ocratic Republic and the Union of Soviet Socialist Re-publics. He did not share the view that the constituentinstrument did not always contain rules of fundamentalimportance; he could not conceive of any other rulesbeing more important. Furthermore, references madeat the previous meeting to the "internal" rules of inter-national organizations were inaccurate: their consti-tuent instruments were rules of international law.

7. Mrs. GOLAN (Israel) said that although there wasan understandable tendency to model the draft conven-tion on the 1969 Vienna Convention, a clear differenceexisted between international organizations and States,and therefore different criteria might have to be appliedto their relations. Article 46 should embody the princi-ple of good faith, as well as both a subjective and anobjective criterion for determining the manifest charac-ter of a violation, according to the case. Her delega-tion was therefore satisfied with the International LawCommission's wording of paragraph 4. In view of thevarious amendments which had been submitted tostress the objective criterion, she suggested that para-graph 4 should be referred to the Drafting Committee toensure that both types of criteria were clearly broughtout. Her delegation supported the amendment pro-posed by the four organizations to paragraph 3.

8. Mr. WOKALEK (Federal Republic of Germany)said that his delegation was basically in favour of theCommission's text of article 46. The amendments pro-posed by Austria and Japan, Egypt and Tunisia weremainly of a drafting nature. He had some preference forthe Austrian-Japanese proposal, although he had dif-ficulty with the term "normal practice", which seemedto imply practice that was the same for all internationalorganizations. The amendment of the four organiza-tions caused his delegation some concern. The text ofarticle 46 must endeavour to maintain a balance be-tween legal security for those negotiating in good faithwith an international organization and the rules of thatorganization. The term "fundamental importance" inparagraph 3 was sufficiently comprehensive, and en-compassed the organization's constituent instrument.If the amendment to paragraph 3 was adopted, a con-stituent instrument might be a source of power to in-validate a treaty, which was in the nature of jus cogens.That would confer undue privilege on international or-ganizations.

9. Mrs. THAKORE (India) said that the Commis-sion's text of article 46 would be improved by the


Austrian-Japanese amendment and brought into linewith the corresponding text of the 1969 Vienna Conven-tion. That proposal should be referred to the DraftingCommittee, together with the Egyptian amendment,which also contained constructive ideas. The wordingproposed by Tunisia might create difficulties. With re-gard to paragraph 3 of the article, she endorsed the viewexpressed by the Greek representative at the previousmeeting that the amendment by the international organ-izations was superfluous in view of the definition of theexpression "rules of the organization" in article 2,subparagraph 1 (/)•

10. Mr. SANG HOON CHO (Republic of Korea)agreed with the observation in paragraph (5) of theInternational Law Commission's commentary to arti-cle 46 (see A/CONF. 129/4) that, if account was taken ofthe presence of one or more organizations in treatyrelations, different wording from that of the 1969Vienna Convention should be adopted, and that it wasthe normal practice of States which served as the basisto which the other parties to the treaties were entitled torefer. In the case of international organizations, it wasappropriate that the "manifest" character of a violationshould be determined by the criterion of knowledge.Although criticism had been levelled at the subjectivityof such a criterion, he considered that an objectiveassessment would always be feasible if regard was hadto the circumstances which ought to enable any con-tracting party to obtain the knowledge in question. Hisdelegation suggested that the Austrian-Japanese andEgyptian amendments to paragraphs 2 and 4 should bereferred to the Drafting Committee together with theoriginal draft, because essentially they proposed thesame criteria. It approved the Commission's text forparagraph 3 of the article.

11. Mrs. JONZY (European Economic Community)said that the International Law Commission had de-cided against including a reference to the normal prac-tice of international organizations in the definition of"manifest violation" in article 46, paragraph 4, becauseit considered that, in view of their diversity, there were"no general guidelines or standards by which the basisfor the conduct of the treaty partners of an organizationmay be defined", as it said in paragraph (6) of its com-mentary to article 46. However, it might be wonderedwhether that position was not somewhat too categor-ical, since the Commission had recognized in para-graph (7) of its commentary to article 7 (ibid.) that thehighest-ranking official of an organization was usuallyconsidered in practice as its representative for the pur-poses of expressing consent to be bound by a treaty. Inthe case of the Community, the constituent treatiescontained very specific rules about treaty-making pro-cedure, from which an established practice had beendeveloped. The Community therefore considered thatits practice in the matter could be regarded as similar tothat of a State. It therefore supported the Austrian-Japanese amendment.

12. Mr. ALMEIDA LIMA (Portugal) said that in prin-ciple his delegation approved the International LawCommission's text, which took a positive approach tothe subject-matter of article 46. It might neverthelessbe improved through the adoption of the Austrian-

Japanese amendment. The Egyptian amendment wassimilar in effect but did not refer to practice, and thatwas needed for an adequate definition of a manifestviolation in the case of an international organiza-tion. The Tunisian proposal lacked a reference to goodfaith, which was an essential element of the rule to beexpressed in paragraph 4 of the article. His delegationhad difficulty with the amendment to paragraph 3 pro-posed by the international organizations, because notall the provisions of the constituent instruments of in-ternational organizations could be regarded as rules offundamental importance. He suggested that the amend-ments by Austria and Japan and by Tunisia should bereferred to the Drafting Committee with the Commis-sion's text.

13. Mr. KOURULA (Finland) recalled that in its ad-visory opinion of 20 July 1962,2 the International Courtof Justice had expressed the view that, if it was agreedthat action by the Organization was within the scope ofthe functions of the Organization, but alleged that theaction in question had not been carried out in conform-ity with the division of functions which the Charter ofthe United Nations prescribed, it was irregular as amatter of the internal structure of the Organization; andthat both national and international law contemplatedcases in which a body might be bound as to third partiesby the ultra vires act of an agent. The same opinion hadbeen brought out by the International Law Commissionin paragraphs 3 and 4 of article 46. His delegation con-sidered that the rules of an organization were externallyrelevant in a negative sense, i.e., if they containedrestrictions on the capacity of the organization. Ac-cordingly, under paragraph 3 international organiza-tions were, in cases of manifest violations, allowed torefer only to those rules of fundamental importance ofsuch a character that they limited the treaty-makingcapacity of such organizations vis-d-vis third States.His delegation therefore found it difficult to regard theamendment of the international organizations as animprovement on the existing text. It had no difficulty insupporting the Austrian-Japanese proposal.

14. Mr. EIRIKSSON (Iceland) said that he supportedthe International Law Commission's text as amendedby the Austrian-Japanese proposal.15. Mr. TUERK (Austria) said that his delegationapproved the Commission's text of paragraph 3, whichwas consistent with that of paragraph 1. Although inprinciple it was ready to accept the idea underlying theamendment of the international organizations, he won-dered whether the reference in it to constituent in-struments was not too rigid. Was every provision in aconstituent instrument really a rule of fundamental im-portance? The constituent instrument of an interna-tional organization was comparable to the constitutionof a State. Certainly, rules of fundamental importancewere enshrined in a constitution, but not all its normswere of fundamental importance in the sense of para-graph 3. If the Committee wished to include a refer-ence to constituent instruments in that paragraph, it

! Certain Expenses of the United Nations (Article 17, para-graph 2. of the Charier), Advisory Opinion of 20 July 1962:1.C.J.Reports 1962, p. 151.


would be best if the concluding part of the paragraphread: " . . . rule of fundamental importance, includingin particular those contained in the constituent in-struments . . .".16. Mr. TEPAVICHAROV (Bulgaria) said that evenin article 46 it must be borne in mind that States andinternational organizations were not equal. Parallelismwith the corresponding provision of the 1969 ViennaConvention was necessary in paragraph 1, but para-graph 3 was correctly asymmetrical. He supported thefour-organization amendment to that paragraph, whichwas intended to clarify the notion of rules of fundamen-tal importance by reference to the constituent instru-ments of the organization. Although it might be con-ceded that, as the Austrian representative had said, notall the provisions of constituent instruments were offundamental importance, it was equally true that allthe rules of fundamental importance were to be foundin those instruments. His delegation could support theAustrian-Japanese amendment to paragraph 2, but itpreferred the Egyptian proposal in regard to para-graph 4; the notion of normal practice was difficultto define in respect of international organizations,because each organization had its own practice. Theamendment proposed by Tunisia was inappropriate.

17. Mr. UNAL (Turkey) said that, while his delega-tion had no difficulties with the Commission's text, itcould support the joint proposal by Austria and Japan,which sought to establish a parallel between the 1969Vienna Convention and the draft articles. The Egyptianproposal had similar intentions and substantially im-proved the text. Both proposals might therefore bereferred to the Drafting Committee. His delegation fullyunderstood the idea underlying the Tunisian proposal,but wished to point out that it related only to para-graph 4 of the article and dealt only with internationalorganizations which, in the context, should be treatedlike States. His delegation took the view that the addi-tion proposed in the amendment of the internationalorganizations would create difficulties, and it thereforecould not support it.

18. Mr. VASSILENKO (Ukrainian Soviet SocialistRepublic) said that in the opinion of his delegation theprovisions in article 46 were properly balanced in prin-ciple. They proceeded from the particularities and dis-tinctive characteristics of the special provisions of theinternal law of States, on the one hand, and the specialprovisions of the rules of international organizations,on the other. They were precisely the criteria for as-sessing situations in which treaties—concluded by sub-jects of international law so different in their nature—should be recognized as legally valid or invalid.

19. The amendment of the international organiza-tions, which contributed to a more specific reflection ofthe particularities of the provisions in the rules of inter-national organizations as compared to the provisions ofthe internal law of States, merited particular attentionin this connection. The fact that the concept of "rules ofthe organization" had still not been defined could notserve as a convincing argument against that amend-ment, since the main element in any definition of suchrules would be the constituent instrument of the organ-ization.

20. The amendment of Austria and Japan could servefor editorial improvements in paragraph 2 of article 46,while the amendment of Egypt could serve for im-proving paragraph 4 of that article. Along with theseeditorial improvements it should be pointed out that theuse of a term in the Austria-Japan amendment was notclear, as it could be given different interpretations, inthe Russian language, to mean: "customary practice"(pratique coutumiere), "usual practice" {pratiquehabituelle) or "normal practice" {pratique normale).To prevent a misunderstanding, it would be better touse the term "established practice".21. Mr. SZENASI (Hungary) expressed support forthe proposal by Austria and Japan and for that of Egypt.Criticism had been voiced about the amendment sub-mitted by the international organizations, but, as hisdelegation understood it, that proposal did not implythat every provision of a constituent instrument was offundamental importance. The scope of article 46, asreflected in its title, was confined to rules concerningthe treaty-making competence of an international or-ganization; consequently, the reference to the rules ofthe organization in paragraph 3 did not embrace all therules of an international organization, as did article 2,subparagraph 1 (/). but only those which regulated com-petence to conclude treaties. The international organ-izations' amendment did not therefore involve the con-stituent instrument as a whole. It merely stated thatthose provisions of the constituent instrument whichconcerned competence to conclude a treaty were offundamental importance. Since the constituent in-struments of international organizations were rarelyexplicit about competence to conclude treaties, a ref-erence to all the rules which they contained should notcause any difficulty. His delegation supported the oralproposal made by the Soviet Union at the previousmeeting; the suggested change of word order for theconcluding part of paragraph 3 appropriately reflectedthe idea underlying the paragraph. On the whole, hisdelegation considered that all the proposals submittedfor article 46 should be referred to the Drafting Com-mittee.22. Mr. DUFEK (Czechoslovakia) said that the Com-mission's draft was a satisfactory solution to the ques-tion of the relationship between the invalidity oftreaties, the internal law of States, the rules of inter-national organizations and their competence to con-clude treaties; it also expressed the view that therewas no "normal practice" of organizations. The pro-posal by Austria and Japan would not interfere with thedevelopment of practice in international organizations.That amendment was therefore acceptable, and mightbe referred to the Drafting Committee. The proposalby Egypt deserved attention, but the Committee wouldneed to consider how the criterion of good faithshould be established. His delegation could support theamendment submitted by the international organiza-tions, which might also be referred to the DraftingCommittee. However, it might be desirable to clarifyparagraph 3 further along the lines suggested by therepresentative of the Byelorussian Soviet Socialist Re-public at the previous meeting.23. Mr. SATELER (Chile) said that his delegationattached special importance to the provisions of arti-


cle 46, particularly when those provisions were takenin conjunction with article 27. in emphasizing the su-premacy of international law in regard to the law oftreaties and international responsibility. The Commis-sion's draft was a balanced one and deserved support.However, some of the amendments to it might improvethe text, particularly the proposal by Austria and Japan.In the light of the observations made by the represen-tative of the Netherlands at the previous meeting, thatamendment, together with the proposal by Egypt,might usefully be referred to the Drafting Committee,since neither involved a question of substance. Thepoints made by the representative of the United Na-tions in introducing the amendment proposed by theinternational organizations were persuasive. However,it must be borne in mind that, unlike the internal law ofStates, the constituent instruments of international or-ganizations were international agreements which werelegally binding under international law. In that respect,the article should not provide a basis for interpreta-tions which ignored the place of the fundamental princi-ple of respect for and observance in good faith of inter-national agreements. His delegation could thereforesupport the Commission's draft as well as the amend-ments of the international organizations, Egypt, andAustria and Japan.

24. Mr. DALTON (United States of America) ex-pressed his delegation's support for the amendmentproposed by Austria and japan, which establishedan objective standard of determining when article 46should apply. In developing the corresponding articleof the 1969 Vienna Convention, the International LawCommission had indicated that the objective of an arti-cle such as article 46 was the establishment of a rea-sonable provision for the security of legal relationsbetween treaty partners. Austria and Japan's proposalmet that standard. The proposal made by the inter-national organizations did not, and consequently hisdelegation could not support it: it widened the numberof provisions on which an international organizationmight seek to rely in asserting the invalidity of its con-sent to be bound by a treaty and would weaken thesecurity of legal relations under treaties concluded byinternational organizations. Some speakers had saidthat the scope of the additional words in that amend-ment "including the constituent instruments of the or-ganization" would not broaden in a major way the rulein article 46. However, constituent instruments of inter-national organizations were frequently not labelled insuch a way that it became easy for a negotiating Stateto identify precisely which articles of the constituentinstrument authorized treaty-making. For example,where an agreement with the United Nations was con-cerned, what Article or Articles of the Charter would beconsidered in determining whether it contained a ruleon invalidity of consent that would be relevant if theUnited Nations wished to allege that the provisions ofthe Charter relating to the conclusion of treaties had notbeen complied with? The problem was even more dif-ficult under the charters of many other internationalorganizations, which were more complicated and moredetailed than the Charter of the United Nations. Forexample, the treaty establishing the European Eco-nomic Community had several hundred articles, some

of which dealt with treaty-making capacity and wereclearly labelled as such, whereas others which mightbe the source of treaty power were not so labelled.The proposal by the international organizations wouldtherefore put a greater burden on States negotiatingwith them in trying to determine what the treaty-makingcapacity of the organization was, and would increasethe possibility for weakening the stability of treaty re-lations. For that reason his delegation could not sup-port it.

25. Ms. WILMSHURST (United Kingdom) said thatin considering article 46, her delegation had startedfrom the obvious fact that the Commission's draft laiddown some basic rules on competence to concludetreaties. It felt that the same basic exception in para-graphs 1 and 3, and accordingly the description of thatexception in paragraphs 2 and 4, should be stipulatedfor States as for international organizations. However,it had some difficulty with the wording of paragraph 4,which gave no guidance as to how to interpret whether aviolation ought to be within the knowledge of a State oran organization. With that in mind, her delegation sup-ported the amendment proposed by Austria and Japan,particularly in respect of paragraph 2, which aligned thepresent draft article with that of the 1969 Vienna Con-vention. The amendment proposed by the internationalorganizations, with or without the Soviet Union's oralamendment, caused considerable concern to her del-egation, which shared the views expressed on thesubject by the representative of the Netherlands. Thedebate on the same article in the 1968-1969 UnitedNations Conference on the Law of Treaties had beendifficult and delicate. The article concerned the in-validity of treaties, and had therefore to be handed withgreat care. It was not sufficient to refer to all aspects ofthe constituent instruments of an organization and tosay that all of those aspects concerned a rule of fun-damental importance. It was possible to envisage pro-cedural rules about the competence or capacity to con-clude treaties which would not be rules of fundamentalimportance. Her delegation was therefore unable tosupport the amendment proposed by the internationalorganizations, and expressed the hope that it would notbe referred to the Drafting Committee.

26. Mr. WIBOWO (Indonesia) said that all the pro-posed amendments aimed at changing the element ofsubjectivity present in the draft article into a criterionof objectivity. His delegation had difficulty with thephrase "ought to be within the knowledge" in para-graph 4 of the Commission's draft and was in favourof removing all possibility of differences of interpre-tation. It therefore agreed with the amendments pro-posed by Austria and Japan and Egypt. It could notsupport either the Tunisian proposal, since it omittedthe element of good faith, or the amendment proposedby the international organizations, which for the rea-sons explained by the representative of the Netherlandsat the previous meeting it found unnecessary.

27. Mr. SZASZ (United Nations) said that it had notescaped the international organizations that had spon-sored an amendment that most delegations which hadspoken had not expressed support for it. On the otherhand, the representatives of the international organ-


izations had not been totally convinced by the op-posing arguments. In view of the divergent opinionsexpressed, the best solution might be to add, after thewords "rule of fundamental importance" the words"including, in particular, those contained in the con-stituent instruments of those organizations". Suchwording would be in line with a number of suggestionsmade during the discussion.28. The CHAIRMAN suggested that the amendmentof the international organizations, as orally revised bythe representative of the United Nations, might remainin abeyance until the Committee resumed its discussionof article 2, subparagraph 1 (/)> with which it wasclosely linked.29. Most delegations had indicated that they had nobasic difficulty with the Commission's text for arti-cle 46, and a substantial number of them had expressedthe view that the amendments by Austria and Japan andby Egypt would improve the drafting. He assumed thatthe representative of Tunisia would not insist that theCommittee take a decision on his delegation's amend-ment, since it had given rise to doubts on the part of anumber of delegations. He therefore suggested that theCommittee should approve the Commission's text forarticle 46 and refer it to the Drafting Committee, to-gether with the amendments of Austria and Japan andof Egypt.

// was so decided.

Article 56 (Denunciation of or withdrawal from a treatycontaining no provision regarding termination, de-nunciation or withdrawal)

30. Mr. RAMADAN (Egypt), introducing his delega-tion's amendment (A/CONF.129/C.1/L.53), said thatits aim was to eliminate the element of obscurity towhich subparagraph I (b) of article 56 gave rise. In itscommentary to the article (see A/CONF. 129/4), theInternational Law Commission had admitted that dif-ficulties of application of treaties between States hadarisen in connection with the corresponding provisionof the 1969 Vienna Convention and had indicated thatsimilar problems could result from the Commission'swording of the subparagraph in the present draft. Inview of the difficulty of defining the nature of thosetreaties for which denunciation or withdrawal would beadmissible, and in view of the fact that, under inter-national law, States or international organizationscould not abrogate commitments arising from an inter-national treaty unless the parties to that treaty ap-proved, it would be better to delete subparagraph 1 (b).

31. Mr. STEFANINI (France) said that, in asking forthe inclusion of article 56 in the list of articles to bediscussed by the Committee, his delegation had beenguided by two considerations. In the first place, itwould have been inappropriate for the Committee topass over a question which was closely linked with thatof article 27, since both articles dealt with observanceof treaties in relation to the internal law of States andthe rules of organizations. In substance, but with twoexceptions relating to the intention of the contractingparties and to the nature of the agreement, article 56affirmed a general principle prohibiting the denuncia-

tion of a treaty which did not make provision for denun-ciation. In practice, cases could be imagined in whichthe inflexibility of the rule as worded would render thatprinciple largely inoperative.32. His delegation's second concern was that if therewas uncertainty as to which treaties between Statescould or could not be denounced, that uncertaintywould be the greater in the case of treaties to whichinternational organizations were parties. He accord-ingly shared the doubts that had been expressed by theInternational Law Commission with regard to the ap-plicability of subparagraph 1 (b) of the article (ibid.)33. Those doubts would not, however, lead his del-egation to support the Egyptian proposal to delete thesubparagraph; though imprecise in its formulation, theprinciple it affirmed was valid, and he therefore con-sidered that the Commission's version of the draft arti-cle could be retained.34. Mr. VOGHEL (Canada) said that he opposed thedeletion of subparagraph I (b) because the corre-sponding article of the 1969 Vienna Convention hadbeen expressly added to it by the Conference which hadadopted that Convention. His delegation had supportedthat decision at the time, and believed that the provisionwas equally essential to the present convention.

35. Mr. RIPHAGEN (Netherlands) said that heagreed with the two previous speakers. It was clear thata situation in which a right of denunciation or with-drawal could be considered as implied by a treaty couldgive rise to controversy, but the article should be readin the context of the introductory wording to para-graph 1 of article 56. That wording was highly cate-gorical, and provision must obviously be made forexceptions to it, including implied exceptions, as hadbeen recognized by the Commission in its commentaryto the article. Also, there was no reason to supposethat treaties concluded with an international organiza-tion were substantively different from other treatiesconcluded by States. The provision inserted in the 1969Convention should accordingly be retained in the pres-ent draft.

36. Mr. MUTZELBURG (Federal Republic of Ger-many) said that, although he shared the concernexpressed by the Egyptian delegation about the ob-scurity to which subparagraph 1 (b) gave rise, he wasnot convinced by the arguments advanced by that del-egation for deleting it. The task of the present Confer-ence was not to renegotiate the 1969 Convention but toestablish whether it was necessary to introduce intothe new convention a provision different from the oneadopted in 1969. In his view, no such departure wasrequired, and consequently he could not support theEgyptian proposal.

37. Mr. MONNIER (Switzerland) said that his del-egation could not go along with the Egyptian proposalto delete subparagraph 1 (b). The lack of a provisioncorresponding to the one in the 1969 Convention wouldcreate difficulties and uncertainties; furthermore, itwas just as difficult to establish intention, contemplatedin subparagraph 1 (a), as to determine the nature oftreaties in which the right of denunciation was implied,under subparagraph 1 (b).


38. Mr. HERRON (Australia) endorsed the remarksmade by previous speakers in support of the Inter-national Law Commission's draft. In addition, in re-gard to treaties between international organizations,treaties relating to the exchange of information anddocuments might fall into the category to which sub-paragraph 1 (b) applied. The Commission's commen-tary to the article expressed the view that headquartersagreements concluded between a State and an inter-national organization might be of such a nature that aright of denunciation or withdrawal could be impliedfrom them. Consequently, subparagraph 1 (b) mightwell have a practical application. His delegation there-fore regretted that it could not support the Egyptianamendment. It preferred the Commission's draft as itstood.

39. Mr. SANYAOLU (Nigeria) said that, for the rea-sons advanced by other speakers, his delegation toopreferred the International Law Commission's text,which would contribute to the progressive develop-ment of international law.40. Mrs. DIAGO (Cuba) said that draft article 56 wastaken word for word from the 1969 Vienna Convention.Her delegation agreed with previous speakers re-garding the problems that would result from the dele-tion of subparagraph 1 (b), and it had no difficulty withthe text as it stood. The subparagraph set forth a prin-ciple that could perfectly well be applied to treatiesto which international organizations were parties. Herdelegation would therefore be unable to support theEgyptian amendment.41. Mrs. THAKORE (India) said that article 56 statedthe conditions under which a party could denounce atreaty that contained no explicit provision regardingdenunciation. It reproduced without change article 56of the 1969 Vienna Convention. According to subpara-

graph 1 (b) of the article, the right of denunciation orwithdrawal could be implied by the nature of the treaty.It was true that the corresponding provision of the 1969Vienna Convention, as the International Law Commis-sion itself admitted, had given rise to difficulties ofapplication. Her delegation was also aware that therewere very few examples of treaties that were by theirnature denounceable. Nevertheless, it could not sup-port such a radical solution as the deletion of the sub-paragraph.42. Mr. SIEV (Ireland) said that his delegation be-lieved that, wherever possible, the draft conventionshould be worded in the same way as the 1969 ViennaConvention. Notwithstanding the fact that the wordingin the present case was particularly difficult and createdvagueness and uncertainty, his delegation would sup-port the Commission's draft, and regretted that it couldnot endorse the Egyptian proposal.43. Mr. RAMADAN (Egypt) said that his delegationhad expected to hear the argument that the text of the1969 Vienna Convention should be retained. Thereforeit had cited, on presenting its proposal, that part of thecommentary by the International Law Commission inwhich the Commission indicated the possibility of de-parting from that text. Since his delegation's proposalhad elicited a number of objections, and since its viewson the matter would be on record, he would not insist onthe proposal.44. The CHAIRMAN said that there seemed to begeneral agreement that subparagraph 1 (b) of article 56should not be deleted. He would take it, therefore, thatthe Committee wished to refer the article to the DraftingCommittee as it stood.

It was so decided.


19th meetingWednesday, 5 March 1986, at 11.25 a.m.



[Agenda item 11 ] (continued)

Article 36 bis (Obligations and rights arising for Statesmembers of an international organization from atreaty to which it is a party)

1. The CHAIRMAN invited the Committee of theWhole to consider article 36 bis and the amendmentsthereto.

2. Mr. HAFNER (Austria) introduced the amend-ment submitted by Austria and Brazil (A/CONF. 129/C. 1/L.49), which proposed the deletion of article 36 bis.3. As the International Law Commission had noted inits commentary to the article (see A/CONF. 129/4), thearticle was unquestionably the one that had given rise tomost difficulty. The difference of views as to the needfor that article stemmed from the fact that, as furthernoted by the Commission in its commentary, the textwould cover only rare cases.4. The Austrian and Brazilian delegations took theview that it was unnecessary to burden the draft con-vention with an article that could give rise to a numberof difficulties. Quite apart from the limited scope of itsapplication, article 36 bis contemplated a fairly com-


plicated legal situation, as was clear from the fact that itestablished a legal regime which constituted a specialcase in relation to articles 35 and 36. At the same time, itleft unresolved certain legal problems that were closelyconnected with the article. For instance, although thearticle sought to regulate the cases when obligations orrights arose for the States members of an internationalorganization, it laid down no rule to govern the revoca-tion or modification of such obligations or rights. Anadditional provision would therefore be required tocover that and other problems.

5. One such problem related to headquarters agree-ments, which, in his delegation's view, would be cov-ered by the article. Unquestionably, rights and obliga-tions arose for member States under such agreementseven though the latter were concluded bilaterally be-tween the host State and the international organizationconcerned, and, inasmuch as article 36 bis referredexpressly to such cases, it could be concluded that,whatever the intent of the authors, its legal regimeapplied to headquarters agreements.

6. The article thus acquired a new dimension, givingrise to further problems. One consequence of the textwould be that the unanimity rule under subpara-graph (a) would apply to the conclusion of headquartersagreements and, in the absence of any otherrule, also tothe modification and termination of such agreements.As a result, under the terms of the article as drafted,a single member of an international organization could,regardless of the rules of that organization, prevent aheadquarters agreement from being concluded or mod-ified. That would hardly be conducive to the harmo-nious development of treaty relations between the hostState and international organization concerned and wasunlikely to be acceptable to a host country such as hisown.

7. His delegation had earlier proposed that arti-cle 36 bis should be redrafted or a new article added, butit had now come to the conclusion that it would bepreferable to delete the article in its entirety and toleave the matter to be regulated by practice. If that wasnot acceptable to the Committee, his delegation wouldnot object to negotiations with a view to reformulatingthe article along the lines proposed in the amendmentsof the Netherlands and Switzerland.

8. Mr. RIPHAGEN (Netherlands), introducing hisdelegation's amendment to article 36 bis (A/CONF. 129/C.1/L.50), said that articles 35, 36 and 36 bis could befully understood only by reference to the various typesof treaties between States that were covered by the1969 Vienna Convention on the Law of Treaties.' Therewas, first, the typical bilateral treaty designed solelyto provide for an exchange of performance betweenStates. Then there was the treaty, generally a mul-tilateral one, that served to fulfil the purpose of inter-national legislation in the international community. Inbetween there were several other types of treaty, onetypical example being a treaty that created rights andobligations for States that were not parties to it. Arti-


cles 35 and 36 had been included in the 1969 ViennaConvention to cover that category of treaty.9. So far as multilateral treaties having a legislativefunction were concerned, special provisions were em-bodied in the 1969 Vienna Convention. For instance,article 40 provided that every State party to a mul-tilateral treaty had the right to participate in the negotia-tion and conclusion of any agreement for the amend-ment of the treaty, while article 41 prohibited to someextent any departure from a multilateral treaty by twoor more parties to it under an agreement inter se.

10. Articles 35 to 37 of the 1969 Vienna Conventiondealt with another type of intermediate situation in-volving the rights and obligations of non-parties to thetreaty. In that case, the principle was that such rightsand obligations could not arise except with the assent orwritten consent of the individual third party. That didnot, however, make it a party to the Convention, and itcould not normally object to any revocation or modi-fication of the treaty as between the actual parties.

11. There was yet another type of situation: the caseof treaties between an international organization and anon-member State or another international organiza-tion. In that case, the States members of the inter-national organization were third States in law but not infact.12. The problem therefore was how to deal with thatsituation. Articles 35 and 36 could, of course, be appliedto each member State individually, but what was in factinvolved was a collective position of member Statesarising from their capacity as members of an inter-national organization, in contradistinction to the in-dividual position provided for under articles 35 and 36.13. The only new element, therefore, which arti-cle 36 bis introduced in addition to articles 34 to 36 wasthe possibility for the States members of an interna-tional organization to express their assent or consentcollectively, and possibly even before the conclusion ofthe treaty between an international organization and anoutside entity.14. How could the States members of an internationalorganization express their consent or assent to bebound by the provisions of such a treaty if they sowished? The first means of doing so, as provided insubparagraph (a) of article 36 bis, was through theconstituent instrument of the international organiza-tion. That instrument could provide that, if the com-petent organ of the organization concluded a treatywhich was also intended to confer rights and obliga-tions, that purpose could be achieved without the in-dividual assent or consent of each individual mem-ber State. The second possibility was for the memberStates to express their collective consent to be boundby virtue of the constituent instrument or in applicationof the other rules of the organization, for which reasonthe Commission's draft deliberately used the words"by virtue of the constituent instrument".

15. There was also a third possibility: for the Statesmembers of an international organization to expresstheir consent to be bound by a unanimous decision,which was why the words "unanimously" and "orotherwise" appeared in the Commission's draft.


16. In virtually all international organizations therewas a residual rule whereby legally relevant unanimousdecisions were recognized if the constituent instrumentand other rules of the organization provided for nothingelse. That, however, could be regarded as already cov-ered by the more general definition of the term "rules ofthe organization", which included established practice.17. Viewed in that light, there was nothing revolution-ary about the proposed text of article 36 bis. It simplyprovided a further possibility, in addition to articles 35and 36, of creating rights and obligations of third Stateswhich were members of an international organization,if and when they wished to avail themselves of thatpossibility, and always provided that it was in keepingwith the intent of the treaty concluded beween theinternational organization and the other entity. As wasclear from subparagraph (b) of article 36 bis, there wasno question of taking anybody by surprise, and no Stateor international organization was forced to make use ofthat additional possibility.18. The only question that remained was whether arti-cle 36 bis was sufficiently clearly drafted to express theCommission's intent. His delegation had submitted itsamendment for purposes of clarification and in order toremove certain misunderstandings regarding the Inter-national Law Commission's commentary to the article.19. Mr. MONNIER (Switzerland), introducing hisdelegation's amendment to article 36 bis (A/CONF. 129/C.1/L.51), said that that proposal was, of course, con-ditional on the article's being retained. The amendmentproposed by the Netherlands was, he thought, similarin intent, although its approach was different. Arti-cle 36 bis related to two major categories of conditionsunder which a treaty entered into by an internationalorganization bound its member States directly. Thefirst related to their relations with parties to the treaty,and the second to the organization itself. A provision insubparagraph (a) of the article stating that, in orderto be bound by a treaty, member States must by virtueof the constituent instrument of that organization orotherwise have unanimously so agreed might be inter-preted as meaning that the rule of unanimity was ofgeneral application.20. He wondered whether such a rule, which requiredthat all States members must accept to be bound, wasappropriate, bearing in mind the diversity of inter-national organizations, which might be universal, re-gional, political or technical. His delegation felt that, inorder to take account of that diversity now and in thefuture, an express reference to the rules of the organiza-tion was required. In supposing that a headquartersagreement had direct effects on the member States,article 36 bis as at present drafted would lead to asituation where even minor modifications of the head-quarters agreement would require the unanimous con-sent of the member States, which would be absurd. Ithad therefore seemed necessary in the view of his del-egation, if article 36 bis were retained, to make it moreflexible by including a reference to the rules of theinternational organization in question. Such a referencewould not change the substance of the article.

21. Ms. MORGENSTERN (International LabourOrganisation), introducing the amendment proposed

by the International Labour Organisation, the Inter-national Monetary Fund and the United Nations,(A/CONF. 129/C.l/L.56), said that article 36 bis was ofparticular importance for international organizationsbecause it touched on the vast and complex subjectof relationships between organizations and memberStates.22. The situation where a treaty entered into by aninternational organization specifically created rightsand obligations for its member States could not beentirely divorced from the question of rights and obliga-tions arising for them otherwise. Practical difficultiesmight arise, such as whether a State had an obligationunder general international law not to interfere with theperformance of a treaty entered into by an internationalorganization. As an example, she referred to a case inthe United Nations in 1963 where the question aroseas to whether a State Member of the Organization was,as an individual State, in good faith bound not to re-quest the extradition of a person from a host country,when the host country was bound to grant facilities tothat person by virtue of its agreement with the Organ-ization.2

23. She also wished to underline the diversity of struc-tures and rules between the different international or-ganizations. It would be difficult to lay down a generalrule to cover such diversity in a single article. More-over, there was very little positive law in that complexarea. The International Labour Organisation itself hadno rules dealing with the subject, and its practice waslimited to its headquarters agreement and agreementswith other host countries. She believed, therefore, thatthe subject was one which was not suitable for codifica-tion. The sponsors of the three-organization amend-ment would be happy to see article 36 bis deleted,provided its substance was not dealt with in anotherprovision, but not if the facility to depart from arti-cles 35 and 36 was lost, thus making the position lessflexible. However, as a safeguard if the Conferencedecided that the article should be retained, the refer-ence to the rules and practice of international organiza-tions should be retained.24. She wondered whether the matter could be con-sidered later, perhaps in the context of article 73. Theamendment proposed by Switzerland seemed to have asimilar purpose. The sponsors of the three-organizationamendment had sought to base their proposal on the In-ternational Law Commission's draft of article 36 bis,but had found it difficult to achieve sufficient flexibility.If the Committee decided that article 36 bis should beretained, they would appreciate an opportunity to col-laborate with the delegations of Switzerland and theNetherlands with a view to developing a common text.

25. Mrs. THAKORE (India) said that article 36 bisdealt with a relatively new type of situation which hadgiven rise to delicate political problems. The Inter-national Law Commission had successfully resolvedthe question of the rights and obligations arising forStates members of an international organization as a

2 See United Nations Juridical Yearbook, 1963, document ST7LEG/SER.C/1, pp. 164-165.


result of a treaty to which the organization was a party.Such rights and obligations could arise for States mem-bers only by their explicit consent, which under sub-paragraph (a) could be given in advance in the con-stituent instrument of the organization. However, theStates members might consent "otherwise", in otherwords by means of a separate agreement. Subpara-graph (b) required the consent of those States membersto have been brought to the knowledge of States andinternational organizations which had participated innegotiation of the treaty.

26. In the view of her delegation, article 36 bis as nowdrafted was satisfactory. It was universal in scope, itdispelled ambiguities and it avoided the obstacles in-herent in earlier drafts. It had not been anticipated thatit would cover all possible situations. Her delegationwas therefore prepared to support it. For the samereasons, it was unable to support the proposal of Aus-tria and Brazil to delete the article.

27. Her delegation had an open mind with regard tothe amendments aimed at flexibility, such as that sub-mitted by the Netherlands, except for the proposal todelete the word "unanimously", which would be asubstantive change. The new paragraph 2 proposed bySwitzerland also aimed at flexibility and deserved con-sideration. Finally, her delegation viewed with extremecaution the amendment proposed by three internationalorganizations, since it appeared to be an over-simpli-fication and removed the safeguards contained in theInternational Law Commission's draft.

28. Ms. WILMSHURST (United Kingdom) wel-comed the Netherlands representative's valuableexplanation of the background of and justification forarticle 36 bis. In articles 34, 35 and 36, the present draftinstrument took up and applied to treaties betweenStates and international organizations the rules of the1969 Vienna Convention regarding the rights and dutiesof third States. Those articles indicated that third Stateshad rights and obligations only in limited and strictlydefined circumstances.

29. The question was whether the rules in those arti-cles were suitable as they stood for application totreaties with international organizations. Article 2, sub-paragraph 1 (h), defined the term "third State" in thesame manner as the corresponding provision in the 1969Vienna Convention. The effect of that definition wasthat the States members of an international organiza-tion were regarded as third States when the organiza-tion concluded a treaty. That result could well be re-garded as strange, but it was clear that the InternationalLaw Commission had recognized the need to deal withthe problem which thus undoubtedly arose.

30. The present article 36 bis, which was the outcomeof that work, constituted a carefully worded and well-thought-out compromise between differing points ofview. That compromise text had considerable merit andcare should be taken not to tamper with its delicatelybalanced structure. Her delegation did not favour un-dertaking any prolonged attempts to reword the draftarticle, but it could support the Netherlands amend-ment, which preserved the structure and purpose of theCommission's draft and appeared to resolve some of

the problems perceived by the delegations of Austriaand Brazil in the original draft.

31. On the other hand, her delegation could not sup-port the amendment submitted by three internationalorganizations. Nor could it associate itself with thecomments of those delegations which considered thatarticle 36 bis presented a problem with regard to head-quarters agreements. The United Kingdom was hostcountry to a large number of international organizationsand had concluded agreements with them which hadnot given rise to any particular problem. It did notconsider the article as specifically directed to suchagreements. Depending on whether the conditionsspecified in article 36 bis applied or not, its provisionscould apply to a host country agreement or not. If theydid not, the situation was then governed by the normalgeneral rules set forth in articles 34, 35 and 36. The factthat a new possibility was provided for in article 36 bisdid not in any way affect the provisions of articles 34to 36.

32. Her delegation recognized that the implications ofarticle 36 bis had been, and might continue to be, thesubject of considerable debate, and it would thereforegive careful consideration to the proposal to delete thattext. It was, however, reluctant to engage in attemptsradically to revise it, and hoped that the Committeewould concentrate on deciding whether or not to retainthe article, subject only to its amendment as proposedby the Netherlands.

33. Mr. ROMAN (Romania) said that it was essen-tial to include in the proposed convention a provisiondealing with the subject-matter of article 36 bis. It wasnecessary to bear in mind that in practice certain in-ternational organizations sometimes had to concludetreaties which gave rise to obligations for their memberStates. The 1969 Vienna Convention had envisaged thatsituation, and a provision on the subject was all themore necessary in the present draft. His delegationaccordingly opposed the proposal of Austria and Brazilto delete article 36 bis.

34. His delegation considered the text of the articlesatisfactory on the whole, but it wished to suggest somedrafting improvements in order to introduce greaterclarity and precision. In the French version of the in-troductory paragraph, the formula "entendent, aumoyen de ces dispositions . . . " ("intend those pro-visions to be the means of . . .") was ambiguous andmore suited to a literary than to a legal text. In sub-paragraph (a) also there was ambiguous and confusinglanguage: "or otherwise, have unanimously agreed tobe bound . . .". Those two passages could, he felt,become a source of misunderstanding and difficulties inthe application of the future convention.

35. His delegation favoured the adoption of languagewhich would make it clear that the treaties concludedby international organizations could create obligationsfor their member States only when the member Statesconcerned accepted those obligations expressly andwithout ambiguity. He therefore suggested that thewords "intend those provisions to be the means ofestablishing" should be replaced by wording suchas: "express by those provisions their intention o f


("expriment leur volonte par ces dispositions"). Hefurther suggested that in subparagraph (a) the words"or otherwise, have unanimously agreed" should bereplaced by a formula such as: "by a separate agree-ment" ("par un accord separe"). Those suggestionsbeing of a purely drafting nature, he suggested that theyshould be referred to the Drafting Committee.36. The Romanian delegation supported the amend-ments proposed by the Netherlands and Switzerland,which would introduce useful improvements into thetext of the article.37. The CHAIRMAN said that the delegation of theSoviet Union wished to present an amendment whichhad not yet been circulated. Subject to the agreement ofthe Committee, and with the understanding that noprecedent would be created thereby, he proposed topermit its consideration in accordance with the finalprovision of rule 29 of the rules of procedure, and toinvite the Soviet representative to present it orally,pending circulation of the text.3

It was so agreed.38. Mr. SHATROV (Union of Soviet Socialist Re-publics) said that under his delegation's amendment thepresent text of subparagraph (a) of article 36 bis wouldbe replaced by a provision to the effect that the Statesmembers of the organization, ad hoc and specifically,must have expressed their consent to be bound by theprovisions of the treaty.39. The Soviet delegation proposed such an amend-ment because it would prefer a situation in which eachState member of an international organization mightexpress its view concerning acceptance of the obliga-tions under a treaty to which the organization was aparty, in each specific instance. In other words, prac-tice in the matter would not be established a priori:States, as sovereign subjects of international law,would be able to express on each separate occasiontheir attitude with regard to agreements entered intoby international organizations of which they weremembers.40. Should the Committee favour the proposal fordeletion of article 36 bis, the Soviet delegation wouldnot object to it; it would decide at that time whether ornot to pursue the concern reflected in its amendment.41. Mr. PASZKOWSKI (United Nations Educa-tional, Scientific and Cultural Organization) observedthat the "comment, controversy and difficulty" towhich the International Law Commission had alludedin paragraph (1) of its commentary to article 36 bisseemed to persist, notwithstanding the explanationswhich had been provided and the number and nature ofthe amendments submitted. It might well be that thesubject-matter of the draft article, although important,was not yet ripe for codification on a universal basis.42. An international organization of universal charac-ter could hardly be expected to accept, without anyreservation whatsoever, a text which did not appearconsonant with its constituent instrument, relevantresolutions and decisions, and established practice.

1 Subsequently circulated as document A/CONF.I29/C.1/L.62.

43. In so far as the organization he represented wasconcerned, practice regarding at least one categoryof agreement—namely, so-called "host country" or"conference" agreements, which had never beencalled in question by any State—was certainly not con-sonant with the contents of article 36 bis.

44. His delegation appreciated the efforts of thosedelegations which had sought by their amendments toimprove the original draft, but it feared that those pro-posals would only result in further difficulties. In thecircumstances, it believed that it might be preferable todelete the article altogether and to allow practice toprovide a more precise and more conclusive solution.

45. Mr. BARRETO (Portugal) said that his delegationtended to favour the International Law Commission'sarticle as a good compromise text. At the same time itfelt that the Netherlands and Swiss amendments wouldbring added objectivity, specificity and clarity. It wouldhave difficulty in accepting the three-organizationamendment, as its terms were very restrictive as faras States members of international organizations wereconcerned. It had not yet formed an opinion concerningthe orally submitted Soviet amendment. On the whole,its position remained flexible; it would be able to con-cur, albeit reluctantly, with any move towards deletionof the article for the reasons developed by the represen-tative of Austria, in which case the draft conventionmight be less rich but would still respond to the re-quirements which were its raison d'etre.

46. Mr. WOUM (Cameroon) said that his delegation'sdoubts concerning article 36 bis had not been entirelydispelled by the Netherlands representative's detailedexplanations. Those doubts concerned not so much thearticle itself as the fact that its effect appeared todepend on so many factors that one might well askwhether the intention was to establish a new rule en-tailing obligations and rights or to give expression to theidea that obligations and rights might arise.

47. Nor had the doubts been resolved by the variousamendments. The Netherlands proposal gave addedprecision to the text, but made no substantive change;the Swiss amendment, which seemed to imply thatrecourse to the provisions of the draft conventionwould become exceptional, the rules of the organ-ization constituting the principle, also appeared toadd nothing new; the three-organization amendmentseemed to introduce considerations which would nothave an immediate legal effect on States which mightsign the draft convention, since it implied that theextent and manner in which the obligations and rightsreferred to might arise would not be determined by theconvention itself.

48. With reference to the conditions on which—itseemed—the effect of the article, as drafted, woulddepend, his delegation considered that four conditionsmust be satisfied for obligations and rights to arise forStates members of an international organization froma treaty to which it was a party. First, the parties mustexplicitly intend to create such obligations and rights.Secondly, they must explicitly define the conditionsand effects of those rights. Thirdly, they must explicitly(whether unanimously or not was of subsidiary impor-


tance) consent to be bound by the obligations. Andfinally, their assent must be brought to the knowledgeof the negotiating States and negotiating organizations.

49. As he had already remarked, all those conditionsseemed rather to contain the idea that obligations andrights might arise under the circumstances that were thesubject of the article than to crystallize rules, rather tobeg the question than to codify. If that was the case,might not those concerns be presented either in theform of a declaration to which States might wish tosubscribe at the conclusion of the Conference, or inthe form of an optional clause which States from re-gions where practice was consonant with its terms—forthat was not everywhere the case—might wish to sign?Failing acceptance of one or other of those suggestions,the delegation of Cameroon would submit that the mat-ter was not yet ripe for codification.

50. Mr. DEVADDER (Belgium) expressed approvalof the philosophy embodied in article 36 bis, whichshould be read in conjunction with articles 35 and 36, tothe provisions of which it merely added the possibilityof prior acceptance of obligations and rights. The keywords there were "possibility" and "prior".

51. The Belgian delegation supported the Nether-lands amendment as providing additional clarification,and it believed that the Swiss and three-organizationamendments might also be referred to the DraftingCommittee. It could not yet comment on the Sovietdelegation's amendment.

52. Mr. BUGUICCHIO (Council of Europe) said thathis organization was unable to accept article 36 bis inthe form in which it had been drafted.

53. Regarding the first part of the article, which laiddown rules relating to obligations and rights arising forStates members of an international organization from atreaty to which the organization was a party, the Coun-

cil of Europe considered that it did not need such rules,but would not oppose their adoption.54. On the other hand, the second, more proceduralpart of the article sought to establish rules governing theprocess of decision-making and the communication ofdecisions to negotiating States and negotiating organ-izations. Those rules, because of the requirement forunanimity, would entail substantial modification of thelegal system of the Council of Europe, which thereforefound them unacceptable.55. Desirous of preserving its internal law, the Coun-cil of Europe would not object to the deletion of arti-cle 36 bis, as proposed in the Austrian-Brazilian amend-ment. The Council's concerns were taken into accountin the three-organization amendment and in the Neth-erlands and Swiss amendments. The Council thereforecould support those last two amendments and, if neces-sary, agree to a possible merging of those amendments—which were closer to the original text—in a singledraft.

56. Mr. MORELLI (Peru) said that his delegationfound the International Law Commission's draft well-balanced, and consequently acceptable. It could alsosupport the Netherlands amendment.57. Mr. RASOOL (Pakistan) agreed with those rep-resentatives who had found article 36 bis highly com-plicated and controversial in nature. He was grateful tothe representative of the Netherlands for the admirableand comprehensive explanation he had given of theInternational Law Commission's text.58. Notwithstanding that explanation, he believedthat it would help to expedite the Committee's work iffurther consideration of the draft article were post-poned until it was possible to hear the Expert Consul-tant's views on that subject.


20th meetingWednesday, 5 March 1986, at 3.15 p.m.



[Agenda item 11 ] (continued)

Article 36 bis (Obligations and rights arising for Statesmembers of an international organization from atreaty to which it is a party) (continued)

1. Mr. MBAYE (Senegal), speaking on a point oforder, asked what had been decided concerning the

request made by the delegation of Pakistan at theprevious meeting.2. Mr. RASOOL (Pakistan) recalled that his del-egation had requested, in view of the absence of theExpert Consultant, who would have been able to givethe Committee of the Whole an authoritative explana-tion of article 36 bis, that further discussion of the textshould be postponed until the Expert Consultant couldbe present.3. The CHAIRMAN said that after the Committeehad heard all those delegations whose names were onthe list of speakers, he would adjourn the discussion.The latter would be resumed after the arrival of theExpert Consultant.


4. Mr. ECONOMIDES (Greece) said that arti-cle 36 bis could be a very useful part of the draft conven-tion. It aimed to deal with a case that certainly meritedspecial treatment, that of States members of interna-tional organizations which were granted rights or as-sumed obligations under treaties that had been con-cluded by international organizations alone with thirdparties, either States or other international organiza-tions. Those member States were not parties to thetreaty, but neither were they quite third parties in theclassic sense, since they were direct or indirect par-ticipants in the preparation of the treaty and in itsimplementation, as the representative of the Nether-lands had noted at the previous meeting. That specificcase, therefore, merited a special r6gime, but the re-gime provided for in article 36 bis was expressed in suchstrict terms and with such rigorous conditions that itwas likely in practice to create more problems than itwould solve.

5. The amendments proposed by the delegations ofSwitzerland (A/CONF.129/C.1/L.51) and the Nether-lands (A/CONF. 129/C. 1/L.50) sought to make the arti-cle more flexible by removing, inter alia, the provi-sion for unanimity from subparagraph (a) when therules of the organization provided a more flexiblesystem than unanimity for binding member States. Hisdelegation would therefore support both amendments.However, for the reasons stated by the representativeof India at the previous meeting, it could not sup-port the three international organizations' amendment(A/CONF. 129/C. 1/L.56), which took an approach verydifferent from that of the International Law Com-mission's draft. He reserved the right to commenton the amendment proposed by the Soviet Union(A/CONF. 129/C. 1/L.62) after having studied it. If theamendments of Switzerland and the Netherlands werenot accepted, his delegation would support the pro-posal of Austria and Brazil (A/CONF. 129/C. 1/L.49) todelete the draft article.

6. Mr. HERRON (Australia) supported the Interna-tional Law Commission's draft of article 36 bis. Hewished to acknowledge the helpfulness to his delega-tion of the very enlightening introduction to the articleby the representative of the Netherlands at the previousmeeting and the value of tjie Commission's commen-tary (see A/CONF. 129/4). The article constituted anintelligent response to the lessons learned from the 1969Vienna Convention on the Law of Treaties.1 It waswholly based on the principle of consent, was modest inscope and had been the object of unanimous agreementin the Commission.7. Australia had experience of situations in which therules set out in draft article 36 bis would have facilitatedthe establishment of binding and enforceable treatyrelations with an organization and its member States.One instance in which the rules would have allayedpolitical and legal concern would have been in the de-termination of the conditions of Australia's contri-bution to the Multilateral Force and Observers ar-rangement in the Sinai Peninsula.

1 See Official Records of the United Nations Conference on theLaw of Treaties (United Nations publication. Sales No. E.70.V.5),p. 287.

8. The rules could also facilitate the relations of "out-sider" States dealing with associations of States foreconomic, trade and other purposes, as in the case ofthe relations between the European Economic Commu-nity and the Council for Mutual Economic Assistance.

9. His delegation did not accept that the article wouldroutinely apply to headquarters agreements. It might,of course, be availed of in establishing rights and obli-gations enforceable by member States directly againsta host State, but expressed in a single headquartersagreement to which the parties were the host State andthe international organization. More normally, rightsand obligations enforceable by beneficiary Stateswould not be established by headquarters agreements.An illustration of that point was the pattern wherebyprivileges and immunities agreements between inter-national organizations and their members paralleled insome provisions the substance of headquarters agree-ments between international organizations and hostStates.

10. Excessive modification of the text of the articleshould, he felt, be avoided. His delegation recognizedand endorsed the common intention of the Netherlandsand Swiss amendments, but preferred the form of theNetherlands proposal. It did not support the Austrianand Brazilian proposal to delete the article or the three-organization proposal.

11. Mr. RASSOLKO (Byelorussian Soviet SocialistRepublic) said that, of all the articles, article 36 bis hadgiven rise to the largest number of difficulties and objec-tions, both in the International Law Commission and inthe written comments submitted by States and inter-national organizations. His delegation took the viewthat that text was not indispensable. It contained anumber of highly controversial provisions, especiallythe requirement of unanimous agreement of the mem-ber States to be bound and the possibility that suchagreement could be entered into by States beforehandby virtue of an organization's constituent instrument.Why should the obligations and rules applicable to theinternational organization itself as a party to an inter-national treaty be imposed on a State which was not aparty to that treaty? His delegation considered that theobligations of States flowed directly from a treaty withan international organization to which they were par-ties. As an independent subject of international law. aninternational organization must bear the responsibilityfor a treaty concluded with another international organ-ization, and should not transfer the burden to its mem-ber States, which were, in effect, third parties.

12. Article 36 bis was unacceptable to his delegationas it stood. Not only did it contradict articles 34, 35and 36, but it contained a provision that was in principleincompatible with the purpose of the draft conventionunder consideration. His delegation would thereforesupport the proposal to delete it. If that proposal wasnot adopted, additional work would have to be done onthe article, in which the amendment proposed by theSoviet Union should be borne in mind.

13. Mrs. OLIVEROS (Argentina) said that the obliga-tions that could arise for States members of an inter-national organization were subject to the prior written


assent of the members, specifying the scope in theirregard of the obligations contracted by the internationalorganization. The international organization was thenacting not as a subject of international law, but asa mandatary of the States which had conferred thepowers in question on it. Thus, States which enteredinto a treaty with an international organization did sonot with an entity that was a subject of internationallaw, but with the mandatary of a group of States.

14. After listening to the discussion and studying theamendments, her delegation believed that the subjectwas not yet ripe for inclusion in the proposed conven-tion. Adoption of any of the amendments proposedmight crystallize the situation and create difficulties asfar as development of the question was concerned. Herdelegation endorsed the arguments that had been putforward by the United Nations Educational, Scientificand Cultural Organization at the previous meeting inthat regard. It would therefore support the proposal ofAustria and Brazil to delete the article, as it felt that itwas better to leave the question out altogether than todeal with it only partly.

15. Mr. GAJA (Italy) said that article 36 bis was basedon three essential elements: first, the will of all thecontracting States and contracting international organ-izations; second, the will of the international organiza-tion whose member States felt the effects of the treaty;and third, the will of the member States that thoseeffects should be produced. If all those elements werein agreement, it was difficult to see what should pre-vent the States or international organizations con-cerned from acting in such a way that an agreemententered into by the international organization shouldproduce effects for its member States.

16. The amendment proposed by the Soviet delega-tion aimed to restrict the possibility that such legaleffects might arise. According to that amendment,States would have to express their agreement to bebound ad hoc and in a definite manner. His delegationdid not feel that such a provision was justified. Whycould not member States of an organization, if theyso wished, express their consent to be bound by atreaty concluded by the organization of which theywere members?

17. The situation involved a form of representation:the organization concluded a treaty that also producedeffects for its member States. Representation could, ofcourse, also exist in relations between States: a Statecould, for example, conclude an agreement with an-other State that produced effects only for, or also for, athird State that had previously given its consent. Thecase was rare, but it was not ruled out by the 1969Vienna Convention, although that instrument did notdeal with the question of representation. The situationmight occur more frequently in the case of treatiesconcluded by international organizations. Article 36 bisdid not go very far towards regulating the situation,which would of course arise differently for each organ-ization. Moreover, the conditions were indicated veryflexibly in the article, which could give rise to thehypothesis of presumed consent, thus opening the doorto many difficulties as the discussion had shown.

18. His delegation endorsed the view expressed byAustria that the question of revocation or modificationof the effects also needed to be regulated, a matterwhich would inevitably cause difficulties. Provided itremained clear that recourse to that form of representa-tion was not ruled out in international relations thedeletion of the article might be the simplest solution.19. Ms. MARABE (Lesotho) said that, in her delega-tion's opinion, article 36 bis aimed to confer obligationsand rights on States through a treaty to which thoseStates were not parties. That was tantamount to givinginternational organizations a mandate or authority tocreate obligations for States through the back door, as itwere, a situation which her delegation regarded as un-tenable. Moreover, the rarity of the cases intended tobe covered did not justify their codification. Her del-egation would prefer to allow the principle to crystallizethrough international practice. Otherwise, the Confer-ence would be legislating rather than codifying a rule ofinternational law. Her delegation would support theproposal to delete the article.

20. Mr. FOROUTAN (Islamic Republic of Iran) saidthat his delegation found it difficult to accept arti-cle 36 bis as it stood. In its view, accepting that a treatyconcluded by an international organization should havelegal effects for a State member of the organization thatwas not a party to the treaty was a derogation from theprinciple embodied in article 34 that a treaty bound onlythe parties to it. A treaty to which an internationalorganization was a party created rights and obligationsfor the organization only, and not for its members. Theconcept of the article was particularly unfair to de-veloping countries, which, although members of inter-national organizations, frequently did not play a realpart in their decision-making.

21. Subparagraph (a) laid down two conditions for theestablishment of obligations under a treaty of the kindin question. The first concerned the constituent in-strument of the organization, and the second the unan-imous agreement of the States members to be bound.His delegation did not consider it advisable for suchmatters to be stipulated in an organization's constituentinstrument. Moreover, if such a condition was stipu-lated, a State which wished to become a member of theorganization might not necessarily accept the provi-sion. An attempt to obtain unanimous agreement couldalso become a source of disputes. By seeking to transferthe responsibilities and obligations of international or-ganizations under treaties concluded by them to in-dividual member States, the Conference would be der-ogating from the main purpose of the draft convention.

22. His delegation therefore favoured the deletion ofthe article, as proposed by the delegations of Austriaand Brazil. It could not support the Netherlandsamendment because it would base the consent of mem-ber States on the rules of the organization, while underthe International Law Commission's text, consentcould be obtained in other ways. The article at leastrequired the unanimous consent of member States be-fore recognizing any obligation for them. His delega-tion was also unable to support the Swiss amendmentand the three-organization amendment. The amend-ment proposed by the Soviet Union, which would re-


quire an express, ad hoc agreement by the States mem-bers of an organization to be bound by the provisionsof a treaty, seemed closer to his own delegation's po-sition.23. Mr. DE CEGLIE (Food and Agriculture Organ-ization of the United Nations) said that, in the opinionof his organization, article 36 bis might give rise toserious difficulties for international organizations, par-ticularly those with a very large membership. Sub-paragraph (a) provided, in substance, that in order forrights and obligations to be created for States membersof an international organization by a treaty to which theinternational organization was a party, those Statesmust have "unanimously agreed" to be bound by theprovisions of the treaty. That requirement would meanin many practical cases that one member State couldrender the treaty inoperative by withholding its con-sent, even where the supreme body of the organizationconcerned had voted in favour of concluding the treatyby the majority required under the rules of that organ-ization. Moreover, even if there was unanimity amongthe States present and voting, it would be necessary, ifthe paragraph was to have full effect, to devise pro-cedures for obtaining, if possible, the concurrence ofmember States which had not been present or had notvoted. It might well be virtually impossible to make theprovision—which would seem to apply to headquartersagreements and similar types of treaty—operative inpractice.

24. His organization would therefore greatly preferthe outright deletion of the article, or at the least itsmodification on the lines proposed by the delegations ofthe Netherlands and Switzerland. The latter proposaltook into account the need to introduce an element offlexibility into article 36 bis by referring to the rules ofthe organization concerned, which was also the pur-pose of the amendment proposed by the three inter-national organizations.

25. Mr. RIPHAGEN (Netherlands) said that therestill appeared to be some misunderstanding regardingthe International Law Commission's text. Those del-egations which favoured the deletion of article 36 bishad argued that for some agreements, such as head-quarters agreements, it might not be possible to securethe unanimous consent of all the member States of aninternational organization. He wished to point out,however, that if the article was deleted, the Statesmembers of an international organization would be-come third States and articles 35 and 36 would be ap-plicable. That would mean that every State would haveto give its consent to the agreement in writing.

26. Mr. HARDY (European Economic Community)said that, under article 228, paragraph 2, of the Com-munity Treaty, when the Community became a party toa treaty, the member States were bound in every case.No formal act on their part was required, and, if thetreaty laid obligations on them, they had to dischargethem. The other parties to the treaty had to addressthemselves to the Community and to it alone on allmatters concerned with the performance of the agree-ment and, a fortiori, on all questions of responsibility inthe event of non-performance. The Community's co-contractors received rights and obligations only from

the Community, and they were bound only vis-d-vis theCommunity.

27. The system proposed in article 36 bis differedconsiderably from the Community system, in which theconclusion of a treaty by the Community had the effectof binding all its member States. In the framework ofarticle 36 bis, obligations and rights arose for Statesmembers of an international organization from the pro-visions of a treaty to which that organization was aparty only when a certain number of conditions werefulfilled, including the intention of the parties tothe treaty and the unanimous consent of the memberStates, which conditions, furthermore, must have beenmade known to the co-contracting party. In that ar-rangement there was nothing automatic about the crea-tion of rights and obligations for the States members ofthe organization. It was a purely voluntary system, asemphasized by the representative of the Netherlands atthe previous meeting.

28. Article 36 bis clearly was not intended to gov-ern relations between the Community and its memberStates. Indeed, it was clear from the explanations givenby the International Law Commission that the draftarticles could not have the effect of changing or im-posing changes on the internal systems of internationalorganizations. Furthermore, article 5 stated that thedraft articles applied to the constituent instrument of aninternational organization "without prejudice to anyrelevant rules of the organization".

29. The relations between the Community and itsmember States in respect of treaties concluded by theCommunity derived from a provision, article 228, of itsconstituent instrument. The Community therefore didnot consider itself as directly concerned by the pro-visions of article 365 bis. Nevertheless, it understoodfrom the Commission's commentary that the purposeof the article was to give international organizations ingeneral certain options additional to the mechanismsreferred to in articles 35 and 36. The Community there-fore had no objection to the retention of article 36 bis asit stood. It would be regrettable, however, in its view, ifthat article could be interpreted by certain internationalorganizations not as affording them additional possibili-ties , but as harmful to their established practice in caseswhere that practice was not based on an express provi-sion of their constituent instrument. Consequently,the Community thought that some of the amendmentsaimed at solving that problem, for example, the Neth-erlands amendment, should be considered by the Con-ference.

30. Mr. MUTZELBURG (Federal Republic of Ger-many) said that when an article presented difficultiesthere was a temptation to choose the easy way outby deleting it. However, the easiest solution was notalways the best way of dealing with a problem. Hewondered whether the interests of international organ-izations would in fact be served by the deletion of arti-cle 36 bis. The member States of such organizationswere not really third States in the strict sense.

31. Some speakers had assumed that in certain cases—for example, in the case of headquarters or customsagreements—member States would be bound. There


had also been discussion as to whether or not the pos-sibility of member States of an international organiza-tion being directly bound by the act of that organizationwas an internal matter of concern only to the organiza-tion and its member States. Such was not the case,since other parties to the treaty would assume that theStates members of the organization were involved.

32. In fact, an article 36 bis in some form could noteasily be omitted. The article referred to a numberof elements which were required in order to protectboth the negotiating powers of international organiza-tions and their member States. The Committee shouldtherefore endeavour to arrive at a compromise text.The main problem with the International Law Commis-sion's text was its inclusion of the word "unanimously"in subparagraph (a). However, it had not been theintention of the Commission to apply that condition inall situations. There were in fact three types of sit-uation. The first was where the consent of the mem-ber States was secured prior to treaty negotiations bythe international organization because it was containedin the constituent instrument. The second was whereprior consent had been expressed in other rules of theinternational organization. The third was where mem-ber States agreed ad hoc to assume certain obligations.In that case, their collective will had to be expressed ina unanimous fashion. That interpretation of the existingarticle 36 bis would be better brought out if in sub-paragraph (a) the words ". . . or otherwise, have unan-imously agreed . . . " were replaced by ". . .or other-wise unanimously, have agreed . . .".

33. The problem was dealt with in the Netherlandsand Swiss amendments to the article. His delegationcould accept either of those amendments, but it pre-ferred the Swiss amendment, which retained the ori-ginal structure of the Commission's text. The Sovietamendment dealt only with ad hoc situations.

34. With regard to procedure, he wished to state that,since consultations were in progress among members ofthe Committee, his delegation would have no objectionto considering any further amendments which mightbe submitted, and might itself wish to submit anamendment.

35. The CHAIRMAN said that the submission of anamendment after the time-limit for their acceptanceshould be very exceptional. He would leave it to theCommittee to decide whether to accept such an amend-ment, if the case arose.

36. Mr. DENG (Sudan) said that the relatively novelidea underlying article 36 bis was both complex andcontroversial. While the International Law Commis-sion's aim might have been praiseworthy, he felt thatthe area of obligation and rights which the article soughtto codify was far from clear in the light of internationalpractice. It involved the transmission of obligations andrights to States which were not directly parties to atreaty and which had not assumed those obligations andrights in the manner set out in articles 35 and 36. Hisdelegation therefore found it very difficult to supportthe Netherlands and Swiss amendments, and wouldbe prepared to support the joint Austrian-Brazilianproposal to delete the article. It did not favour the

three-organization amendment for the reasons given byprevious speakers, and it reserved its position on theamendment proposed by the Soviet Union. However,his delegation had not yet adopted a final position, andwas prepared to support any wording for the draft arti-cle that constituted an improvement.

37. Mr. NGUYEN TIEN CUC (Viet Nam) said that,as drafted by the International Law Commission, arti-cle 36 bis was not sufficiently clear. The acceptance bya State of obligations under a treaty was the result of adecision-making process involving considerations re-lating to its internal policy and external relations, andany relevant decision would be subject to the con-stitutional rules of each State. Unless those rules werepassed on to an international organization specified inthe treaty, the State remained master of its internationalcommitments and obligations; in other words, the par-ticipation of an international organization in a treaty didnot ipso facto bind all States members of that organiza-tion. In specific areas, such participation might be con-sidered advantageous for the international communityin the application of a treaty. However, the possibilityof an international organization becoming a party to atreaty should not prevent each State member of theorganization from indicating whether or not it wishedto accept the obligations deriving from that instrument.In other words, an international organization was notauthorized to accept obligations in the name and onbehalf of a State without the latter's formal consentin accordance with its constitutional procedures. Ac-cordingly, his delegation was in favour of the amend-ment proposed by the Soviet Union and could, if neces-sary, support the proposal by Austria and Brazil todelete the article.

38. Mr. WANG Houli (China) said that the Commit-tee appeared to be experiencing the same difficulties asthe International Law Commission in its considerationof article 36 bis. The major idea underlying the articlewas that States members of an international organiza-tion should not have to assume obligations to whichthey did not give their consent. In his delegation's view,that approach was correct. The fact that a State was amember of an international organization usually meantthat it agreed to give that organization the right toconclude treaties on specific matters. That did notimply a delegation of sovereignty. As far as the questionof the entire membership of an international organiza-tion enjoying the rights and assuming the obligationsarising from a treaty concluded by that organizationwas concerned, the requirement in article 36 bis of theunanimous consent of the entire membership was nec-essary. The way in which the entire membership of aninternational organization would give its unanimousconsent to such rights and obligations could be estab-lished in the organization's constituent instrument.

39. Article 36 bis was closely related to articles 35and 36, and could in fact be said to provide a balancebetween them. If no unanimous agreement of the mem-bership of an international organization was possible,then those members wishing to enjoy the rights andassume the obligations established by a treaty con-cluded by the organization could do so in accordancewith the provisions of articles 35 and 36. Article 36 bis

ISO Summary records—Committee of the Whole

would not therefore prejudice the right of an inter-national organization to conclude treaties, nor would itimpede the development of international co-operation.40. The Chinese delegation therefore believed thatthe article might be retained, and in principle it fa-voured the Commission's text. However, it was notopposed to some amendment of the text, provided it didnot affect the substance of the article.41. Mr. BERNAL (Mexico) said that his delegationfavoured retention of the International Law Commis-sion's draft of article 36 bis, which it saw as com-plementing articles 34, 35 and 36. In its view, the con-tent of article 36 bis could not be separated from thetraditional notion of the express consent of a State toassume the obligations of a treaty. The Commission'stext appeared, however, to have led to a number ofproblems of interpretation, which had resulted in twopositions, the first favouring deletion of the article, andthe other favouring amendment in order to improve itsformulation, to which end four proposals had beensubmitted. His delegation could, on the whole, sup-port the proposals by the Netherlands and Switzer-land, which were similar and would improve the text.The proposal by the Soviet Union seemed immediatelyacceptable because of its emphasis on the need forexpress and unequivocal consent. His delegation con-sidered that point important, as it was concerned aboutthe constitutional problems of internal law and thegranting of a general authorization to conclude treaties.It believed that a State should follow its relevant inter-nal processes on a case-by-case basis. It could not agreewith some of the arguments put forward in favour ofdeleting the article entirely, particularly those relatingto headquarters agreements. However, it was preparedto discuss the matter, and might go so far as to acceptdeletion as the simplest, although not the best, solution.

42. Mr. NEUMANN (United Nations IndustrialDevelopment Organization) said that there appeared tobe some difference between the position taken by theorganizations of the United Nations system and thattaken by the European Economic Community. In thecase of the latter organization, the constituent instru-ment appeared to include specific rules concerning themanner in which the Community might under certaincircumstances bind its member States through a treaty,just as there were rules regarding the instances in whichonly the Community itself was bound. However, therewere no such specific rules in the constituent instru-ments of the United Nations and the organizationsof the United Nations system. Hence, the questionwhether, for instance, headquarters agreements or con-ference agreements concluded by those universal or-ganizations were directly binding on member Stateshad to be decided on the basis of established practice,not on the basis of an express rule in the constituentinstrument.

43. It therefore seemed that while, as far as mem-bers of the European Economic Community were con-cerned, article 36 bis might be said to have a voluntaryelement, the same was not true for the other organiza-tions to which he had referred. If, as proposed byAustria and Brazil in their amendment, article 36 biswere deleted, it would not necessarily follow that arti-

cles 35 and 36 would be applicable to such agreementsas headquarters and conference agreements concludedby the latter organizations. One delegation in favour ofthe Netherlands amendment had indicated that it didnot necessarily feel that those types of agreement werecontemplated by article 36 bis. In fact, it would appearfrom the wording of article 5 of the 1969 Vienna Con-vention and article 5 of the present draft conventionthat that category of agreement would be governed bythe rules of the organization concerned. It thereforeseemed preferable simply to delete article 36 bis. TheUnited Nations Industrial Development Organizationsupported that proposal for the reasons which had beengiven by its sponsors. As a universal organization with139 member States, it would face the same difficulty insecuring the express consent of each member State ashad been mentioned by the representative of the UnitedNations Food and Agriculture Organization. If the arti-cle were deleted, that would mean that certain par-ticularly difficult questions would be left unregulatedby the present draft convention. In view of the widelydiffering positions taken by delegations on those ques-tions, however, that might facilitate the widest possibleacceptance of the draft convention.

44. Mr. DROUSHIOTIS (Cyprus) said that his del-egation was satisfied with the Commission's arti-cle 36 bis, the Netherlands representative's explanationof which it had appreciated. The article addressed aspecial situation created by the draft convention in avoluntary and flexible way.45. His delegation could support the amendments bythe Netherlands and Switzerland, but, as it was disin-clined to have the considerable controversy to whichthe article still gave rise injected into the work of theConference, it would prefer to resort to the radicalsolution advocated by Austria and Brazil, namely, thedeletion of the article. It proposed to comment later onthe proposal of the Soviet Union.

46. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that in submitting its amendment, his del-egation had aimed to settle the problems raised byarticle 36 bis in a way that might be satisfactory both forthose who favoured the idea enshrined in the article andfor those who considered it unacceptable and favouredits deletion.

47. The article's approach was based upon the prac-tice of one regional organization. However, there wereother organizations, such as, for example, the Councilfor Mutual Economic Assistance, where decisionsconcerning participation in treaties concluded by theorganization were adopted in each individual case bythe member States. That was the most democratic wayof taking decisions. If a member State did not wish tobecome a party to a treaty concluded by the organiza-tion, it merely had to declare that it did not wish to bebound by it and it did not participate in any workinvolving the instrument. In other words, the full pro-tection of sovereignty was possible and available. Inorder therefore to eliminate any permanent a prioriobligation for a State arising from a treaty concluded byan international organization, and since there was nopractice to fall back on, each organization having itsown methods, it seemed desirable to find a formula


whereby a State accepted such an obligation onlythrough an express indication of consent. The mannerof expression of consent would depend on the organiza-tion's particular system. Such a formula should notprejudice the interests of an international organizationsuch as the European Economic Community, wherethe member countries took decisions in their own way,nor those of the Council for Mutual Economic Assist-ance, which had a different procedure for the as-sumption of obligations; nor should it prejudice theobligations or responsibilities of other international or-ganizations. If such a solution could be found, his del-egation would support the idea underlying the article. Ifa compromise was not possible, it would support theproposal for deletion.

48. Mr. ZIMMERLI (International Maritime Organ-ization), speaking on behalf of the International CivilAviation Organization, said that the International LawCommission's article 36 bis would cause that organiza-tion difficulty, because it was not sufficiently flexibleto allow the conclusion of such instruments as head-quarters agreements or agreements to secure rights formember States when regional meetings were held out-side the headquarters of an organization. Subpara-graphs (a) and (b) imposed on international organiza-tions the requirement of the unanimous consent of allmember States for the conclusion of a treaty. That wasa departure from the International Civil Aviation Or-ganization's rules of procedure and its established prac-tice, which had been followed without giving rise to anydifficulty in the negotiation of agreements binding uponall parties. The article would have the effect of slowingdown its treaty-making process, and it would in anycase not be practicable in view of the types of agree-ment concluded by the Organization. Consequently,the International Civil Aviation Organization would bein favour of the deletion of article 36 bis.

49. Mr. RESTREPO (Colombia) said that the mostconvincing arguments in the debate had been thosestressing the serious problems implicit in article 36 bis.That did not mean that the arguments of those in favourof the Commission's text were without foundation, butthe complex aetiology of the article and the doubts andreservations which it had aroused persuaded his delega-tion to support the proposal by Austria and Brazil fordeletion of the text.

50. Mr. DUFEK (Czechoslovakia) said that the Com-mission's article 36 bis was the result of a compromise,and it did not fully preclude the possibility of emergenceof concrete problems of interpretation. The basic prob-lem was that States members of an international organ-ization might be faced with obligations arising fromtreaties concluded by that body. Their consent to as-sume such obligations was therefore necessary. Thatwas a positive element of the International Law Com-mission's draft. A member State could not be con-sidered bound by the obligations arising from a treatysimply because in the course of its negotiation it hadexpressed approval of the text subsequently signed bythe international organization of which it was a mem-ber. Moreover, States members of an organization be-came third parties to a treaty concluded by the organ-ization as a legal consequence of the personality of the

organization. However, States not members of thatorganization were in a situation somewhat differentthan that of member States in respect of treaties con-cluded by an international organization. That was an-other positive element.51. His delegation found the text insufficiently clearin indicating how the various problems related to inter-national practice could be solved by its formula. Statesmight express in different ways their agreement to bebound, although the article made specific reference tothe constituent instrument as being the paramountelement. It did not, however, take account of the factthat applicability of that instrument would arise onlyin rare cases. Moreover, the reference to unanimousagreement to be bound by the provisions of a treaty wasnot clear. For all those reasons, therefore, his delega-tion supported the proposal for deletion made by Aus-tria and Brazil.

52. If the majority wished to retain article 36 bis, hisdelegation would support the Soviet amendment,which referred to a definite expression of the agreementby States and not to the form of that expression ofagreement. His delegation would also be prepared toconsider the Netherlands amendment, which wouldeliminate doubts, eliminate the need for unanimity andimprove the formulation of the text in its reference tothe other rules of an organization.53. Mr. HUBERT (Canada) said that while he appre-ciated the efforts which had been made to arrive at asolution satisfactory to the majority of delegations andreflecting the current legal situation, difficulties re-mained concerning the question of unanimous agree-ment, which limited the capacity of international organ-izations to conclude treaties and was thus contrary tothe aim of the draft convention.

54. The representative of the Federal Republic ofGermany had suggested that the deletion of arti-cle 36 bis was simply an easy way out, but he felt that itselimination might be prudent from the standpoint ofcodification. The speaker accordingly favoured the ac-tion proposed by Austria and Brazil. If, however, therewas a consensus in favour of the retention of the article,he could accept the Netherlands amendment, whichwould attenuate the requirement of unanimity. Hecould not, for that reason, support the amendment ofSwitzerland, which would keep the requirement forunanimous agreement in subparagraph (a) substantiallyintact.

55. Mr. ALMOD6VAR (Cuba) said that cogent ar-guments for deletion of article 36 bis had been putforward during the discussion, but that equally seriousefforts had been made, particularly by the delegationsof the Netherlands, Switzerland and the Soviet Union,to rescue the text. His delegation would refrain fromcomment until the Committee had heard the ExpertConsultant's comments on the article.

56. Mr. GUNEY (Turkey) said that the number ofproposals to amend or delete article 36 bis testified tothe complexity of the article and the importance of itssubject-matter, which was closely linked to that of arti-cles 35 and 36. Any decision on article 36 bis wouldaffect the precarious balance between those two arti-


cles. His delegation therefore felt that while the bestcourse might be to delete the article in view of thedifficulties to which it might give rise, it might be pos-sible to amend it on the lines proposed by the Neth-erlands and Switzerland. The amendment proposed bythe Soviet Union also represented a laudable effort toimprove the text and should be given careful considera-tion. He agreed that the Committee's decision shouldbe postponed until the Expert Consultant's explanationof the text had been heard.57. Mr. RODRIGUEZ CEDENO (Venezuela) saidthat article 36 bis dealt with a new and complex legalsituation which had been the subject of prolonged de-bate in the International Law Commission. Interna-tional practice did not provide sufficient guidance inthe matter, and it would be difficult to establish a gen-eral rule that would be applicable to all internationalorganizations. He agreed with those representativeswho had suggested that, as drafted by the Commission,article 36 bis might create difficulties in connection withthe legal relations between States, and he thereforefavoured the proposal of Austria and Brazil to deletethe article.

58. Mr. KANDIE (Kenya) said that there seemed tobe no middle ground between those who wished to seearticle 36 bis deleted and those who believed it could beimproved. He had initially favoured the proposal fordeletion, but, after hearing the arguments put forwardduring the discussion, and particularly those of theNetherlands and the United Kingdom, and, bearing inmind the fact that the International Law Commissionhad adopted the text unanimously, he was no longerconvinced that deletion was the right approach. Hereserved the right to comment further once he hadheard the Expert Consultant's explanation of the arti-cle, and he hoped that some means could be found ofaccommodating the valid ideas contained in the text.

59. Mr. DALTON (United States of America) saidthat, in his delegation's view, article 36 bis dealt withonly one aspect of the problems raised when an inter-national organization composed of member States en-tered into treaties with States which were not membersof that organization. The full range of problems thatwould need to be regulated in such instances was illus-trated by the United Nations Convention on the Law ofthe sea,2 which devoted a separate annex (annex IX) tothe problem of participation in that treaty by an inter-national organization constituted by States to whichmember States had transferred treaty-making capacityin respect of matters dealt with in that Convention.That annex contained eight articles stating precisely therights of treaty partners which were not members of

2 Official Records of the Third United Nations Conference on theLaw of the Sea, vol. XVII (United Nations publication, Sales No.E.84.V.3), document A/CONF.62/122.

the organization; that aspect was not covered by arti-cle 36 bis at present before the Committee.60. In order to make it satisfactory, article 36 biswould have to be amended substantially. He doubtedwhether the Conference had time to carry out such acomplex exercise, which would in any case run the riskof distorting the International Law Commission's textand its relationship to the 1969 Vienna Convention.61. His delegation had formulated the views he hadjust expressed before hearing the observations madeby the representative of the International Labour Or-ganisation at the previous meeting in introducing theamendment of three international organizations. Al-though her explanation had not persuaded his delega-tion to support that amendment, it had convinced it thatthe law relating to treaties as dealt with in article 36 biswas not sufficiently ripe for codification in all its as-pects. In view of the lack of firmly established inter-national practice, it therefore appeared best to deletethe draft article, as was proposed in the amendment ofAustria and Brazil.

62. Mr. STEFAN1NI (France) said that, although heagreed with those who had favoured postponing a de-cision on article 36 bis until the Expert Consultant'scomments on that text had been heard, he wished tostate his delegation's belief that the article, as draftedby the Commission, was satisfactory, inasmuch as itdealt in the best possible manner with a very complexissue and was the result of laborious negotiations inwhich many, if not all, States represented at the Con-ference had taken part. Accordingly, his delegationcould not approve the amendments of the three inter-national organizations and the Soviet Union and haddoubts regarding the usefulness of the amendmentsproposed by the Netherlands and Switzerland, how-ever praiseworthy their object. Although he wouldprefer to retain the article as it stood, he was preparedto accept the proposal put forward by Austria andBrazil for its deletion. In any case, it would be desirableto hear what the Expert Consultant had to say on thesubject.

63. The CHAIRMAN said that, in the absence ofobjection, he would take it that the Committee decidedto postpone any decision on article 36 bis until it hadheard the Expert Consultant.

It was so decided.

Article 61 (Supervening impossibility of performance)

64. The CHAIRMAN said that, if he heard no objec-tion, he would take it that the Committee wished toadopt the text of article 61 as drafted by the Inter-national Law Commission, and that it would refer thearticle to the Drafting Committee.

It was so decided.


21st meeting—6 March 1986 153

21st meetingThursday, 6 March 1986, at 11.25 a.m.




Article 62 (Fundamental change of circumstances)

1. Mrs. OLIVEROS (Argentina), introducing herdelegation's amendment (A/CONF. 129/C. 1/L.57), saidthat, in the introductory wording of the document, thewords'' replace the existing text of paragraph 2'' shouldbe corrected to read "replace the existing text of para-graphs 2 and 3".2. Article 62 dealt with one of the most difficult prob-lems of international law, namely, that of the rebus sicstantibus doctrine or principle. The problem of termi-nating or withdrawing from a treaty on the grounds of afundamental change of circumstances was as old as thelaw of nations itself. As Macchiavelli put it, a prince"must not honour his word when it places him at adisadvantage and when the reasons for which he madehis promise no longer exist". There had been a longhistory of attempts to place legal limitations on the non-fulfilment of international agreements on the ground ofa fundamental change of circumstances. Article 62 ofthe 1969 Vienna Convention on the Law of Treaties'had achieved a delicate balance between the need torespect the binding character of treaties and that ofpermitting termination or withdrawal.

3. The International Law Commission had not hesi-tated to include a provision on fundamental change ofcircumstances in the form of article 62. It had estab-lished two exceptions to the basic rule: that of boundarytreaties, set forth in paragraph 2, and the case where thefundamental change was the result of a breach by theparty invoking it, set forth in paragraph 3.4. The first purpose of her delegation's amendmentwas to merge paragraphs 2 and 3, so as to give the articlethe same presentation as it had in the 1969 ViennaConvention. That formulation was much clearer andavoided the confusion which paragraph 3 of the draftarticle created through its repetitiveness and the factthat it did not mention the subject of the right in ques-tion. The second purpose of the amendment was to dealwith the problem of determining the meaning of theexpression "if the treaty establishes a boundary". Theuse of the term "boundary" without any qualificationmeant that the expression covered not only treaties of


mere delimitation of land territory but also treaties ofcession or, in more general terms, treaties establishingor modifying the territory of States. Moreover, al-though the notion of "boundary" customarily denoteda land limit, it could also be taken more broadly todesignate the spatial limits of the exercise of differentpowers, such as customs lines, the limits of the ter-ritorial sea, continental shelf and exclusive economiczone, and also certain armistice lines.5. The present Conference was not called upon todefine what was meant by a boundary, but it couldexamine whether international organizations couldhave boundaries. It could not properly be asserted thatinternational organizations could have a territory. Thatbeing said, a second question arose, namely, whetheran international organization could establish theboundary of a territory; the answer to that question wasundoubtedly in the affirmative. Article 62 of the 1969Vienna Convention had been worded from the tradi-tional standpoint that only States could possess a ter-ritory and that only delimitations of territories of Statesconstituted boundaries. The importance of defendingthe physical integrity of States and their survival asStates, notwithstanding any fundamental change of cir-cumstances, explained the emergence in internationallaw of a rule which excluded the termination of treatiesestablishing a boundary.

6. In the commentary to article 62 (see A/CONF. 129/4), the Commission had indicated the pos-sibility that an international organization could have aterritory. The delegation of Argentina believed it wasconceivable for an international organization to possessa territory, but its position would be totally differentfrom that of a State enjoying sovereignty over it; inparticular, it would not be empowered to concludetreaties establishing boundaries for that territory. Thepresent draft left open the possibility of an internationalorganization party to a treaty establishing the bound-aries of a territory acting in the name of that territory,in which case it did not seem appropriate for that treatyto enjoy the privilege of irremovability granted by arti-cle 62.

7. The considerations she had mentioned led to theconclusion that an international organization shouldnot enjoy the same privileges as a State in the event of afundamental change of circumstances. In order to makethat clear, her delegation's amendment sought to in-troduce into the article the words "of a State" after thewords "establishes a boundary". There would thus beno doubt that the boundaries to which article 62 re-ferred were those intended by the letter and spirit ofthe corresponding provision of the 1969 Vienna Con-vention.

8. Mr. AVAKOV (Union of Soviet Socialist Re-publics), introducing his delegation's amendment


(A/CONF. 129/C. 1/L.59), said that article 62 was a par-ticularly complicated and delicate provision. It re-flected the clash between two principles: the funda-mental rule of treaty law pacta sunt servanda and theimportant exception to it represented by the rebus sicstantibus principle, which made it possible to departfrom that basic legal norm on the ground of a fundamen-tal change of circumstances. The rebus sic stantibusprinciple had the merit of recognizing that economicand social developments could justify the unilateralrepudiation of a status quo. It thus tended to make legalnorms flexible, and from that point of view was a posi-tive element.

9. He stressed that, in the context of the rule em-bodied in article 62, it would be mistaken to think onlyin terms of terminating or withdrawing from a treaty.The fundamental change of circumstances could havemore limited results, such as a revision of the treaty orits adaptation to the new circumstances.

10. He recalled that at the 1968-1969 Vienna Con-ference on the Law of Treaties there had been con-siderable controversy between the adherents of thepacta sunt servanda rule and those of the rebus sicstantibus principle. In actual fact there was no realcontradiction between the two principles, because theywere different in nature. The pacta sunt servanda rulewas an inalienable principle of international law,whereas the rebus sic stantibus principle was an excep-tion which related only to rare cases. The difficultywhich arose was that of determining the cases to whichthe exception applied. As his delegation saw it, therebus sic stantibus principle constituted a strong medi-cine which should only be used in homoeopathic doses;if abused, it could have undesirable consequences.

11. At the 1968-1969 Conference his delegation hadtherefore supported article 62 as a well-balanced articlewhich reflected the practice that had developed in thematter. Paragraph 2 of the article was particularly im-portant because it related to the integrity of boundaries.While the wording of the present article 62 was accept-able to his delegation, it had submitted its proposal toamend it by replacing the words "if the treaty estab-lishes a boundary" at the end of paragraph 2 by thewords "if the States parties to the treaty establisha boundary on the basis of the treaty". That changeof wording would, it believed, improve the article byexcluding the possibility of interpreting paragraph 2as enabling an international organization to be a full-fledged party to a boundary treaty. It would also makeit clear that paragraph 2 dealt with State boundaries.His delegation attached great importance to article 62,which dealt with matters of both practical and theo-retical interest.

12. Mr. RAMADAN (Egypt) said that article 62 was adelicate and important article. Its provisions werebased on the corresponding article 62 of the 1969Vienna Convention. Paragraph 1 contained the mainrule, but his delegation felt that its wording was notsufficiently clear. Paragraph 4 dealt with the possibilityof suspending the operation of a treaty in the event of afundamental change of circumstances. The party in-voking that suspension could then endeavour to estab-lish a new balance by renegotiating the treaty with

its partners, and this weakened the argument aboutthe objectivity of the rule as a cause of termination oftreaties.13. Paragraph 2 of article 62 contained a new elementby comparison with the 1969 text in that it referred tointernational organizations as well as to States. The textof the paragraph needed to be modified so as to rule outany idea that an international organization could havethe capacity to establish boundaries for States. Ob-viously, an international organization could not exer-cise sovereign rights over the territory of States; theInternational Law Commission pointed out in para-graph (8) of its commentary to the article that not asingle example could yet be given of such a situation.Clearly, only States could establish boundaries, and theonly treaties to which paragraph 2 of the article couldrefer were those which established a boundary betweenat least two States.14. That being so, the question arose whether a treatyestablishing a boundary should be excluded from theoperation of the rebus sic stantibus principle. Two sit-uations could arise. The first was that of a treaty estab-lishing a boundary between States and covered by the1969 Vienna Convention on the Law of Treaties. In thatconnection, he reminded the Committee that Egypt hadratified the Convention without making any reservationto article 62.15. The second case was that of a treaty establishing aboundary between States to which an international or-ganization was a party because the treaty containedprovisions concerning functions which the organizationwas to perform, such as guaranteeing a boundary orperforming certain duties in boundary areas. He couldthink of the example of a war or a frontier disputebetween two States; such a conflict might be terminatedby a treaty establishing a boundary and containingprovisions on a guarantee or inspection of the boundaryby an international organization. It might afterwardshappen that the organization ran into budgetary dif-ficulties and its competent organs refused to vote thenecessary appropriations to meet those commitments,and, at the same time, that a fundamental change ofcircumstances occurred in that relations between thesignatory States improved. Could it be said that theinternational organization was not entitled to invokethat fundamental change of circumstances in order towithdraw from the treaty? In his delegation's view itshould be able to do so.

16. The Egyptian delegation would be grateful if theExpert Consultant would furnish a reply to that ques-tion. His own feeling was that the reply would be in theaffirmative. It therefore seemed important to amendparagraph 2 of article 62 in order to make it clear that itconcerned only the rights and obligations actually re-lated to establishing boundaries between States.17. The Expert Consultant's opinion would also bewelcome on the following hypothesis: a number ofStates members of a customs union might each yieldpart of its territory to the union for the purpose ofcertain operations, and a subsequent change of politicalcircumstances might necessitate the withdrawal of oneof those States from the union. Would the exceptionprovided for in article 62, paragraph 2, have the effect


of preventing the State in question from regaining juris-diction over that part of its territory?18. In the light of what he had said, the Egyptiandelegation, while appreciating the purpose of the Ar-gentine amendment, found difficulty in supporting itbecause it would permit an international organization toenter into a treaty with only one State which establisheda boundary of a State. He likewise sympathized withthe intention underlying the Soviet amendment, butconsidered that its wording should be reviewed andclarified, as it opened the way to confusing the bound-aries of States and boundaries in the wider sense oflimits of place for exercising authority. Futhermore, itdid not avoid his delegation's criticism of paragraph 2 ofthe same article.

19. Mr. CRUZ FABRES (Chile) called attention tothe risks to the stability of treaty relations inherent inthe doctrine of rebus sic stantibus, which, in the opin-ion of most jurists, should be treated with particularcaution. His delegation was especially concerned at theabsence of a binding system for the settlement of treatydisputes. Chile had therefore entered a reservation di-rectly affecting article 62 of the Vienna Convention onthe Law of Treaties at the time of ratifying the Conven-tion. His comments on the present draft should beunderstood as being without prejudice to that reser-vation.

20. The International Law Commission's SpecialRapporteur on the topic had explained in his ninthreport why it had not been possible to duplicate inthe present text the provisions of article 62, subpara-graph 2 (a), of the 1969 Vienna Convention. To havedone so would have been to imply what was unaccept-able, namely, that international organizations coulddispose of territory. It was the Chilean delegation'sview that the Argentine amendment was unacceptablefor the same reason. On the other hand, the Commis-sion's present draft of paragraph 2 reflected situa-tions where, for purposes other than that of establishingthe boundary itself, international organizations mightbe parties to a treaty between States establishing aboundary. The term "boundary" should be understoodas having exactly the same significance in the presentdraft as it did in the Vienna Convention.

21. Mr. SOMDA (Burkina Faso) said that, notwith-standing the useful clarification provided by the Inter-national Law Commission's commentary to article 62,there still seemed room for improvement in paragraph 2of the draft, which failed to establish clearly whichbodies were entitled to conclude the treaties in questionand what boundaries were involved.

22. The Argentine amendment could be said to pro-vide some additional precision in so far as it specified,in subparagraph 2 (a), that the boundary in questionmust be that of a State; on the other hand, the provi-sions of subparagraph 2 (b) of the amendment rein-troduced uncertainty by being open to different inter-pretations. His delegation considered that it posedmore questions than it solved, and therefore should notbe accepted.

23. The Soviet Union proposal seemed to take betteraccount of the Commission's idea, besides making two

points clear rather than one: first, that it was Stateswhich were entitled to conclude treaties establishingboundaries; and secondly, that the boundaries in ques-tion were those established between States.

24. His delegation supported that amendment. If itwas not adopted, it could approve the Commission'sdraft provided that the words "of a State" were addedat the end of paragraph 2.

25. Mr. GAUTIER (France) said that the issue offundamental change of circumstances should be con-sidered in close connection with that of superveningimpossibility of performance—the subject of article 61,which had been accepted without debate.

26. Paragraph 2 of the International Law Commis-sion's text perhaps suffered from the consequences ofattempting both to deal with existing situations and toforesee others that might occur with the evolution of thelaw related to international organizations. It was basedon the traditional concept that only States disposed ofterritory and that only the limits of territories con-stituted boundaries. His delegation approved the Com-mission's approach. The paragraph applied basically totreaties between States to which international organ-izations might, because they were attributed certainfunctions, also become parties. The Commission hadnot wished, however, to prejudge the future, and hadexpressed in very general terms the notion of establish-ment of boundaries by treaty. Under the circumstancesit might be wise to leave well alone. His delegationtherefore preferred the text presented by the Commis-sion to the versions which would result from either ofthe amendments.

27. Mr. ULLRICH (German Democratic Republic)expressed his delegation's acceptance of article 62 inprinciple; the Soviet Union amendment reflected inter-national practice and seemed likely to make the textclearer, although the English version of the wordingof that amendment might be improved. The Argentineamendment had the merit of reflecting the wording usedin the Vienna Convention on the Law of Treaties. Hesuggested that the Committee should approve the Com-mission's draft in one of two forms: either as amendedby the Soviet Union proposal, or as amended along thelines proposed by Argentina, with a modification whichtook account of the Soviet Union proposal. As far asthe Argentine amendment was concerned, he assumedthat the conclusion of a treaty establishing a boundarywould be performed by at least two States. His del-egation would not object to the draft article beingtransmitted to the Drafting Comittee with the twoamendments.

28. Mr. FOROUTAN (Islamic Republic of Iran) con-curred with the International Law Commission's view,expressed in paragraph (1) of the commentary to arti-cle 62, that article 62 of the 1969 Vienna Conventionachieved "a delicate balance . . . between respect forthe binding force of treaties and the need to terminateor withdraw from treaties which have become inap-plicable as a result of a radical change in the circum-stances which existed when they were concluded".The article was to be welcomed for its division of thewording of article 62, paragraph 2, of the 1969 Vienna


Convention into two separate paragraphs. His delega-tion approved the text presented by the Commission,but would have no objection if the words "of a State"were added at the end of paragraph 2, or, alternatively,if the concluding clause read " . . . if the treaty estab-lishes a State boundary".29. Mr. SANYAOLU (Nigeria) emphasized the im-portance for the law of treaties of the principle of rebussic stantibus. The question before the Committee waswhether a provision on the subject similar to that in the1969 Vienna Convention should be made in respect ofinternational organizations. In the Nigerian delega-tion's view, the answer to that question was in theaffirmative.30. The International Law Commission had pointedout that much consideration had been given to the issueof the capacity of international organizations to be par-ties to treaties establishing boundaries. The outcome ofits deliberations was reflected in the wording of para-graph 2 of the article. His delegation agreed with theCommission that it was possible for an organization tobe a party to a treaty establishing a boundary betweentwo or more States. For example, if the United Nationswas empowered to administer a territory, it might par-ticipate in the conclusion of a treaty with two or moreStates to delimit the boundary of such a territory.31. It was his delegation' s reading of the amendmentsby Argentina and the Soviet Union that they excludedsuch a possibility. It consequently found them unac-ceptable, and would favour the adoption of the Inter-national Law Commission's draft.32. Mrs. THAKORE (India) said that draft article 62followed article 62 of the 1969 Vienna Convention indefining strictly the conditions in which recourse couldproperly be had to the principle of fundamental changeof circumstances. Paragraph 2 of the draft article hadbeen worded to express the idea that only States couldpossess territory and that only a delimitation of ter-ritory between States constituted a boundary. Thus,the rule in subparagraph 2 (a) of article 62 of the 1969Convention would apply solely to treaties that estab-lished the boundary between at least two States towhich one or more international organizations wereparties. The International Law Commission had inter-preted the word "boundary" in a broad sense as in-cluding maritime boundaries.

33. Notwithstanding the doubts expressed regardingthe utility of paragraph 2, her delegation consideredthat it could apply to certain situations that had arisenas a result of the new concepts that had emerged at theThird United Nations Conference on the Law of theSea. For instance, the International Sea-Bed Authoritymight be required to conclude agreements establishinglines, some of which might be treated as boundaries. Ifit did, in addition to boundaries between States therewould be boundaries between States and internationalorganizations—in the case in point, between States andthe International Sea-Bed Authority. In such a case,paragraph 2 of the article could prove useful.

34. With regard to the Argentine amendment to thearticle, the addition of the words "of a State" in itssubparagraph 2 (a) involved a substantive change andwould give rise to difficulties; she was therefore unable

to accept it. The Soviet Union amendment did notclarify the article to any appreciable extent. She there-fore supported the Commission's draft of paragraph 2of article 62, subject to such drafting changes as mightbe required.

35. Mr. TEPAVICHAROV (Bulgaria) observed thatparagraph 1 of article 62 was sufficiently flexible toaccommodate a situation that might arise in the future,since the rule it stated was based on the practice ofStates. He noted, however, that although the text of the1969 Vienna Convention had been adapted to suit therequirements of the draft, there were substantial dif-ferences in regard to the scope of application of thedraft article by States on the one hand and internationalorganizations on the other. That difference stemmedfrom the distinction that existed between States andinternational organizations as subjects of internationallaw, and involved three elements of particular impor-tance: the difference in the extent to which the re-sponsibility of an international organization couldbe engaged without engaging the responsibility of itsmember States; the capacity of an international organ-ization to be a party to a treaty establishing boundaries;and the practice of international organizations.

36. He agreed with the view that an international or-ganization did not have territory and could not nego-tiate treaties establishing boundaries, and that it wasnot for the Conference, but for States, to define whatwas a boundary. As matters stood, an internationalorganization could delineate a boundary if so requestedand empowered by the States concerned, but it couldnot establish one. Admittedly, as the International LawCommission had pointed out in the commentary to thearticle, practice in the matter was not conclusive;however, what was needed in the case of article 62 wasclarity. His delegation therefore understood the rulestated in paragraph 2 to apply only to treaties estab-lishing boundaries between at least two States to whichone or more international organizations were parties.For that reason, it could support the Commission'sdraft if it was amended in accordance with the So-viet Union proposal and if the English version of thewording proposed by the Soviet Union was corrected toread: "if the States parties have established a boundaryby this treaty". His delegation could not support theArgentine amendment because the words "a treatybetween one or more States and one or more inter-national organizations" seemed to contemplate a situa-tion in which a State and an international organizationcould conclude a treaty concerning boundaries.

37. Mr. PISK (Czechoslovakia) said that paragraph 2of article 62 expressed the principle embodied in the1969 Vienna Convention that a fundamental change ofcircumstances could not be invoked in the case of atreaty establishing a boundary. His delegation ap-proved the transposition of that principle to the draftarticles. He noted that article 62 had been worded totake account of the traditional view that only Statespossessed territory and that only a delimitation of theterritory of States constituted a boundary. Thus, theonly treaties to which the rule laid down in paragraph 2could apply were treaties establishing boundaries be-tween at least two States where the parties to the treaty


included one or more international organizations. Theparagraph implied that an international organizationcould be a party to such a treaty if it was empoweredunder the treaty to perform certain functions.38. A more complex question was whether, givendevelopments in international law, the term "bound-ary" should be interpreted more broadly than before.On that point it was necessary to proceed on the basis ofgeneral consideration about the nature of the principleconcerning a fundamental change of circumstances.The exceptions to that basic principle had been definednarrowly because, if a fundamental change of circum-stances could be invoked too broadly as a ground forinvalidating a treaty, the principle pacta sunt servandawould be directly contradicted and the security oftreaty relations would be endangered. The exceptionalnature of the rule about a fundamental change of cir-cumstances was emphasized by the negative formula-tion of article 62: "a fundamental change of circum-stances . . . may not be invoked . . . unless . . .". Thestabilizing effect, and the object, of article 62, para-graph 2, called for adherence to what the 1969 ViennaConvention meant by the term "boundary". In hisdelegation's view, therefore, it would not be appro-priate to extend that term to include, for example, thelimits of the continental shelf or the exclusive economiczone.

39. The fact that the exception established in arti-cle 62, paragraph 2, applied to treaties in which Statesestablished boundaries between themselves would bespelt out more emphatically if it was expressed clearlyin the wording of the paragraph. His delegation there-fore supported the Soviet Union proposal, which was inkeeping with the intention underlying paragraph 2 of theCommission's draft. The condition for the conclusionof the treaty establishing the boundary was that theparties should be at least two States.40. As to the paragraph 2 proposed by Argentina, thewords "a treaty between one or more States and one ormore international organizations", taken in conjunc-tion with the proposed subparagraph (a), implied thatan international organization could participate in es-tablishing the boundaries of a State in a treaty. Ac-cordingly, for the article as a whole, his delegationsupported the Commission's wording as amended bythe Soviet Union proposal.

41. Ms. WILMSHURST (United Kingdom) said thather delegation approved the International Law Com-mission's text. Paragraph 1 stated the general princi-ple of rebus sic stantibus, while paragraph 2 providedthe exception concerning boundaries. The Commissionhad used wording modelled precisely on that of arti-cle 62, subparagraph 2 {a), of the 1969 Vienna Con-vention, and in her delegation's view the Conferenceshould leave it as it was. Her delegation therefore op-posed both the Argentine amendment and the SovietUnion proposal.42. Mr. MONNIER (Switzerland) said that his del-egation too approved the International Law Commis-sion's draft. With regard to the amendments of Argen-

tina and the Soviet Union, the concept of boundarieswas well established in international law and signifiedsolely political boundaries which delimited the territoryof a State. A boundary was a line that determined thegeographic area over which the State exercised sover-eignty. Thus, the term "boundary" could not denotecustoms boundaries nor could it apply to maritime lim-its beyond the territorial sea, such as the continentalshelf or economic zone. Within such areas, the riparianState had only certain sovereign powers. The term usedin that regard was not "boundary", but rather "outerlimits". Consequently, a boundary could only be onebetween States and established by States. The fact thatone or more organizations could be parties to a treatybetween States establishing a boundary and conferringon those organizations certain supervisory or otherfunctions altered nothing. Furthermore, the term"boundary" could not apply to the "territory" of aninternational organization, for international organiza-tions did not have territory as such. That was why aninternational organization had to establish itself on theterritory of a State and conclude a treaty with that Statein order to regulate its legal status.

43. In his delegation's view, therefore, the proposalby Argentina to add the words "of a State" after theword "boundary" was unnecessary, as was the SovietUnion proposal. As the rebus sic stantibus rule could beinvoked only in exceptional cases, as provided in the1969 Vienna Convention and in the draft article itself,similarly the term "boundary" should be understoodas expressing the concept that was traditionally andgenerally recognized. However, the rearrangement ofwording which the Argentine amendment proposedmight be referred to the Drafting Committee.

44. Mr. HERRON (Australia) said that his delegationcould have accepted a broader reference in paragraph 2of article 62 to a treaty relating to the status of territory,rather than the existing reference to a treaty estab-lishing a boundary. It saw no need to adopt a restrictiveapproach to paragraph 2, and could accept the Inter-national Law Commission's draft. The Commissionhad advisedly imported into paragraph 2 a reference totwo or more States and one or more international organ-izations: the reference to two or more States made itsufficiently clear that what was involved were bound-aries between States, while the reference to interna-tional organizations was appropriate because, in atreaty between States establishing a boundary, func-tions could conceivably be assigned to an internationalorganization with respect to that boundary or otheraspects of the relationship between the States. Forinstance, the International Sea-Bed Authority, theUnited Nations Council for Namibia or a body as-sociated with the Antarctic Treaty regime might well beinvolved in such a treaty. His delegation therefore con-sidered that the Commission's text of paragraph 2 wasentirely appropriate, and it did not support either of theamendments.



22nd meetingThursday, 6 March 1986, at 3.20 p.m.



[Agenda item 11]

Article 62 (Fundamental change of circumstances)(concluded)

1. Mr. LUKAS1K (Poland) said that his delegationattached the greatest importance to the principle estab-lished in article 62 of the 1969 Vienna Convention on theLaw of Treaties' that no fundamental change of circum-stance might be invoked as a ground for terminating orwithdrawing from a treaty establishing a boundary be-tween States. He believed it might be concluded fromthe draft article prepared by the International LawCommission, and even more from the comments ofsome delegations, that treaties of a similar nature couldbe concluded between States and international organ-izations, or even between international organizations.2. His delegation rejected the idea of allowing inter-national organizations to establish boundaries, not onlybecause they did not possess territory but because sucha right was solely the attribute of sovereign States.Unfortunately, the possibility that international organ-izations might have the same right was envisaged inarticle 62. If, as had been suggested, the intention of theCommission had been to refer to agreements concludedby international organizations concerning other typesof boundary, such as the limit of the continental shelf,economic zones, outer space, then the choice of theterm "boundary", transplanted from the 1969 ViennaConvention, was misleading and subject to differentinterpretations. While his delegation rejected the ideathat international organizations could conclude treatiesestablishing State boundaries, it had no objection totheir concluding treaties concerned with the delim-itation of areas other than State territories. In the lattercase, it would perhaps be better to allow both Statesand international organizations to avail themselves ofthe right to invoke fundamental change of circum-stances as a ground for termination or withdrawal froma treaty, since such changes often occurred in respect ofnon-State territories of the type he had mentioned.Such a possibility should, however, never be allowed inrespect of State boundaries.

3. His delegation therefore considered both the pro-posed amendments very useful. The proposal by the


Union of Soviet Socialist Republics (A/CONF. 129/C. 1/L.59) was a simpler one, and, if adopted as suggested bythe representative of the German Democratic Republicat the previous meeting to read "if the States partiesestablish a boundary in this treaty", could remove dif-ferent interpretations of the word "boundary". Whilehis delegation did not accept the view that an inter-national organization could participate in a treaty es-tablishing a boundary on equal footing with States, itnevertheless felt that such an organization might beentrusted with a specific role with respect to boundariesthus established. The situation would in any case befully governed by the relevant provisions of article 62.

4. Mrs. OLIVEROS (Argentina) said she believedthere was a consensus in favour of maintaining thesituation whereby a fundamental change of circum-stance could not be invoked as a ground for terminatingor withdrawing from a treaty establishing a boundarybetween States. However, there had been no responseto her delegation's proposal that paragraphs 2 and 3of the International Law Commission's article shouldbe combined (see A/CONF. 129/C.l/L.57 as orally re-vised). Her delegation could thus reduce its proposedamendment to only one point—based on its under-standing that there was a consensus that in the presentcontext "boundaries" meant the boundaries of Statesonly—namely, that States alone, and not internationalorganizations, could fix boundaries for themselves.Her delegation's revised amendment would thus in-volve simply adding the words "of a State" at the end ofparagraph 2 of article 62.

5. Mr. RASOOL (Pakistan) said that the revisedamendment just proposed by the representative ofArgentina represented a substantive change. Whilestressing that at the present time boundaries could inpractice be established only between States, the Inter-national Law Commission had left open the possibilitythat at some time in the future two States might con-clude a treaty establishing an international organizationunder which that organization was given a separateterritory. Thus, the possibility of future development ofthe law was retained, which was not the case under theArgentine amendment.

6. His delegation felt that the amendment of the So-viet Union introduced an element of contradiction. Thearticle proposed by the Commission envisaged a treatywhere both States and international organizations wereequal parties in establishing a boundary, which wasunderstood to be that of a State. By retaining the firstpart of paragraph 2, the Soviet amendment envisagedinternational organizations as parties to such a treaty,but with the question of the establishment of a bound-ary being left to the States. It appeared that in such acase an international organization would participate inthe negotiations, thus becoming a party to the treaty,

22nd meeting—6 March 1986 159

but its sole purpose would be decided by others. In thelight of those considerations, his delegation supportedarticle 62 as drafted by the Commission.

7. Mr. NEGREIROS (Peru) said that in his delega-tion's view the purpose of the present Conference wasnot to create new international legal institutions or toreform existing ones, but to adopt an instrument com-plementing the work of codification carried out in the1969 Vienna Convention. His delegation therefore con-sidered it dangerous to apply excessive innovative zealonly a decade and a half after that Convention hadestablished a basis for relations between States, nowthat international organizations were being includedin the ambit of those relations. The Conference wasseeking to improve the involvement of internationalorganizations in international affairs by granting themcertain rights, but without making them entities com-parable with States. While his delegation favoured theinvolvement of international organizations in inter-State affairs, it emphasized that they were not Statesor equivalent entities and must conform strictly tothe rules governing relations between States. For thosereasons, the new convention should keep as close aspossible to the 1969 Vienna Convention. He thoughtthat the revised form of the Argentine amendment wasappropriate, since it would avoid future problems ofinterpretation.

8. Mr. SWINNEN (Belgium) said that his delegationhad no difficulty with the International Law Commis-sion's article 62. The doubts and reservations reflectedin the amendments proposed by Argentina and the So-viet Union were, he felt, satisfactorily answeredin the Commission's commentary to its text (see A/CONF. 129/4). The draft article was in his view suf-ficiently precise, and he was afraid that modificationsaimed at ensuring greater precision were not only su-perfluous but might lead to confusion or undermineestablished principles of general international law. Theterm "boundaries" could refer only to State bound-aries. Only States, as subjects of international law, hadthe capacity to establish boundaries. His delegationtherefore gave its full support to article 62 as drafted bythe Commission. However, it was not opposed to thattext and the proposed amendments being referred to theDrafting Committee.

9. Mr. BOUCETTA (Morocco) said that it was gen-erally accepted in the practice of States that a fun-damental change of circumstances was a ground forterminating or withdrawing from a treaty, subject tocertain exceptions, such as illicit or unequal treaties orthose based on a fait accompli or acquired rights. TheInternational Law Commission had attached great im-portance in its work on the 1969 Vienna Convention tothe need strictly to define the circumstances in which itwas permissible to terminate or withdraw from a treaty.That was underlined by the negative formulation ofarticle 62, paragraph 1, of that instrument. Paragraph 2of that article indicated two cases where the article didnot apply, the first relating to treaties establishing aboundary between States, an exclusion which the Com-mission had considered necessary in order to avoid adangerous source of friction. The second exception,which was the subject also of paragraph 3 of the draft

article, contained the impossibility of invoking a fun-damental change of circumstances resulting from abreach by the party invoking it.10. His delegation took the view that an internationalorganization clearly could not establish State bound-aries, let alone its own, although situations might arisewhere States parties to a treaty establishing a boundarybetween them desired the participation of an interna-tional organization for certain limited and defined func-tions. However, in no circumstances could an inter-national organization conclude a treaty establishing aboundary on behalf of a State.11. His delegation was in favour of maintaining arti-cle 62 in the form proposed by the International LawCommission. It might, however, wish to comment onthe matter again after hearing the Expert Consultant'sexplanation of that text.12. Mr. CORREIA (Angola) said that his delegationhad no difficulty in accepting the Commission's draft,but believed it was necessary to make it clear that theterm "boundary" meant only State boundaries and thatonly States had the capacity to conclude treaties estab-lishing boundaries. It therefore had certain reservationsin respect of paragraph 2. The term "boundary" wasperhaps insufficiently clear, and the amendments pro-posed by Argentina, as orally revised, and the SovietUnion provided a basis for improving the paragraph.Those amendments, together with the text of the articleproposed by the Commission, should therefore be re-ferred to the Drafting Committee.

13. Mr. RODRfGUEZ CEDENO (Venezuela) saidthat, as the International Law Commission had pointedout in paragraph (1) of its commentary to the text,article 62 established a delicate balance between re-spect for the binding nature of treaties and the need tobe able to terminate or withdraw from them in the caseof a fundamental change of circumstances. Under the1969 Vienna Convention, fundamental change of cir-cumstances was not a ground for so doing where thetreaty was one establishing a boundary or where thechange was due to a breach by the State invoking it.The fact that the basic subject of the present draftconvention was relations between States and interna-tional organizations had led to the expression of cer-tain reservations related to the differences between thepresent situation and that of the earlier Convention. Hisdelegation was concerned about the rather hypotheticalcapacity of an organization to participate in a treatyfor the establishment of a "boundary", a term whichwas already defined in international law and closelylinked to States and their powers. Under such a hypoth-esis, the activities involved would be those arising fromboundary-related questions rather than the actual es-tablishment of boundaries. A codification which hadregard to the future should certainly take account ofthose situations which, although unlikely, were never-theless possible, but the hypothesis that a boundarycould be established by a subject of international lawwhich was not a State was an impossible one, since theterm "boundary" itself was defined as relating exclu-sively to States. Although to his delegation it seemedsuperfluous, the precision contained in the amendmentproposed by Argentina, as orally revised, might never-


theless be acceptable. A similar precision was con-tained in the Soviet Union amendment, which couldprobably be combined with the Argentine amendment.In the view of his delegation, both amendments shouldbe referred to the Drafting Committee.

14. Mr. WANG Houli (China) said that while his del-egation could accept the Commission's article 62, therewas some problem of understanding. A border in inter-national law determined the boundary line betweenStates, and, traditionally, the decision to establish sucha line was a matter between States. International organ-izations had no territory and therefore did not have todecide on their boundaries. However, the slight pos-sibility of such an organization becoming a party to atreaty dealing with a boundary could not be excluded.On that understanding, his delegation could supportparagraph 2 of the article as drafted, but it could notagree that "boundary" in that context also included thelimit of economic zones or of the continental shelf. Theamendments of the Soviet Union and Argentina wereintended to clarify the content of the article, and hisdelegation did not object to their being referred to theDrafting Committee.

15. Mr. MIMOUNI (Algeria) said that the Interna-tional Law Commission's draft, which was largelybased on the 1969 Vienna Convention, raised two basicissues: the capacity of international organizations toconclude treaties establishing boundaries or to disposeof territory, and the concept of a boundary. The arti-cle had been drafted in accordance with the traditionalidea that only States had territories and consequentlyonly the delimitations of the territories of Stateswere boundaries. The Commission in its commentaryhad indicated that the rule in paragraph 2 applied onlyto treaties establishing boundaries between at leasttwo States to which one or more international organ-izations were parties. The Algerian delegation believedthat only States could conclude treaties establishingboundaries and that international organizations couldexercise only specific functions in that connection. Ittherefore could not support the first subparagraph inthe amendment proposed by Argentina. While not ob-jecting to the remainder of that proposal, it be-lieved that the addition of the words "of a State" atthe end of paragraph 2 was unnecessary, as the word"boundary", as used in that paragraph, referred to theboundary of a State. For these same reasons, and evenif the Soviet amendment did try to bring in greaterprecision, the Algerian delegation preferred not to de-part too much from the wording of the 1969 ViennaConvention. In conclusion, therefore, the Algeriandelegation preferred the Commission's draft.

16. Mr. AL JARMAN (United Arab Emirates) saidthat, in his delegation's view, international organiza-tions could not deal with matters of sovereignty, whichwere the domain of States. States alone were com-petent to determine the boundaries between them, andthe treaties referred to in article 62 were those estab-lishing boundaries between at least two States. Inter-national organizations could only be parties, but notdetermining parties to those treaties. The wording usedby the International Law Commission was very gen-eral, and his delegation interpreted the reference to

boundaries as meaning the boundaries of the entireState, including territorial waters, economic zones andthe continental shelf. The original amendment pro-posed by Argentina was somewhat narrow in scope,since it referred only to territorial or State boundaries,and was therefore a fundamental departure from theCommission's draft. His delegation had not yet beenable to study the revised version of the Argentineamendment. The Soviet proposal did not basicallychange the Commission's draft, which his delegationpreferred as it stood.17. Mr. ALM0D6VAR (Cuba)said that it appeared,in principle, unnecessary to introduce an exception tothe rule in article 62. However, the International LawCommission had provided detailed explanations, and inparagraph (6) of its commentary had even gone so far asto make disclaimers concerning interpretation of the1969 Vienna Convention and the Convention on theLaw of the Sea. Paragraph (11) of the commentary, inits reference to treaties establishing a boundary be-tween at least two States to which one or more inter-national organizations were parties, contained an ideawhich needed closer study. The delegation of Argen-tina's attempt to clarify the expression "boundary of aState" was praiseworthy, but did not eliminate theproblem of interpretation. The amendment of the So-viet Union was clearer. He felt that consultation be-tween the two delegations might result in productionof a text which could be referred to the Drafting Com-mittee.

18. The CHAIRMAN, summing up, said that manyviews had been expressed both for and against theCommission's article 62 and the two amendmentsthereto, and the Committee would have to decidewhether those amendments related to matters of sub-stance. In his view the article was in no way concernedwith the creation or establishment of rights for interna-tional organizations, and the Conference was codifyingthe law of treaties and not the rights of internationalorganizations.19. As he understood them, the Argentine amend-ment, as orally revised, meant that "boundaries" werethe boundaries of a State in the context of the draftarticle, while the Soviet amendment meant that onlyStates could establish the boundaries of States. If therewas no objection, therefore, he would take it that theCommittee of the Whole approved the InternationalLaw Commission's text, approved the two proposedamendments as drafting amendments and agreed torefer them to the Drafting Committee.

// was so decided.

Article 65 (Procedure to be followed with respect toinvalidity, termination, withdrawal from or suspen-sion of the operation of a treaty)

Paragraph 3

20. Mr. ISAK (Austria), introducing the amendmentproposed by his own delegation and that of Egypt(A/CONF.129/C.l/L.58/Rev.l), said that, generallyspeaking, article 65 as drafted by the International LawCommission was satisfactory. However, the opening


clause of paragraph 3 of the Commission's draft dif-fered from that of article 65, paragraph 3, of the 1969Vienna Convention, which read: "If, however, objec-tion has been raised by any other party,. . .". The ideabehind that formulation was to link paragraph 3 of thearticle to paragraph 2, particularly in respect of thetime-limit imposed on the right to raise an objection to anotification made under paragraph 1 of the article. Inwording paragraph 3 of the present draft article, theCommission had departed from that formulation in or-der to disconnect the paragraph from paragraph 2, thereason being, as it had observed in paragraph (4) ofits commentary to the article, that in the case of thetreaties which were the subject of the draft articles, itwould be advisable not to provide for loss of the right toraise an objection to a notification designed to dissolveor suspend a treaty. But the new wording set up acontradiction, since paragraph 2 of the article did im-pose a time-limit on that right, whereas paragraph 3 didnot. Irrespective of the question of the admissibility ofan objection raised beyond the time-limit established inparagraph 2, his delegation considered that the openingclause of paragraph 3 could not confer on such anobjection the legal effects contemplated in paragraph 2.The new wording would only widen the scope for theobjections which were subject to the dispute settlementprocedure provided for in paragraph 3.

21. His delegation was well aware of the legal prob-lems which the formulation in the 1969 Vienna Conven-tion could not solve—particularly that of prescription—and which remained unsolved with the new formula-tion. However, the new wording in paragraph 3 createda new regime which differed from that of the 1969Vienna Convention. In order to avoid the existence of adouble regime, which would certainly not contribute tothe predictability, precision and certainty of interna-tional relations under international law, the Austrianand Egyptian delegations proposed the reinstatementof the formulation used in the 1969 Vienna Convention.That would certainly improve the wording of the articleand facilitate the future application and interpretationof its provisions.

22. Mr. RIPHAGEN (Netherlands) said that the In-ternational Law Commission had given a reason forchanging the wording of paragraph 3. If the Conferencedecided to revert to the old formulation, it would givethe impression that it rejected the idea that the time-limit of not less than three months established in para-graph 2, in other words a minimum period, should notbe applicable in paragraph 3, which dealt implicitly witha maximum period. He would prefer the matter to bereferred to the Drafting Committee, which would de-cide whether a matter of substance was involved.

23. Mr. STEFANINI (France) said that his delegationhad certain doubts about the scope of article 65 andreserved the right to speak on the subject at a laterstage. However, it was prepared to accept the Commis-sion's text provisionally and had no objection to theproposed amendment. He suggested that in the Frenchversion of the amendment the word "cependant"should be replaced by the word "toutefois".

24. Mr. FOROUTAN (Islamic Republic of Iran) saidthat his delegation found the change introduced by

the International Law Commission at the beginning ofparagraph 3 unsatisfactory, because the paragraph nolonger had its place in the succession of steps which hadto be followed in cases of dispute. Taking into con-sideration the time-limit stipulated in paragraph 2, itwould normally be the case that after its expiry thenotifying party would be free to carry out the measure ithad proposed, in the manner provided in article 67.Paragraph 3 represented a step which was out of linewith the preceding paragraph. It was unnecessary todepart from the language of the 1969 Vienna Conven-tion at that point. His delegation therefore approvedthe amendment proposed by Austria and Egypt andsuggested that it should be referred to the DraftingCommittee.

25. Mr. BERMAN (United Kingdom) said that para-graph 3 represented a substantive and unjustified de-parture from the 1969 Vienna Convention. It shouldbe amended to reinstate the wording of that instru-ment. Consequently, his delegation fully supported theamendment put forward by Austria and Egypt and sug-gested that the article as thus amended should be re-ferred to the Drafting Committee.

26. Mr. NGUAYILA (Zaire) said that his delegationcould accept the draft article prepared by the Inter-national Law Commission. In general, the article tookits inspiration from the corresponding article of the 1969Vienna Convention. The amendment proposed by Aus-tria and Egypt seemed to involve a drafting change.

27. Mr. RODRIGUEZ CEDENO (Venezuela) saidthat article 65 established a suitable mechanism forensuring stability and legal certainty in treaty rela-tions. The requirement of notification prevented a partyto a treaty from taking arbitrary measures unilaterallyto dissolve it or suspend it. The article reflected arti-cle 65 of the 1969 Vienna Convention, which had beendebated thoroughly and at length. Paragraph 3 con-cerned objections to proposals for the dissolutionor suspension of a treaty, as well as the obligation ofStates to solve their differences peacefully, which wasa fundamental principle of the Charter of the UnitedNations. The reference to Article 33 of the Charterexpressed the well-established principle that States hada choice of means for settling disputes. The amendmentproposed by Austria and Egypt brought the text intoline with that of the 1969 Vienna Convention. His del-egation could therefore accept it, and agreed that itshould be referred to the Drafting Committee.

28. Mr. AENA (Iraq) said that in general his delega-tion found article 65 as prepared by the InternationalLaw Commission acceptable, since it laid down a pro-cedure that ensured justice for all parties to a disputerelating to the dissolution or suspension of a treaty. Theachievement of a solution through the means indicatedin Article 33 of the Charter of the United Nations wasappropriate. His delegation supported the proposal byAustria and Egypt and agreed that it should be referredto the Drafting Committee.

29. Mr. RASOOL (Pakistan) said that his delegationapproved the wording of article 65 proposed by theInternational Law Commission. The amendment ofAustria and Egypt seemed to introduce a change of


substance, and his delegation therefore opposed it.However, if the Committee clearly understood the pro-posal as involving only a matter of drafting, his delega-tion would not object to it being referred to the DraftingCommittee on that understanding.30. Mr. HERRON (Australia) said that in his view theInternational Law Commission had not necessarilymade a change of substance; what it had done was todecide between two possible interpretations of thewords "if, however, objection has been raised" in arti-cle 65, paragraph 3, of the 1969 Vienna Convention,which were ambiguous. Not to accept the change pro-posed by the Commission would be tantamount tochoosing deliberately to retain the ambiguity. His del-egation preferred the future convention not to contain aknown ambiguity, and therefore agreed with the Com-mission's decision to make it clear that article 65, para-graph 3, did not prescribe loss of the right to raise anobjection to a notification concerning the dissolution orsuspension of a treaty. Accordingly, it approved theCommission's wording.

31. With regard to the possible effect of the changeintroduced by the Commission on the interpretation ofthe corresponding article of the 1969 Vienna Conven-tion, the ambiguity of the article would remain, but theinternational community would probably interpret it inaccordance with subsequent practice.32. Mr. MORELLI (Peru) said that his delegationsupported the proposals by Austria and Egypt. How-ever, in the Spanish version of the amendment, thewords "no obstante" should be replaced by the words"por el contrario", which were the ones used in arti-cle 65, paragraph 3, of the 1969 Vienna Convention.

33. Mr. DENG (Sudan) said that his delegation foundthe language of paragraph 3 incompatible with that ofparagraph 2. The wording proposed by Austria andEgypt would therefore be acceptable, provided it im-plied the continuance of the right of objection, as ad-vocated by the International Law Commission.

34. Mr. SZASZ (United Nations) said that his delega-tion was of two minds regarding the proposal by Austriaand Egypt to reinstate the language of the 1969 ViennaConvention. Any deviation from that Convention wasundesirable unless the special nature and requirementsof international orgnizations in relation to the draftconvention justified it. In his view, the justification inthe present case would be that international organiza-tions, because of their international structure, mightnot react as fast as States to a notification under ar-ticle 65, paragraph 1. For organizations such as theUnited Nations which had executive heads empoweredto act on behalf of the organization, the time-limit ofthree months should not present a problem. Smallerinternational organizations possessing treaty-makingcapacity might, however, not be able to react withinthat period, and consideration should therefore begiven to wording the article so as to cater to them.

35. The International Law Commission had decidedto make no distinction between States and internationalorganizations in paragraph 2; indeed, such a distinctionwould have created a problem because it would nothave been clear, if there had been prescribed for organ-

izations either a longer period than for States or noperiod at all, what would be the position of a partymaking a notification pursuant to paragraph 1. If thewording of article 65, paragraph 3, of the 1969 ViennaConvention could be interpreted as prescribing a time-limit for an objection to a notification, it would beinadequate for use in the present draft in respect ofinternational organizations. That might therefore be areason for deviating from the 1969 wording.36. In the view of his delegation, either choice in-volved interpreting article 65, paragraph 3, of the 1969Vienna Convention, which strictly speaking was some-thing that this Conference could not do. Accordingly, ifthe proposal by Austria and Egypt was rejected, theConference should place it on record that, in rejectingit, it did not thereby mean to give a restrictive inter-pretation to the Vienna Convention on the Law ofTreaties. If on the other hand the proposal was adopted,the Conference should place on record its intention thatarticle 65, paragraph 3, of the future convention shouldnot be given a restrictive interpretation.37. Mr. MONNIER (Switzerland) said that it wasclear from the discussion that article 65 involvedclosely interrelated considerations of substance andform. The real difficulty was that the International LawCommission's wording aimed at a change of substancebut did not make that change of substance clear. Hisdelegation saw no fundamental difference in meaningbetween the words "when an objection is raised" andthe words "if, however, objection has been raised".The substantive point which the Commission hadsought to make was that it was inappropriate that thedraft convention should provide for loss of the right toraise objections to a notification designed to dissolve orsuspend a treaty. His delegation was not convinced ofthe need for the new instrument to diverge from the1969 Vienna Convention on that point of substance.Secondly, if that Convention did contain an ambiguity,he doubted the wisdom of adding to that ambiguity byadopting an article which aimed at a change of sub-stance but whose language failed to achieve one. Inhis view, the need for certainty in legal relations re-quired the Committee to choose the wording of the 1969Vienna Convention for article 65, paragraph 3. Hisdelegation therefore supported the proposal by Austriaand Egypt. The Committee must realize that the choicebetween the two alternatives was a matter of substance,not of drafting, and needed to be fully debated beforethe article could be sent to the Drafting Committee.

38. Mr. WIBOWO (Indonesia) said that the Inter-national Law Commission had stated in paragraph (4) ofits commentary to article 65 that the new wording ofparagraph 3 indicated that an objection to a notificationunder the article could be raised at any time. His delega-tion felt that view to be incompatible with the referenceto the three-month period which paragraph 2 contained.It did not consider that paragraph 3 needed to departfrom the 1969 Vienna Convention, and it would there-fore support the proposal by Austria and Egypt.

39. Mr. UNAL (Turkey) said that his delegation con-sidered that the Austrian-Egyptian amendment im-proved the Commission's text and would facilitate theinterpretation and application of article 65, paragraph 3.


40. Mr. RIPHAGEN (Netherlands) observed that thestatements by the United Nations and Australia hadmade it clear where the difficulty lay. While paragraph 2dealt with a time-limit for the party notifying its intentnot to perform a treaty, that was not the same period asthe one which governed the right to raise an objection tothe notification. Most of the matters pertaining to lossof the right to raise an objection related to article 45, towhich there was a reference in paragraph 6 of article 65.The interpretation of the 1969 Vienna Convention wasquite clear, and the wording used in that instrumentwould therefore be satisfactory for article 65, para-graph 3. The Conference should make it clear, how-ever, that the reason for reinstating the wording of the1969 Convention was not that the period allowed forraising an objection was too short.

41. The CHAIRMAN said that the main point seemedto be whether there were any considerations in thearticle which would justify using a different formulationfor it from the one in the 1969 Vienna Convention. Theactual interpretation of that Convention was not atissue. Since widespread support had been expressedfor the amendment proposed by Austria and Egypt, hewould take it, if he heard no objection, that the Commit-tee adopted it and referred article 65, paragraph 3, asamended, to the Drafting Committee.

// was so decided.

Organization of work42. Mr. BERMAN (United Kingdom) said that as amember of the Drafting Committee, he wished to raise ageneral question about the relationship between thework of the Drafting Committee and that of the Com-mittee of the Whole. His delegation and other delega-tions were concerned about the terms in which theCommittee of the Whole referred some articles to theDrafting Committee. Although the line between sub-stance and drafting was often uncertain, they felt thatthe Committee of the Whole was leaving too muchresponsibility for matters of substance to the DraftingCommittee.43. Taking article 62 as an illustration of his point, thediscussion had revealed general support for the Inter-national Law Commission's text, support from somedelegations for both of the proposals to amend it andsupport from other delegations for one or other ofthose proposals, as well as disagreement on whetherthe points at issue were matters of substance or ofdrafting. Following the discussions, however, the Com-mittee had apparently adopted both the Commission'stext and the two amendments and had referred them allto the Drafting Committee. Since his own delegationhad not expressed support for either amendment it hadbeen surprised to hear that the amendments had beenadopted. He asked the Chairman for guidance as to howthe Drafting Committee should proceed in such cases.

44. The CHAIRMAN said that in summing up thediscussion on article 62, he had given the Committee ofthe Whole his understanding of both amendments andhad asked whether there were any objections to thatunderstanding. Since there had been none, that un-derstanding had formed the basis of the Committee's

decision to refer both amendments to the Drafting Com-mittee as generally acceptable, together with the Inter-national Law Commission's text.

45. Mr. BERMAN (United Kingdom) agreed that theChairman had given an interpretation of the intent un-derlying the amendments proposed by Argentina andthe Soviet Union and that no objection had been voicedto that interpretation. It was wrong, however, to saythat the Committee had accepted the use of theirwording. That was for the Drafting Committee to de-cide, and it would not be bound by the decision of theCommittee of the Whole because that Committee hadnot adopted a particular wording.

46. Mr. MONNIER (Switzerland) said that the rep-resentative of the United Kingdom had raised a veryimportant question. The amendment by Argentina toarticle 62 (A/CONF. 129/C. 1/L.57) was an illustration ofthe difference between substance and form: on the onehand, it proposed a substantive change by adding thewords "of a State" to a new subparagraph 2 and, onthe other, a change of form by combining paragraphs 2and 3. The debate on the Soviet Union amendment(A/CONF. 129/C. 1/L.59) had shown that all delegationswere agreed on the substantive point that only Statescould have boundaries and that only States could deter-mine them. It was clear, therefore, that the changessought by the two amendments touched on the sub-stance of the article. The Committee should be awarethat action of the kind it had taken in regard to article 62could complicate the work of the Drafting Committee.

47. Mr. STEFANINI (France) endorsed the viewsexpressed by the representatives of the United King-dom and Switzerland. His delegation could not agreeto the transmission of the International Law Commis-sion's text of article 62 to the Drafting Committeetogether with two amendments which partly contra-dicted each other. The Drafting Committee was not anegotiating body; it could adapt a text, but it couldnot be expected to combine two amendments with op-posing points of view. If amendments which involvedsubstantive differences were referred to the DraftingCommittee, his delegation might well be obliged torefuse to examine them there. Articles on which therewas disagreement should be regarded as pending andnegotiated elsewhere than in the Drafting Committee.

48. Mr. NASCIMENTO e SILVA (Brazil) said thatparagraph 2 of rule 48 of the rules of procedure providedthat the Drafting Committee should consider any draftarticles referred to it by the Committee of the Wholeafter initial consideration by that Committee. It wasalso empowered to prepare draft and give advice ondrafting as requested by the Committee of the Whole.Accordingly, the Drafting Committee could send arti-cles back to the Committee of the Whole for furtherconsideration. As he understood it, after initial con-sideration of a draft article, the Committee of the Wholewas entitled to send amendments to that article to theDrafting Committee for an opinion.

49. Mr. MUTZELBURG (Federal Republic of Ger-many) said that it was clear from the rules of proce-dure that the Drafting Committee was not a negotiatingbody; it should be remembered that international or-


ganizations were entitled to participate in reaching aconsensus on matters of substance—in other words, tonegotiate—but not to participate in the work of theDrafting Committee.50. The CHAIRMAN said that it was generallyagreed that the Drafting Committee should concentrate

on drafting. If discussions which had already takenplace in the Committee of the Whole were repeated inthe Drafting Committee, the latter should send the arti-cle back to the former for further consideration.


23rd meetingFriday, 7 March 1986, at 10.50 a.m.




Article 73 (Cases of succession of States, responsibilityof a State or of an international organization, out-break of hostilities, termination of the existence of anorganization and termination of participation by aState in the membership of an organization)

1. Mr. HAFNER (Austria), introducing his del-egation's amendment to paragraph 1 of article 73(A/CONF. 129/C. 1/L.63), said that the article touchedon very delicate matters. One of the guiding principlesof the present Conference was that, as far as possible,each article should be in line with the correspondingarticle of the 1969 Vienna Convention on the Law ofTreaties.1 However, paragraph 1 of the InternationalLaw Commission's draft of article 73 referred to "theoutbreak of hostilities between States parties to thattreaty", whereas article 73 of the 1969 Vienna Conven-tion referred only to "the outbreak of hostilities be-tween States".

2. The final wording of that provision of the 1969Convention had been formulated at the Conference onthe Law of Treaties itself, as a result of negotiation: theInternational Law Commission having decided that thedraft articles on the law of treaties should not refer tohostilities at all, two proposals on the point had beensubmitted, respectively by Hungary and Poland and bySwitzerland (A/CONF.39/C.1/L.279 and L.359),2 andhad led the Conference to include the words "outbreakof hostilities between States" in the article.3. It was clear from the Official Records of the Con-ference on the Law of Treaties that the reference it hadmade to hostilities between States, without furtherqualification, had been deliberate and added in fullknowledge of the legal consequences of that formula-


1 Ibid., document A/CONF.39/14, par. 636.

tion. Paragraph (5) of the commentary to the presentdraft article (see A/CONF. 129/4) indicated why theInternational Law Commission had decided to retainthe words "hostilities between States", but gave noreason for the addition of the words "parties to thattreaty", notwithstanding the fact that those wordscould conceivably create a new regime for the adminis-tration of treaties which differed not only in wording butalso in substance from that of the 1969 Convention,with unforeseeable but possibly far-reaching legal andpractical consequences.

4. The present Conference was certainly not the rightplace to embark, without due preparation, on formu-lating rules to determine the effect of events such ashostilities on treaties. Since there was no reason todepart from the text of the 1969 Vienna Convention, hisdelegation proposed that the wording of article 73 ofthat instrument should be adhered to.

5. Mr. SZASZ (United Nations), introducing theamendment proposed by the International Labour Or-ganisation, the International Monetary Fund and theUnited Nations (A/CONF. 129/C. 1/L.65), reminded theCommittee that although those organizations had sub-mitted an amendment to article 36 bis (A/CONF. 129/C.1/L.56), when introducing it (see 19th meeting,para. 23), they had indicated that their real preferencewas for the deletion of that article, as proposed bythe Austrian-Brazilian amendment to article 36 bis(A/CONF. 129/C. 1/L.49).

6. Powerful arguments had been adduced against thedeletion of the article, particularly by the Netherlandsrepresentative (19th meeting), the most trenchant ofthem being that, in its absence, the matter with which itdealt would fall under articles 34, 35 and 36. While hedid not necessarily agree with that interpretation, it wascertainly a possible outcome and had dangerous im-plications. It would be most undesirable if, in the sit-uations contemplated in article 36 bis, States mem-bers of international organizations could be regarded asthird parties to a treaty. The three international organ-izations proposing the amendment were therefore sub-mitting it as the appropriate wording for the Committeeto adopt if it decided to delete article 36 bis, so as tomake it clear that the entire subject with which thatarticle dealt was left out of the purview of the draftconvention.

23rd meeting—7 March 1986 165

7. That subject was part of the broader question of theinternal law of international organizations and the pos-sible liability of States for acts by international or-ganizations of which they were members. In the draftconvention, the question arose only in relation totreaty-making, but it could arise in many other spheresas well, including ordinary commercial agreements,damage to the environment and other means by whichan organization might become liable beyond its assets.It would be unfortunate if one small aspect of the largeissue of liability of member States was dealt with in thepresent case on the basis of a draft which did not reallyplease anyone. The proper context in which to considerthe whole question might be in the second phase of theInternational Law Commission's discussion of the rela-tions between States and international organizations.

8. If the amendment which had just been presentedwas adopted, the title of article 73 would have to bemodified. Since the proposal was closely linked to thefuture of article 36 bis, the consideration of which hadbeen postponed, he suggested that the proposed addi-tion to article 73 be taken up jointly with that article.

9. Mr. SAHOVIC (Yugoslavia) said that if the Aus-trian amendment to paragraph 1 was adopted, the for-mulation of the article would be much broader thanwhat had been proposed by the International Law Com-mission. That point might perhaps be referred to theDrafting Committee; all the same, his delegation pre-ferred the Commission's text. He agreed that the con-sideration of the three-organization amendment shouldbe deferred, as suggested.

10. Mr. STEFANINI (France) said that in generalhis delegation approved both the substance and thedrafting of the article. It would not have objected had itcontained reference to succession of international or-ganizations—not for the purpose of assimilating that tosuccession of States, but to draw attention to the rulesapplicable to the transition from one organization toanother. His delegation welcomed the Commission'sdecision that the article should not deal with hostili-ties involving international organizations. However, itshould be made clear that the enforcement measuresenvisaged in Chapter VII of the Charter of the UnitedNations could not—at least in the opinion of the Frenchdelegation—be considered as hostilities.

11. His delegation could support the Austrian pro-posal, but reserved its position on the three-organiza-tion amendment, the consideration of which should bedeferred until article 36 bis was taken up again.

12. Mr. RADY (Egypt) said that he preferred thewording proposed by Austria to the International LawCommission's draft of paragraph 1, which differed fromthe text in article 73 of the 1969 Vienna Convention; thereasons for that were not altogether clear, notwith-standing the Commission's commentary. He agreedwith the suggestion to defer consideration of the three-organization amendment.

13. Mrs. OLIVEROS (Argentina) supported the Aus-trian amendment, which reinstated the wording of the1969 Vienna Convention and made article 73 easier tounderstand; it also broadened its scope in a manner

which conformed with the International Law Commis-sion's original intention.14. As to the amendment of the three internationalorganizations, she reminded the Committee that herdelegation had supported the proposal to delete arti-cle 36 bis (see 20th meeting). If the Committee adoptedthat proposal, her delegation would favour the insertionof the proposed new paragraph 3 in the article andwould like its wording to be modified so as to make itclear that the obligations and rights of States which itreferred to were obligations and rights that were inconformity with the rules of the international organiza-tion. Her delegation felt that both amendments might bereferred to the Drafting Committee.

15. Mr. SIEV (Ireland) said there was a marked andsignificant difference between draft article 73 and arti-cle 73 of the 1969 Vienna Convention. The differencelay in the addition of the words "parties to that treaty"at the end of paragraph 1. An examination of the Inter-national Law Commission's commentary revealed noexplanation for those additional words. His delegationaccordingly supported the Austrian amendment, whichwould have the effect of aligning the draft article withthe corresponding provision of the 1969 Convention.

16. The problem raised by the three-organizationproposal could not be dealt with at present and mustawait the Committee's decision on article 36 bis.17. Mr. BARRETO (Portugal) said that the Interna-tional Law Commission had not given any convincingreason for adding the words "parties to that treaty"at the end of paragraph 1. His delegation would liketo hear the Expert Consultant's observations on thatpoint, but it could support the Austrian proposal evenwithout them, because that amendment did not alter themeaning of article 73 as drafted by the Commission.Article 73 and the Austrian amendment should there-fore be referred to the Drafting Committee. The Com-mittee should defer the consideration of the amendmentof the three international organizations for the reasonsstated by other speakers in the meeting.

18. Mr. HERRON (Australia) said that his delegationapproved article 73 as proposed by the InternationalLaw Commission, but could support the Austrianamendment as well.19. With regard to the three-organization proposal,his delegation had expressed support for the inclusionof article 36 bis in the future convention. The ques-tion, therefore, of introducing a paragraph 3 into arti-cle 73 if article 36 bis was deleted did not yet arise forthe Australian delegation. Nevertheless, should arti-cle 36 bis be deleted, it would be a sensible precautionfor the draft articles to contain a saving provision on thelines of the proposal of the three organizations. For thetime being, however, his delegation continued to ad-vocate the retention of article 36 bis.

20. Mr. RIPHAGEN (Netherlands) supported theAustrian proposal. There was an additional reason foreliminating the words "parties to that treaty": what-ever position was eventually taken about the situationof member States with respect to the treaties of aninternational organization to which they belonged, itwas obvious that if hostilities broke out between a


member State and an outside State, those hostilitiescould not fail to have an influence on the internationalorganization. If the words "parties to that treaty" wereretained at the end of paragraph 1, that situation wouldbe excluded from the purview of the safeguard clausewhich the paragraph contained.21. The proposal made by three international organ-izations could only be discussed when the Committeecame to deal with article 36 bis.22. Mr. SWINNEN (Belgium) supported the Aus-trian proposal. The Committee should take no decisionon the proposal of the three organizations until it de-cided whether to retain article 36 bis.23. Mr. ECONOMIDES (Greece) also supported theAustrian proposal, since it would introduce a desirableelement of precision into the text. The three-organiza-tion proposal did not really fall within the ambit ofarticle 73; basically, it dealt with questions of inter-national responsibility which were outside the scope ofthe draft convention. His delegation agreed that itsconsideration should be deferred until the Committeeexamined article 36 bis.24. Mr. NGUAYILA (Zaire) said that his delegationwould have no difficulty in accepting the text proposedby the International Law Commission. It could alsosupport the Austrian proposal. No decision could betaken on the amendment of the three organizations untilthe Committee settled the question of article 36 bis.25. The CHAIRMAN said that there appeared to bewidespread support for the Austrian amendment, aswell as general agreement to defer the considerationof the three-organization proposal. Accordingly, if heheard no objection, he would take it that the Committeeagreed to refer the International Law Commission'stext of article 73, as amended by the Austrian proposal,to the Drafting Committee and to defer the considera-tion of the other proposal until it had taken a decision onarticle 36 bis.

It was so decided.

Article 75 (Case of an aggressor State)

26. The CHAIRMAN invited the Committee to con-sider article 75, to which no changes had been pro-posed.27. Mr. MUTZELBURG (Federal Republic of Ger-many) said that draft article 75 was identical in sub-stance with article 75 of the Vienna Convention on theLaw of Treaties. At the time of signing that Convention,his country had expressed an understanding of the arti-cle3 which his delegation wished to reiterate in order tomake its position clear on the identical aspect of thepresent draft article. Accordingly, it stated that theFederal Republic of Germany, in conformity with arti-cle 4, understood the words "measures taken in confor-mity with the Charter of the United Nations" in draftarticle 75 as referring to measures decided upon infuture by the Security Council of the United Nations

3 Ibid., (United Nations publication, Sales No. E.68.V.7), Sum-mary records of the meetings of the Committee of the Whole, 76thmeeting, paras. 44 to 46.

relating to the maintenance or restoration of interna-tional peace and security.28. The CHAIRMAN said that, if there were no fur-ther comments, he would take it that the Committeeagreed to refer article 75, as proposed by the Inter-national Law Commission, to the Drafting Committee.

// was so decided.

Article 77 (Functions of depositaries)29. Mrs. OLIVEROS (Argentina) said that she hadconsiderable misgivings about the text of paragraph 2 ofarticle 77, and especially about the use of the conjunc-tion "or" to link subparagraphs (a) and (b). The Inter-national Law Commission, in paragraph (9) of its com-mentary to the article (see A/CONF. 129/4), had given alengthy explanation of that particular point; it endedwith a sentence stating that some members of the Com-mission had considered that the word "or" was unsatis-factory and should either be replaced by "and" orsimply be deleted. Her delegation would not in factoppose the adoption of article 77 as it stood, but it didwish to put on record its misgivings about the unsatis-factory drafting of paragraph 2, which left the door opento difficulties of interpretation.30. The CHAIRMAN, speaking as the representativeof EGYPT, said that he shared the Argentine represen-tative's concern, particularly about subparagraph 2 (b).31. Mr. HAFNER (Austria) referred to subpara-graph 1 (g), under which the depositary was required toregister a treaty with the Secretariat of the United Na-tions. He noted that the scope of Article 102 of theCharter of the United Nations, which provided for theregistration of treaties with the Secretariat, had beenbroadened by the regulations to give effect to Arti-cle 102 adopted by General Assembly resolution 97 (I)in 1946, as amended by General Assembly resolution482 (V) in 1950. Article 10 of those regulations madeprovision for the filing and recording by the Secretariatof the United Nations inter alia of treaties or inter-national agreements other than those entered into byone or more Members of the United Nations. In hisdelegation's view, therefore, the word "registering" inarticle 77, subparagraph 1 (g), should not be interpretedas excluding the right of the Secretariat of the UnitedNations to file and record treaties or internationalagreements entered into by bodies not Members of theUnited Nations. Since the same word was used in arti-cle 77 of the 1969 Vienna Convention, it was not hisdelegation's intention to propose an amendment to ar-ticle 77.

32. Mr. GAUTIER (France) agreed with the remarksmade about paragraph 2. His delegation would not op-pose the adoption of article 77, but considered that theDrafting Committee should clarify the meaning of thatparagraph.33. Mr. HERRON (Australia) endorsed the viewexpressed by the Austrian representative about sub-paragraph 1 (g), pointing out that article 80, para-graph 1, provided not only for the registration but alsofor the filing and recording of treaties by the Secre-tariat. His delegation too saw no need to change thewording of draft article 77 from that of article 77 of

23rd meeting—7 March 1986 167

the 1969 Vienna Convention, although the omission inthe latter article of a reference to filing and recordingdid seem to have been a mistake.34. With regard to paragraph 2, in its written com-ments4 the United Nations had expressed its ac-ceptance of the conjunction "or" between subpara-graphs (a) and (b), citing by way of example the mannerin which the Secretary-General dealt with instrumentsof accession to the Convention on the Privileges andImmunities of the Specialized Agencies which wereaccompanied by reservations, namely, that he did notbring them first to the attention of the General Assem-bly. It might be preferable for the depositary first toact in that way and withhold the matter from the com-petent organ of the international organization con-cerned. Even if the word "or" in subparagraph 2 (a)was replaced by "and", the depositary could stillrely on the words "where appropriate" in subpara-

4 See Yearbook of the International Law Commission, 1982,vol. 11, Part II, p. 136. para. 12.

graph 2 (b) as justification for not bringing a matterbefore the competent organ. His delegation thereforeconsidered that the replacement of "or" by "and" wasunnecessary and that the existing wording should beretained.35. Mr. BERNAL (Mexico) expressed his support forthe remarks made by the Austrian and Australian rep-resentatives.36. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that his delegation too agreed withthe observations which had been made concerning thefunctions of depositaries.37. The CHAIRMAN said that, in the absence offurther comment, he would take it that the Committeewished to adopt article 77 and refer it to the DraftingCommittee.

// was so decided.

The meeting rose at 11.50 a.m.

24th meetingMonday, 10 March 1986, at 11.25 a.m.





Annex (Arbitration and conciliation procedures estab-lished in application of article 66)

1. Mr. AVAKOV (Union of Soviet Socialist Re-publics), introducing his delegation's amendmentsto article 66 (A/CONF. 129/C.1/L.60) and the annex(A/CONF. 129/C.1/L.61), said that the problem withwhich article 66 dealt was quite an old one but was at thesame time new. It had been considered anew at all thesix Vienna codification conferences, although in prin-ciple it remained the same.2. International arbitration was one of the oldest in-stitutions in international law, and its creation anddevelopment were associated with the search for legalmeans for the peaceful settlement of disputes. It im-plied, on the one hand, a special procedure for con-sidering and settling international disputes and, on theother, temporary international bodies established bymutual agreement between States for the settlementeither of specific types of disputes or of disputes ingeneral.

3. The practical experience of such arbitration was asyet only limited. Between 1900 and 1940, only 23 caseshad been referred to the Permanent Court of Arbitra-tion at The Hague, and from 1940 to the present, onlytwo. Arbitration was sometimes also carried out on anad hoc basis. The distinctive feature of internationalarbitration was that the procedure was established bythe parties to the dispute themselves and the decisionwas binding on them. Arbitration was dealt with inArticle 12 of the Covenant of the League of Nations,and delegations would be familiar with the failure ofarbitration in that context in 1938 and 1940.

4. The desirability of parties to any dispute seeking apeaceful means of settlement of their own choice wasenshrined in Article 33 of the Charter of the UnitedNations, the Declaration on Principles of InternationalLaw concerning Friendly Relations and Co-operationamong States in accordance with the Charter of theUnited Nations (General Assembly resolution 2625(XXV), of 24 October 1970, annex). Part V of the FinalAct of the Conference on Security and Co-operation inEurope signed at Helsinki on 1 August 1975 and theManila Declaration on the Peaceful Settlement of Inter-national Disputes (General Assembly resolution 37/10,of 15 November 1982, annex).5. Under present conditions, however, the concept oflimiting the sovereignty of States in favour of inter-national legal institutions appeared to be unrealistic: atbest a tribute to pacifism and idealism, at worst a meansof exerting pressure on those countries adopting a morebalanced position towards the possibility of using inter-national arbitration and other legal institutions. That


mittee, if the point of principle he had explained wasagreed.10. Mr. SZASZ (United Nations), introducing theamendment in document A/CONF.129/C.1/L.66, saidthat the change which his organization proposed tosubparagraph (a) of article 66 was based on the fun-damental principle that the Conference should seek toreproduce as faithfully as possible the provisions of the1969 Vienna Convention on the Law of the Treaties,1having due regard to certain differences in subject-mat-ter. The essential element of the corresponding pro-vision in that Convention was that disputes concerningarticles 53 or 64, involving jus cogens, should be sub-mitted to the International Court of Justice for decisionunless there was agreement by common consent tosubmit them to arbitration. Like the International LawCommission, the United Nations recognized that thoseparticular provisions could not be reproduced in thepresent draft convention, since international organiza-tions could not be parties to disputes before the Inter-national Court. The Commission's text provided, indefault of consensual arbitration, for arbitration underprecise rules set out in the annex, analogous to thecompulsory conciliation procedure for disputes otherthan those involving,/*/.? cogens that was prescribed inthe annex to the 1969 Vienna Convention.

11. The Commission had considered the possibility ofproviding for a request to the International Court for anadvisory opinion but, in view of the imperfections anduncertainties it perceived in that procedure, it had de-cided, as indicated in paragraph (4) of the InternationalLaw Commission's commentary to article 66, not toinclude it in the text of article 66. The United Nationsdiffered, however, from the Commission on that point:it felt that the advisory opinion procedure for the res-olution of disputes was a sufficiently well-establishedinstrument, particularly as there could be a back-upprocedure; it also considered it of overriding impor-tance that matters involving jus cogens should be re-solved as far as possible by the International Courtof Justice. Only if that procedure proved impossibleshould some other method, such as arbitration, beemployed.

12. The formulation of the United Nations amend-ment was somewhat complicated because it not onlyproposed additional text—italicized in the document—but also attempted to indicate that certain optional dele-tions would not affect the additional text. The amend-ment maintained the overriding provision of the 1969Vienna Convention allowing all of the parties to thedispute by common consent to submit the dispute toarbitration, even though that was a departure from theprinciple that all disputes involving jus cogens shouldbe submitted to the International Court of Justice.However, the concluding phrase of subparagraph (a)was changed from "agree to submit the dispute to an-other arbitration procedure"—implying ad hoc accept-ance of that procedure—to "have agreed to submit thedispute to [another] arbitration [procedure]—referring

was demonstrated in particular by the 1975 ViennaConvention on the Representation of States in TheirRelations with International Organizations of a Univer-sal Character and by the 1978 Vienna Convention onSuccession of States in Respect of Treaties and the 1983Vienna Convention on Succession of States in Respectof State Property, Archives and Debts, which providedfor procedures that were not legally binding.6. His delegation was not opposed to arbitration ingeneral. It could be useful in the technical field, in thecase of agreements on such questions as air transport,technical assistance or investment guarantees, whereprovision for conciliation and international tribunalscould be worthwhile. But the present Conference wasconsidering a draft convention of a general nature. TheInternational Law Commission's article 66 was there-fore unsatisfactory, in his delegation's view, since re-course to any means of peaceful settlement of disputesshould be by mutual agreement between the parties;that would be both more correct and more effective.

7. A further argument against mandatory arbitrationwas that there was a lack of international experienceof international organizations having recourse to ar-bitration, let alone of any such organization agreeingin advance to compulsory arbitration. Article 66 wasthus both legally inconsistent and politically harmful,and that was the reason underlying his delegation'samendment.8. For similar reasons, his delegation was also op-posed to the Commission's proposed annex on arbitra-tion and conciliation procedures established in applica-tion of article 66, and had accordingly submitted anamendment to that text calling, inter alia, for the dele-tion of section II. The annex was both too unwieldy andlegally without justification. However, his delegation'sproposals concerning the texts under considerationwere open to modification; thus they might be replacedby a wording similar to the provisions on conciliation inthe 1975 Convention on the Representation of States inTheir Relations with International Organizations of aUniversal Character, which were well balanced andmore suitable. Article 66 was, in his delegation's view,of vital importance. He therefore hoped that theremight be co-operation and compromise on the part ofother delegations in the matter.

9. Mr. HARDY (European Economic Community),introducing the Community's amendment to the annex(A/CONF.129/C.1/L.64), said that the words "TheStates and international organizations which constituteone of the parties to the dispute" in paragraph 2 of thedraft might give the impression that the parties to adispute would invariably be composed of both Statesand international organizations. However, there werein fact three possible categories of parties to a dispute,namely, a State (or States), an international organiza-tion (or organizations) or a State and an internationalorganization. The wording in paragraph 2 should bechanged accordingly, and a similar change should bemade in the parallel phrase in the second paragraph ofsubparagraph 2 (b). The amendment was not controver-sial, and indeed a similar distinction was made in theSoviet amendment. He hoped that the Community'samendment might be referred to the Drafting Com-



either to ad hoc submission or to the situation in whichan arbitration procedure was already called for by theinternational treaty concerned.13. If there was no such agreement between the par-ties, the dispute should be referred to the InternationalCourt of Justice for an advisory opinion. It had beenargued that reference to the advisory opinion procedureshould not be made in a general convention, such as thepresent draft convention, because most internationalorganizations, as well as States, could not make a directrequest to the Court for an advisory opinion. However,it was not difficult for such entities to take appropriatesteps to seek an advisory opinion, for example, throughthe United Nations General Assembly, which was con-stantly being addressed by entities of all types on mat-ters of international concern. A dispute about juscogens interfering with the validity of an internationaltreaty could certainly be considered by the Assembly.

14. The United Nations differed with the sponsors ofthe seven-Power amendment (A/CONF.129/C.1/L.69)concerning the need to spell out the procedureswhereby an advisory opinion of the International Courtof Justice might be requested. In its view, the phrase"appropriate steps" would suffice. In default of con-sensual arbitration, an arbitral tribunal established inaccordance with the annex should then hold that thetaking of steps to request an advisory opinion of theCourt was a prior condition for bringing the case beforeit. It was true that there was no absolute certainty in theadvisory opinion procedure. The decision to requestsuch an opinion must, under Article % of the Charter ofthe United Nations, be taken by certain specified polit-ical organs, and the political organ concerned mightdecide it more judicious not to submit the request. TheCourt itself was not bound to respond to the request,but it was a matter of record that the present Court hadresponded to every single request made to it, consid-ering that it was its duty to render that type of assist-ance. Accordingly, the United Nations was sufficientlycertain of the outcome to designate the advisory opin-ion procedure as its primary and preferred method.

15. Another element in the United Nations amend-ment was the two options, "will" and "may", con-tained in the proposed subparagraph (c). For certaintyin the matter of the settlement of disputes, "will"—inthe sense that the parties to a dispute must consideran advisory opinion as binding—would be preferable.However, it was not absolutely essential. If the Inter-national Court of Justice gave an advisory opinion on adispute involving jus cogens, the parties would un-doubtedly take due account of it, as would an arbitraltribunal, whether or not it was provided that the opin-ion should be binding. The Court had indicated on anumber of occasions that whether or not the parties toa dispute intended to regard its advisory opinion asbinding would not affect its consideration of questionsaddressed to it. From its point of view, agreement toaccept its opinions was not relevant to its own juris-prudential work.

16. The main difference between the United Nationsamendment and the seven-Power amendment was thatthe text of the former was much simpler. While bothwere obviously inspired by the same considerations,

his organization did not think it necessary to describein detail who should go through what organ in orderto request an advisory opinion. One provision of thatamendment which his organization found troublesome,however, was that in subparagraph 2 (a). If a disputewere to arise within the context of the proposed con-vention, an international organization would necessar-ily be involved, but under subparagraph 2 (a) its viewswould not be presented to the Court. Unlike the advi-sory opinion procedure, on which his organization pre-ferred to rely, the procedure for resolving contentiousdisputes made no provision for participation by othersthan the parties. The work of the International Court ofJustice would be virtually the same whether the submis-sion was under the contentious or the advisory pro-cedure.

17. Finally, regarding the annex, he noted that underparagraphs 9 and 14 the expenses of arbitral tribunalsor conciliation commissions would have to be borneby the United Nations. The Conference could not, ofcourse, adopt an instrument that burdened the UnitedNations. The United Nations Conference on the Law ofTreaties had recognized that point and had adopted, inthe annex to its Final Act,2 a resolution requesting theGeneral Assembly to approve the provisions of para-graph 7 of the annex to the 1969 Vienna Convention,which contained a similar provision. The General As-sembly had thereupon adopted resolution 2534 (XXIV)of 8 December 1969 explicitly approving that para-graph. An analogous procedure would need to be un-dertaken by the present Conference, but that was aroutine matter with which the Drafting Committeemight be asked to deal.

18. Mr. WANG Houli (China), introducing thejoint amendment of Algeria, China and Tunisia(A/CONF.129/C.1/L.68), said that article 66 was themost difficult one the Committee had yet had to con-sider. The solution adopted by the International LawCommission had in fact been rejected by some of itsown members. Whether or not the difficulties pre-sented by the article could be settled in a satisfactorymanner would have a direct bearing on the Confer-ence's success. The three-Power amendment had beensubmitted in a spirit of co-operation, with a view toresolving disputes that involved the interpretation orapplication of the articles of part V of the convention ina way that was acceptable to the majority of States. Thesponsors considered that any international dispute, in-cluding disputes arising from the application or inter-pretation of the present convention, should be settledthrough direct negotiations by the parties according tothe principle of free choice of means, or by commonconsent, or through any other of the peaceful meansprovided for in the Charter of the United Nations andthe norms of international law. That principle, whichhad stood the test of time, had been endorsed in the1982 Manila Declaration on the Peaceful Settlement ofInternational Disputes and in other international legalinstruments.

19. Arbitration was one of the most efficient meansfor the peaceful settlement of international disputes and

2 Ibid., p . 285.


had frequently been resorted to by the internationalcommunity. It was therefore appropriate that article 66should provide for the arbitration procedure as a meansof settlement. His delegation believed, however, thatthe basic intent of arbitration was that it should be avoluntary jurisdiction based on the principle of sov-ereignty. A State was under no obligation to consentto submit a dispute to arbitration, nor did internationallaw require it to submit itself to compulsory arbitra-tion. In practice, moreover, in the absence of commonconsent by the parties, rulings that required compul-sory arbitration frequently proved incapable of imple-mentation and did not necessarily contribute to thepeaceful settlement of disputes. The sponsors of thethree-Power amendment therefore recommended thatarbitration should be set in motion only with the com-mon consent of all the parties.

20. The present Conference was engaged in drawingup a general international convention, and its aim wasto ensure the widest possible ratification of and acces-sion to that instrument. Seventeen years had elapsedsince the adoption of the 1969 Vienna Convention, butnot many countries had ratified or acceded to it. Onehundred and ten States had participated in the UnitedNations Conference on the Law of Treaties, but therewere only 44 parties to the Convention. One of themajor reasons for that situation was the inability ofmany countries to accept the Convention's provisionsin article 66 concerning compulsory jurisdiction. If thepresent draft convention also adopted compulsory ar-bitration as a means of settling disputes concerningju,?cogens, similar difficulties would arise for many coun-tries, and the entry into force and application of theconvention would be adversely affected. It was safe topredict that article 66 in its present form would preventa number of countries from acceding to or ratifying theconvention.

21. The sponsors felt that the conciliation procedureprovided for in the article was a sound and practicalmeans for the peaceful settlement of disputes. Theamendment therefore suggested that, in the case ofdispute over any article in part V, including articles 53and 64, any party to the dispute might set in motion theconciliation procedure specified in the annex. The factthat that would provide increased opportunities for thesettlement of jus cogens disputes was another impor-tant element in the amendment.

22. He noted that the amendment did not rule out thepossibility of a dispute involving articles S3 and 64 beingsubmitted to arbitration if all the parties consented to it.The amendment would require only minor changes inthe International Law Commission's text, and, if it wasaccepted, the corresponding changes required in theannex could be carried out by the Drafting Committee.

23. Mr. OGISO (Japan), introducing on behalf of itssponsors—which had now been joined by Nigeria—theamendment to article 66 in A/CONF.129/C.1/L.69/Rev. 1 said that they considered that article to be one ofthe most important in the proposed convention. In theirview, the article should be strengthened by making itmore comprehensive, so that it would cover all thesituations and issues that could be expected to arise.He acknowledged that the text of the amendment was

somewhat complex. In order to facilitate the Commit-tee's understanding of its purpose and wording, hewished to explain the basic philosophy underlying it.

24. Both the 1969 Vienna Convention and the presentdraft articles distinguished between disputes that con-cerned jus cogens and those that concerned other pro-visions of part V, and they established entirely separateprocedures for dealing with the two types of disputes.The sponsors of the amendment endorsed that basicapproach. Disputes that concerned the application orinterpretation of articles 53 and 64 not only would be ofa legally controversial nature but might well involvehighly political considerations. The procedure for set-tling such disputes must therefore be worked out withparticular care.

25. The 1969 Vienna Convention's definition of a per-emptory norm of general international law (jus cogens)was a norm accepted and recognized by the interna-tional community of States as a whole as a norm fromwhich no derogation was permitted and which could bemodified only by a subsequent norm of general inter-national law having the same character. Thus, no State,either unilaterally or jointly with other States, could belegally permitted to take any action in contravention ofsuch a norm.

26. Norms of jus cogens were of a universal natureand contained obligations erga omnes. Because ofthat universal nature the sponsors of the amendmentdeemed it essential to provide in the draft articles fora mechanism whereby objective judgement could bemade, in a uniform and stable manner, on questionssuch as whether a given norm had the character of juscogens or whether a specific treaty was in conflict withjus cogens. The existence of a single competence todecide those questions would eliminate the risk ofwidely diverging jurisprudence onyws cogens.

27. In the view of the sponsors, the institution bestqualified to make such an objective judgement wasundoubtedly the International Court of Justice. Theyfelt that the Court was, and should be, the only tribunalcompetent to deal with questions of jus cogens in anobjective and uniform manner. As drafted by the Inter-national Law Commission, article 66 of the 1969 ViennaConvention gave no role to the International Court ofJustice. After long and heated discussion at the UnitedNations Conference on the Law of Treaties, the presenttext of the article, containing the idea of referring dis-putes involving questions of jus cogens to the Inter-national Court of Justice, had finally been adopted onthe wise and constructive initiative often countries, towhich he wished once again to pay tribute.

28. That text should constitute the basis for any newelements introduced into the present draft conventionbecause of its new subject-matter. It was clear fromparagraph (2) of the International Law Commission'scommentary to article 53 (see A/CONF. 129/4) that thenorms of jus cogens applied not only to States but alsoto international organizations, since the latter were es-tablished by States under agreements which they con-cluded and the establishing States constituted theirmembers. It was natural, therefore, and even logicallynecessary, that the present Conference should adopt


the same approach of entrusting the International Courtof Justice with the task of handling any disputes con-cerning jus cogens. Such a parallel between the twoconventions was based on the consistent demand, de-riving from the special nature and significance of theconcept of jus cogens, that judgements regarding juscogens be made uniformly by the same authoritativeworld body, irrespective of whether treaties betweenStates or treaties concluded by international organiza-tions were involved.

29. The eight-Power amendment was a concrete re-flection of those basic ideas. In making the necessaryadjustments to article 66 of the 1969 Vienna Conventionto accommodate the new situation now being dealtwith, one difficult question needed to be solved withoutincluding any change in the Statute of the InternationalCourt of Justice or the Charter of the United Nations.Under the Statute, only States could take a dispute tothe Court for decision and the General Assembly, theSecurity Council, and other organs of the United Na-tions and specialized agencies could only request ad-visory opinions of the Court under Article 96 of theCharter of the United Nations. The question was howthe future convention could give other internationalorganizations access to the Court for advisory opin-ions. The solution embodied in the text of the eight-Power amendment was to enable such an organizationto approach the Court indirectly through a State Mem-ber of the United Nations which was also a member ofthe organization concerned, after an appropriate de-cision by the General Assembly or by the SecurityCouncil.

30. Paragraph 1 of the amendment was similar to theintroductory part of article 66 as proposed by the Inter-national Law Commission. Paragraph 2 set forth theprocedures to be followed with respect to disputes con-cerning jus cogens. Subparagraphs (a) to (d) were in-tended to cover all conceivable cases of disputes clas-sified according to the type of parties to the dispute.Subparagraph (e) stipulated that any advisory opiniongiven by the International Court of Justice was to beaccepted as decisive by all the parties to the dispute.If the advisory opinion given pursuant to subpara-graphs 2 (b) to 2 (d) were to have no binding effect,those provisions would be extremely unbalanced vis-a-vis those of the 1969 Vienna Convention and of sub-paragraph 2 (a).

31. Because of the fundamental nature of jus cogens,the opinions of the International Court of Justice must,in the view of the sponsors, be made binding both incontentious cases and where an advisory opinion wassought. In stipulating that an advisory opinion wasdecisive, the sponsors of the amendment had usedwording similar to that employed, for example, in sec-tion 30 of the Convention on the Privileges and Immu-nities of the United Nations (General Assembly resolu-tion 22 (I), of 13 February 1946) and in section 32 ofthe Convention on the Privileges and Immunities ofthe Specialized Agencies (General Assembly resolu-tion 179 (II), of 21 November 1947).

32. Subparagraph 2 (/) of the amendment envisaged asituation where a request for an advisory opinion mightnot, for some reason, reach the Court. The provisions

of subparagraphs 2 (b) to 2 (d) contained no guaranteethat all such requests would be properly made. Sub-paragraph 2 (f) therefore provided that, in such aneventuality, any one of the parties to the dispute mightsubmit it to arbitration in accordance with the annex tothe draft convention.

33. Under paragraph 3 of the amendment, the partiesto a dispute could agree by common consent to submitthe dispute to arbitration. The arbitration could followany procedure, but reference was made to that spec-ified in the annex, as in the case of subparagraph 2 if).Paragraph 4 dealt with disputes concerning the prob-lems of invalidity, termination and suspension of theoperation of treaties other than those involving juscogens and adopted the same procedure as was chosenin the 1969 Vienna Convention, namely, a compulsoryconciliation procedure as specified in the annex.

34. The sponsors of the amendment believed thattheir proposal did not call for any change in the sub-stance of the annex as drafted by the International LawCommission, and that only slight changes of a purelydrafting nature were needed in that text. Such changesas were necessary could be left to the Drafting Com-mittee.

35. Mr. RIPHAGEN (Netherlands), introducing hisdelegation's amendment to section III of the annex tothe draft articles (A/CONF. I29/C. 1/L.67), stressed theimportance of the system of compulsory conciliationprovided for in annex V to the United Nations Conven-tion on the Law of the Sea,3 under which the Concilia-tion Commission itself decided whether or not it hadcompetence, acting under the section in question of thatannex, in cases of disagreement concerning such com-petence. Such a decision was in fact implicit by virtue ofthe compulsory character of the conciliation.

36. Notwithstanding the statement by the represen-tative of Japan in his introduction of the eight-Poweramendment, that the sponsors of that text—which in-cluded the Netherlands—did not believe their proposalcalled for any change of substance in the annex to thepresent draft convention as proposed by the Interna-tional Law Commission, the Netherlands delegationhad thought it useful to include a similar provision insection III of the annex. The amendment was a tech-nical one, aimed at clarifying the implication of the text.

37. Mr. TUERK (Austria) said that his delegation hadbecome a sponsor of the eight-Power proposal becauseit was convinced of the need for a dispute settlementprocedure to guarantee the effectiveness of the rules ofinternational law.

38. Article 66, in its reference to articles 53 and 64,linked the dispute settlement procedure iojus cogensand consequently to the compulsory jurisdiction of theInternational Court of Justice, even if only as a sub-sidiary means of arbitration if the parties to the disputeso wished. Within the framework of the law of treaties,disputes concerning questions of jus cogens were sub-ject to the compulsory jurisdiction of a dispute set-

' See Official Records of the Third United Nations Conference onthe Law of the Sea, vol. XVII (United Nations publication, SalesNo. E.84.V.3), document A/CONF.62/122.

172 Summary records—Committee at the Whole

tlement organ whose decisions were binding upon theparties. Priority was given to the International Courtbecause of the binding nature of its decisions, because itwas the principal judicial organ of the United Nationsand because it was able to ensure a homogeneous anduniform interpretation of the rules of jus cogens. Fur-thermore, the Manila Declaration on the Peaceful Set-tlement of International Disputes emphasized that legaldisputes should as a general rule be referred by theparties to the International Court of Justice in accord-ance with the provisions of the Statute of the Court.

39. It was not possible to transfer the provisions of the1969 Vienna Convention to the present draft. Existingmechanisms did not permit adoption of that solution;the International Court's limited possibility of settlingdisputes involving international organizations and theright of States to request advisory opinions were wellknown. A solution therefore had to be found whichpreserved the procedure of the 1969 Vienna Conven-tion as far as possible, as well as the ideas underlying it,but at the same time took account of the existing legalpossibilities. The amendment of which his delegationwas a co-sponsor had the advantage of combining bothof those features, and he therefore believed it should beacceptable to the international community as a whole.It should be borne in mind, however, that subpara-graph 2 (a) was linked with the outcome of the negotia-tions on the new article which had been proposed inconnection with article 3.

40. Adoption of the Soviet Union proposal to deletesubparagraph (a) would cause certain problems, as themeaning of subparagraph (b), and particularly of thephrase' 'any of the other articles in part V of the presentarticles", would not then be clear. The proposal alsoappeared to exclude the possibility that a dispute be-tween an international organization and a State might,on a compulsory basis, be subject to proceedings in-volving binding decisions. The Austrian delegation wasnot aware of any circumstance that would prohibit the

establishment of such an obligation. A large number ofheadquarters agreements contained such a clause, asdid the statutes of some international organizations.For example, article 28 of the 1970 Statute of the Inter-national Investment Bank, set up within the frameworkof the Council for Mutual Economic Assistance, pro-vided that disputes between the Bank and its clientswere subject to arbitration. If a State were a client,the same situation as would occur with the Interna-tional Law Commission's draft would arise. A similardispute settlement clause was to be found in article 37 ofthe articles of the Bank for Economic Co-operation.Moreover, the suggestion that the proposed deletionwas justified by the unequal position of States andinternational organizations was not confirmed in prac-tice, because whatever kind of mechanism was pro-vided for in constituent instruments of internationalorganizations and in treaties concluded by them for thepeaceful settlement of disputes between States and in-ternational organizations, the relevant provisions werebased on the principle of equality. The Austrian delega-tion therefore saw no need to exclude the compulsoryjurisdiction of an international mechanism which wouldlead to binding decisions. On the contrary, such juris-diction was necessary, particularly in cases involvingjus cogens.

41. The amendment of Algeria, China and Tunisiacalled only for an "opting in" procedure for compul-sory settlement of disputes, which went only half-waytowards the goal which the Conference was striving toattain.

42. The United Nations amendment had basically thesame structure as the text proposed in the eight-Poweramendment, of which the Austrian delegation was asponsor. He hoped that a unified text might result fromfurther negotiations.






Article 36 bis (Obligations and rights arising for Statesmembers of an international organization from atreaty to which it is a party) (continued)*


1. The CHAIRMAN reminded the Committee that, inaddition to the amendments proposed to article 36 bisitself, by Austria and Brazil (A/CONF. 129/C.1/L.49),the Netherlands (A/CONF. 129/C.1/L.50), Switzerland(A/CONF. 129/C.1/L.51), the International Labour Or-ganisation, the International Monetary Fund and theUnited Nations (A/CONF. 129/C. I/L.56) and the SovietUnion (A/CONF. 129/C. 1/L.62), the Committee hadbefore it, in accordance with the decision taken at its23rd meeting, a related proposal by the same threeorganizations relating to article 73 (A/CONF. 129/C.1/L.65).2. Mr. TEPAVICHAROV (Bulgaria) said that thesubject-matter to be regulated by article 36 bis was very


complex. The rule embodied in it might well modify anexisting rule of treaty law, namely, the one set forth inarticle 34. Almost all the international organizationswhich had expressed their views on article 36 bis hadstated either that the article would not apply to them orthat their practice was at variance with its contents.

3. The article was intended to regulate the relationsbetween States members of an international organiza-tion but not parties to a treaty to which the organiza-tion itself was a party. In its commentary to the article(see A/CONF. 129/4), the International Law Commis-sion had made perfectly clear the situations to whichthe article was intended to apply, as well as the re-quirements for the establishment of rights and obliga-tions for member States in the situation envisaged. Inthe light of the Commission's explanations, the text ofarticle 36 bis could be interpreted in several differentways. In his delegation's view, the amendments whichhad been proposed to the article did not succeed inremoving the ambiguities.

4. It had been stated that article 36 bis provided for thepossibility of expressing a collective consent before thetreaty was concluded; in his delegation's view, that wasonly one of several possibilities which the article af-forded. The Commission itself had considered the caseof such a consent as an exceptional one, but the scopeof the article was obviously wide and would extend toheadquarters agreements.

5. It could hardly be claimed that article 36 bis soughtto codify existing international custom or practice. Ifthe article was to form part of the draft convention, anumber of questions concerning its interpretation andapplication would have to be clarified.

6. The introductory wording of the article made itclear that, in order for the obligations and rights to arisefor States members of an international organization inthe circumstances specified in the article, that intentionmust be expressly stated in the treaty, as must theconditions and effects to which the parties consented inregard to those rights and obligations. However, theuse of the words "or have otherwise agreed thereon"introduced an element of uncertainty, since they couldbe construed as providing either for an implied consentby some of the parties to the treaty or for a consentwhich might not be given in written form; and as definedin article 2, subparagraph 1 (a), a treaty to which thedraft articles applied must be in written form.

7. He now wished to turn to the consent of the Statesmembers of the organization and to the conditions laiddown in subparagraphs (a) and (b). Paragraphs (13)to (16) of the International Law Commission's com-mentary indicated that three conditions were necessaryto bring article 36 bis into operation and that they ap-plied cumulatively: the consent of the parties, providedfor in the introductory wording, the consent of theStates members, regulated by subparagraph (a), andthe communication of that consent, provided for insubparagraph (b).

8. The main question raised by subparagraph (a) wasthe manner of expressing the consent. The represen-tative of the Netherlands had explained at the 19thmeeting that it could be given through the constituent

instrument of the organization containing a provision tothat effect; if so, the assumption was that the individualconsents of its members would not be needed at thetime of the negotiation of the treaty by the internationalorganization and its partners. If that was the case, it wasnot clear how subparagraph (b) would be applied. Whowould have to furnish the information concerning theprior consent given by the members? Could it be as-sumed that the international organization, by virtue ofits constituent instrument, was empowered to interpretthe will of its member States in the matter? If so, therequirement of communication set forth in subpara-graph (b) would become a mere formality and would notcorrespond with the view expressed by the Commis-sion in paragraph (16) of its commentary that the ele-ments communicated before the closure of the nego-tiation of a treaty with regard to the consent of themembers of the organization were "a vital factor".

9. A second means whereby the consent of the Statesmembers could be expressed was, as subparagraph (a)provided, "by virtue of the constituent instrument".In his delegation's view, that meant explicit consent.The words "or otherwise" in subparagraph (a) sug-gested a further possibility but were extremely vague;the proposal by the Netherlands to replace them by thewords "in accordance with other rules" did not domuch to clarify the position. The essential element insubparagraph (a) was that of the unanimous consent ofthe States members of the international organization.The question of how that unanimous agreement wasreached was a procedural matter which lay outside thescope of the present discussion.

10. The considerations he had mentioned led his del-egation to support the Soviet Union amendment. If themajority did not favour that amendment, however, hisdelegation would formally propose the deletion of thewords "by virtue of the constituent instrument of thatorganization or otherwise" in subparagraph {a). Asthus amended, the wording of the subparagraph wouldleave the widest choice possible to the States con-cerned to determine by future practice how they wouldexpress their consent, who must communicate it to theparties to the negotiation and exactly when—prior to, atthe same time as, or after the negotiation.

11. Mr. REUTER (Expert Consultant) said that hewished to speak at some length on the problems raisedby article 36 bis in order to explain the InternationalLaw Commission's attitude towards it. His task hadbeen facilitated by the observations made on the arti-cle by the representative of the Netherlands, who inhis statement at the 19th meeting had expressed somevaluable considerations which reflected the Commis-sion's views.

12. The Committee was faced with the apparentlysimple problem of deciding whether to adopt the article,possibly with some amendments, or to delete it. Threequestions therefore arose. The first was whether arti-cle 36 bis was essential for the future convention. Thehistory of the codification of international law sug-gested that no article of a draft was indispensable. Thatbeing so, a second question arose: Was it advisable toinclude article 36 bis in the draft? He would not com-ment on that, since it was a question for Governments.


13. There remained the third and more modest ques-tion whether article 36 bis was useful and, if so, why.He would reply to that in the light of the discussion ofthe article by the International Law Commission. Thearticle dealt with the circumstances in which a treatyconcluded by an international organization had effectsfor its member States. The question whether such atreaty could have legal effects in the relations betweenthe member States and a State which had concluded thetreaty with the international organization was governedby the rules of the organization, and by those rulesalone. Normally the treaty would not have such effects,but the rules of the organization might provide for cer-tain effects of the treaty in the relations between theorganization and its member States. The position takenby the Commission was that it accepted that the mem-ber States of an organization were free to decide theirwishes on that point and to include a rule on the subjectin the constituent instrument of the organization.

14. Accordingly, it had been suggested that the pro-visions of article 36 bis should be amended so as tosubordinate them entirely to the rules of the organiza-tion. A formula of that type would mean almost pushingat an open door, for it was obvious that the relationsbetween an international organization and its memberStates were governed by the rules of the organization.

15. Some of the amendments proposed to the articleraised the question whether it was legitimate to re-quire the unanimous consent of the States concerned. Itseemed preferable not to do so, and instead to lay downthe rule that the member States, as sovereign States,were free to settle that question themselves. Their un-doubted right to settle the problem of the effects of thetreaties of the international organization was broughtout in the wording of subparagraph (a) of article 36 bis.

16. A further issue would arise in the case of an inter-national organization whose constituent instrumentspecified that the member States had the obligation toobserve the treaties concluded by the organization. Aprovision of that kind would not have any effect for theState which was the partner of the international organ-ization in a treaty. The International Law Commissionhad considered whether a treaty concluded by an inter-national organization could create rights or obligationsin the relations between its member States and the Statewhich was a partner of the organization in the treaty.The Commission had had to deal with that question inthe light of the rules embodied in the 1969 ViennaConvention on the Law of Treaties,1 in the first place,the rule that a treaty did not create obligations for athird State. There was thus a clear-cut distinction be-tween the parties to a treaty and third parties.

17. It had been pointed out in the Committee that itwas somewhat strange to say that the member States ofan organization were third parties in their relations witha State which had concluded a treaty with the organiza-tion. The International Law Commission had consid-ered that point, and asked itself whether cases existedin which a State was neither a party to a treaty nor a

1 Official Records of the United Nations Conference on theLaw of Treaties (United Nations publication. Sales No. E.70.V.S),p. 287.

third party, but in a somewhat intermediate position. Ithad arrived at the conclusion that, where a treaty wasconcerned, a State must be either a party or a thirdparty. Accordingly, in relation to treaty concluded byan international organization, its member States werethird States.18. The position of third States under the proposedconvention was the same as the one set forth in arti-cles 34,35 and 36 of the 1969 Vienna Convention: in thecase of obligations, a treaty could not impose them on athird State without its express and written consent, butin the case of rights there was a presumption of consentby a third State to the creation of a right in its favour—inother words, a strict rule for obligations and a moreflexible one for rights. A problem arose, however, withtreaties which provided at the same time for rights andobligations for third parties; if a treaty conferred awhole body of such rights subject only to the perfor-mance of a single obligation, it would seem that the rulewhich should prevail was the one which governed thecreation of the rights.

19. Reference had been made in the Committee to thecase envisaged in article 37 of the 1969 Vienna Conven-tion, namely, that of the revocation or modification ofobligations or rights of third States. That article, andthe corresponding draft article, stipulated that no suchrevocation or modification could take place without theconsent of the third State—a situation which wouldcreate fewest difficulties.20. In regard to article 36 bis, the International LawCommission had been fully aware that a treaty con-cluded by an international organization did not nor-mally create obligations for its member States. Therewas some value, however, in providing for the pos-sibility of the member States having relations with theState which had concluded the treaty with the organiza-tion. The basic principle underlying article 36 bis wasquite simple: the member States, the international or-ganization and the third State were free to adopt thesolutions they wished, but they should do so with clar-ity and precision. The provisions of article 36 bis as awhole were flexible; they left the States concerned freeto decide matters by agreement among themselves.

21. It had been suggested that the provisions of arti-cle 36 bis might represent a threat to existing headquar-ters agreements which had been functioning satisfac-torily. A headquarters agreement certainly created alegal nexus between the international organization andthe host State, but did it also create legal relationsbetween the member States of the organization and thehost State? There was no single answer to that ques-tion: each agreement had its own pattern, and eachorganization its own rules and practice. Where a head-quarters agreement provided for legal relations be-tween the host State and the member States of theorganization, the situation, if article 36 bis was deleted,would be governed by article 36. As it stood, that articleimplied a situation in which the member States wouldbenefit from the rights provided for in the treaty.

22. In conclusion, he stressed that he had not soughtto defend article 36 bis but merely to explain thethinking of the International Law Commission aboutthe problems which the article involved. The Commis-


sion had worked hard to make article 36 bis both clearand flexible. It was for the Committee to weigh thevalue of those qualities against any advantages whichmight lie in ambiguity and rigidity.

23. Mr. OGISO (Japan) observed that article 36 biswas closely related to the definition of "third State"and "third organization" in article 2, subpara-graph 1 (h). As the discussion of the draft articles in theInternational Law Commission had shown, there weretwo schools of thought about the position of a Statemember of an international organization in relation to atreaty to which that organization was a party: Was it athird State in the strict sense of the term, or was it a"less pure" third State because, in a way, it partic-ipated in concluding the treaty through the organiza-tion? His delegation remained undecided on the matter,but took the view that the existence of the formerschool of thought provided a sufficient reason for con-sidering the problems which the Commission sought tomeet in article 36 bis. That being so, his delegation wasconvinced that articles 34,35 and 36 could deal with thematter adequately, and that discussion of it on the basisof article 36 bis would only invite confusion.

24. The Netherlands representative had argued at the19th meeting that article 36 bis sought merely to in-troduce a new element, namely, that member Statesmight be permitted to express their consent to be boundby a treaty collectively, and possibly beforehand. TheJapanese delegation had highly appreciated his detailedexplanation of the nature of the article, but was unableto support his argument, since it believed that arti-cles 35 and 36 did not exclude the possibility of prioracceptance of obligations and prior assent to the acqui-sition of rights by a third State. A third State mightnormally be expected to express its consent to be boundby specific provisions of a treaty only after the treatywas concluded, but it might conceivably express inadvance its acceptance of obligations or its assent to thecreation of certain rights by a treaty still under negotia-tion, in order to encourage the negotiating parties toconclude the treaty.

25. Several speakers had raised the issue of the collec-tive will of the States members of international or-ganizations. His delegation did not believe that arti-cle 36 bis was necessary to deal with questions of thatkind. The general rule regarding third States and thirdorganizations was clearly laid down in article 34, andembodied the principle of consensuality; a third Stateor third organization was not bound by any provisionsof treaties unless it so agreed. That principle certainlyapplied as well to the relationship between memberStates of an international organization and a treatyto which the latter was a party. As the representativeof the Federal Republic of Germany had correctlyexplained at the 20th meeting, there were three caseswhere the States members of an organization werebound by provisions of a treaty which that organizationconcluded. One was the case where the States membershad agreed to be bound beforehand by virtue of theconstituent instrument. In such a case, there was ab-solutely no need for article 36 bis. To establish anorganization empowered to conclude treaties whichwould create certain rights and obligations for its mem-

ber States, without obtaining their specific consentother than by following the procedures set out in itsconstituent instrument, was undoubtedly to imply theacceptance by those States in advance of such futurerights and obligations. That was one of the situationsalready covered by articles 35 and 36.26. It might be countered that States did not usuallyconfer such a broad power on an organization in itsconstituent instrument; that was true, and it was pre-cisely because the rules in article 36 bis would rarely beapplicable that the Japanese delegation had not beenpersuaded of its usefulness and necessity. In any case,that question concerned articles 6 and 46, which dealtwith the capacity of international organizations to con-clude treaties, and not article 36 bis.

27. The second case referred to by the representativeof the Federal Republic of Germany was that in whichmember States could be bound by the treaty in accord-ance with other rules of the organization. The argumentwhich held for the first case was valid for the second aswell: the fact of being a member of an organization,participating in the making of its rules and abiding bythem, constituted assent to the possible creation ofrights and obligations. But the number of internationalorganizations which had "other rules" of the kind en-visaged was possibly extremely small. That issue toofell under articles 6 and 46, but where rules empoweringthe organization to create certain rights and obligationsfor its member States existed, articles 35 and 36 ap-peared to regulate the situation adequately.

28. The third case was the ad hoc expression of thecollective will of the States members of the organiza-tion. That was the issue addressed in the Soviet Unionproposal. That kind of collective consent appeared notto be covered by articles 35 and 36. The basic principlewas once again the same: if the States members of anorganization so agreed, they would be bound by thetreaty to which the organization was a party; otherwise,they would not. Such agreements could be made in-dividually or collectively, depending on the wish of themember States; and in no case would rights or obliga-tions arise for a member State without its consent,which might be expressed in the constituent instrumentor other rules of the organization, or by a specific actof acceptance or assent performed either individuallyor collectively. Since the case of collective will beingexpressed on an ad hoc basis was so rare, and in anycase was already covered in a broad sense by article 34,his delegation considered it unnecessary that a specialprovision should be prepared for it.

29. All those considerations tended to show that theneed to retain article 36 bis was very slight. The rep-resentative of the International Labour Organisationhad rightly pointed out, at the 19th meeting, that sinceinternational organizations were so diverse, it wasalmost impossible to lay down a general rule gov-erning the relationship between them and their memberStates. Furthermore, the rules and practices of organ-izations were constantly evolving. A controversial pro-vision would make the situation even more confusing.The Committee had already adopted articles 34, 35and 36, which regulated the matter clearly. Each inter-national organization had its own constituent instru-


ment as well as other rules, and those rules should besufficient to regulate the relationships between the or-ganization and its member States. His delegation be-lieved that the deletion of article 36 bis would havethe benefit of allowing a general rule on the matter todevelop freely as practice accumulated.30. His delegation might be able to accept arti-cle 36 bis if it was amended appropriately, but none ofthe changes proposed so far were satisfactory. It wouldtherefore be best to delete the article, as proposed byAustria and Brazil in their amendment.31. Mr. HALTTUNEN (Finland) said that his delega-tion shared the doubts expressed about article 36 bis.One of its objections to the article lay in the fact thatStates members of an international organization couldbe parties to the same treaty as the organization ofwhich they were members, and thereby acquire com-peting rights and obligations. States members of anorganization had a general obligation under customaryinternational law to observe the organization's treaties,and therefore could hardly be seen as real third partiesto those treaties.

32. Furthermore, when changes occurred in the mem-bership of an intergovernmental organization—andthere were a number of examples of that in practice—difficulties could arise as to the continuance, termina-tion or suspension of the operation of the organization'streaties as between the former member State and theother parties to the treaty, and indeed among the othermember States or member organizations.

33. The Finnish delegation shared the view that thesubject-matter of article 36 bis was not ripe for codifica-tion and that the article might well be deleted. In thefuture, two conventions—the Vienna Convention onthe Law of Treaties and the one now being drafted—would be applicable, in some cases simultaneously, totreaty relations between States and international organ-izations; in that situation, the absence of article 36 biswould possibly make it easier to apply not only thoseconventions but also, in cases where States were notparties to either of them, the general rules of inter-national law.

34. His delegation therefore supported the Austrian-Brazilian proposal. As far as the other proposals forarticle 36 bis were concerned, it saw some merit in thembut did not believe that any of them could solve theproblems which the article created.

35. Mr. NASCIMENTO e SILVA (Brazil) pointedout that the delegations of Austria and Brazil, in pro-posing the deletion of article 36 bis, had taken intoaccount both the work of the International Law Com-mission and the past and future practice of internationalorganizations.

36. The explanations of the article given by the ExpertConsultant and the representative of the Netherlandscorresponded with the International Law Commis-sion's understanding of it, but not "with the ordinarymeaning to be given to the terms of the treaty" underarticle 31 of both the Vienna Convention on the Law ofTreaties and the draft convention. In other words, inorder to understand article 36 bis it would be necessary

to have recourse to the supplementary means of inter-pretation provided for in article 32.37. He wished to assure the Committee that the pur-pose of the Austrian and Brazilian proposal to deletethe article was not to deny the existence of the rulein question but simply to exclude it from the draftconvention, since the issue was not ripe for codifi-cation. In his opinion, some international organiza-tions might develop their practice along the lines ofarticle 36 bis; others might depart from it. In otherwords, the deletion of the article was not likely to freezefuture developments. He shared the view that arti-cles 34, 35 and 36 covered the matter satisfactorily.

38. Mr. AL-HADDAD (Bahrain) said that arti-cle 36 bis posed problems for his delegation. That it wasopen to many different interpretations had been clearlybrought out in the debate, and in particular in the excel-lent explanation provided by the Expert Consultant.Nevertheless, the International Law Commission hadmade strenuous efforts to draft an acceptable text onthe subject. His delegation's attitude to it would bedictated by the need for a consensus, whether thatproved to be for the deletion of the article or for itsadoption.

39. Mr. SAHOVIC (Yugoslavia) said that his viewson article 36 bis had changed more than once during thelengthy process of preparation of the draft articles. Hisdelegation had finally concluded that the InternationalLaw Commission had been right to include the article inthe text in the form it had proposed.

40. In the early stages of preparation, there had beenconsiderable feeling that the subject-matter of the arti-cle might be dealt with in connection with third States;later it had become clear that the issue had far broaderimplications for international organizations and theirstatus in international law than had been supposed. Thepolitical and legal issue of the relationship betweeninternational organizations and their members had as-sumed serious proportions, and it would appear that theintention behind article 36 bis was to contribute sub-stantially to a strengthening of the role of those organ-izations and a clarification of that relationship. Thatwas something which should be stressed, because theadoption of the draft, and any consequent decisions,would mark a new stage in the development of thepersonality of international organizations in interna-tional law—in the evolution of what was known as the"organized" international community.

41. Furthermore, article 36 bis was one of the fewarticles which implied a decisive step forward in theprogressive development of international law. Al-though it might be argued, and had been, that practicewas not yet sufficiently mature for the Conference tocodify a general rule such as the article contained, itwould not be the first time that such a step had beentaken by a codification conference. Moreover, the ar-guments which had been advanced in favour of theadoption of the article themselves demonstrated thatthe issue was one which called for legal clarification as amatter of principle.

42. Looking at the matter from a more technical pointof view, he observed that all the proposals to alter the


wording of the article presumed the formulation of arule; they sought to improve the product of the Inter-national Law Commission's lengthy cogitations, andparticularly to render more explicit the conditions un-der which the rule should be applied—for example, byreducing the uncertainty created by the word "other-wise" in the Commission's draft.43. It was his delegation's view that to omit from thedraft convention any reference to the question of obli-gations and rights arising for States members of aninternational organization from a treaty to which itwas a party would be to neglect an important element ofthe Conference's task; it therefore believed that arti-cle 36 bis should be retained. An acceptable formula-tion for it which accommodated the various proposalsfor altering the text proposed by the International LawCommission might perhaps be found by the DraftingCommittee.44. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that the statements made by the represen-tatives of the international organizations and by Japan,Brazil and Finland had led him to consider article 36 bisin a new light. It had been correctly pointed out thateach international organization had its own rules, andthat articles 34, 35 and 36 covered the situation contem-plated in article 36 bis adequately. He therefore with-drew the amendment proposed by his delegation andsupported the proposal by Austria and Brazil to deletethe article. He appealed to the sponsors of the re-maining amendments to do the same.

45. Mr. SIEV (Ireland) said that his grave doubtsabout the usefulness of article 36 bis had been con-firmed by the Expert Consultant's statement. His del-egation was convinced that the article should be de-leted. Article 34 set out the general rule applicable tothird States and third organizations, while articles 35and 36 dealt respectively with their obligations and theirrights. The latter two articles were sufficient to regu-late the situation of third States with regard to rightsand obligations, which was the subject-matter of arti-cle 36 bis. He thought it would be premature to adopt aprovision such as the one in draft article 36 bis. Hisdelegation therefore supported the proposal by Austriaand Brazil to delete the article.

46. Mr. RAMADAN (Egypt) said that, in his view, itwas inadvisable to adopt the article as it stood. Theexpression in it of the principle of unanimity wouldamount to giving a right of veto to every member of theorganization. As the consent for which the article pro-vided must embrace all the provisions of the treatyestablishing the rights and the obligations, it wouldseem that the relevant conditions should appear in theconstituent instrument, in which case subparagraph {b)would be superfluous. With regard to the question ofnotification, it might be impossible to conclude a treatyif some States failed to provide the information men-tioned in subparagraph (b). Even if the unanimity re-quirement was replaced by the requirement of a qual-ified or simple majority, difficulties might arise for theorganization in a case in which dissenting States wereamong its major financial contributors.

47. Those considerations, combined with the fact thatthe practice of international organizations was not yet

established firmly enough for the codification of such ageneral rule as the one in article 36 bis, led his delega-tion to support the Austrian and Brazilian proposal todelete it. It also supported the three-organization pro-posal for article 73, which left open the possibility ofdeveloping such a rule gradually.

48. Mr. SANG YONG PARK (Republic of Korea)said that he had some sympathy for the InternationalLaw Commission's attempt, in article 36 bis, to regulatean exceptional situation with legal certainty. He never-theless supported the proposal to delete the articlebecause it would rarely be applicable. The issue shouldbe left in abeyance until practice in the matter haddeveloped further.

49. Mr. BOONPRACONG (Thailand) said that hisdelegation considered article 36 bis as a progressivedevelopment of international law, since it was intendedto provide an additional facility for States membersof an international organization to accept obligationsarising out of treaties to which the international organ-ization was a party, without deviating from the generalrule outlined in article 34. He did not believe that a lackof unanimity among member States would prevent aninternational organization from concluding a treaty.His delegation supported the adoption of article 36 bisas it stood.

50. Mr. KADIRI (Morocco) said that article 36 biswas intended to break new ground, but legal practicewas not yet sufficiently developed for its adoption. Inhis view, the application of articles 35 and 36 would beamply sufficient to cover for the time being the matterdealt with in article 36 bis. If the latter article wasadopted, it might, without the guidance provided byestablished practice, become a mechanism for dimin-ishing the sovereignty of States. He asked himself,for example, whether a headquarters agreement im-plied an agreement between the host State and a Statemember of the organization; if so, the State membermight become bound against its will. The provision inarticle 36 bis might be appropriate for the integrativetype of international organization, of which the Euro-pean Economic Community was a good example, butless so for one based on co-operation. The sovereigntyof States must remain intact, clear and effective. Hisdelegation agreed with the Expert Consultant that thepresent convention would only be successful if it con-tained scope for future development. His delegationtherefore supported the proposal to delete article 36 bis.

51. The CHAIRMAN said that there seemed to bewidespread support for the proposal by Austria andBrazil to delete article 36 bis. He asked the delegationsof the Netherlands and Switzerland and of the Inter-national Labour Organisation, the International Mon-etary Fund and the United Nations whether they couldfollow the example of the Soviet Union and withdrawtheir respective amendments, thus paving the way fora decision to delete the article. If they could not, in-formal consultations on the matter would seem the bestcourse.

52. Mr. SZASZ (United Nations), speaking on be-half of the sponsors of the amendment in documentA/CONF.129/C.1/L.56, said that they would withdraw


that proposal if the Committee decided to delete arti-cle 36 bis. However, its deletion would leave unchartedground covered neither by the 1969 Vienna Conventionnor the proposed convention, which motivated theproposal in document A/CONF.129/C.1/L.65 to add anew paragraph to article 73.

53. Mr. RIPHAGEN (Netherlands), supported byMr. BARRETO (Portugal), proposed that the consid-eration of the article should be deferred.

It was so decided.







Annex (Arbitration and conciliation procedures estab-lished in application of article 66) (continued)*

1. Mr. BOSCO (Italy) said that in the matter of set-tlement of disputes it was clearly necessary to adhere asclosely as possible to the text of the 1969 Vienna Con-vention on the Law of Treaties.1 The notion of juscogens and the identification of peremptory norms ofgeneral international law were fundamental questions,and specially effective procedural safeguards in thatarea were therefore required. Article 66 differed fromthe corresponding article in the 1969 Vienna Conven-tion because of the need to take account of the fact that,under Article 34, paragraph 1, of the Statute of theInternational Court of Justice, only States could beparties in cases before the Court. Nevertheless, hisdelegation considered it important to achieve unifor-mity of interpretation in a matter as delicate as that ofperemptory norms of general international law. Thatcould only be ensured by a judicial body of a universalcharacter enjoying established authority, such as theInternational Court of Justice. The Court, moreover,in addition to being able to pronounce judgments incontentious cases, could also give advisory opinionswhich States and international organizations concernedcould, if the present Conference so decided, accept asbinding. Indeed, even in the absence of a decision ofthe Court, he believed that an advisory opinion given bythe Court would be heeded and taken into due account.His delegation therefore welcomed the amendments ofthe United Nations (A/CONF. 129/C.1/L.66) and of

* Resumed from the 24th meeting.1 See Official Records of the United Nations Conference on the

Law of Treaties (United Nations publication, Sales No. E.70.5),p. 287.

Austria, Colombia, Ireland, Japan, Mexico, Nether-lands, Nigeria and Switzerland (A/CONF. 129/C. I/L.69/Rev.l), which adopted such an approach.

2. Its position was consistent with its traditional sup-port for mechanisms of third-party settlement thatcould be activated unilaterally, since they gave fullapplication to Article 1, paragraph 1, of the Charter ofthe United Nations, which set the aim of bringing about"by peaceful means, and in conformity with the princi-ples of justice and international law, adjustment orsettlement of international disputes". In that connec-tion, he emphasized that no State gave up any part of itssovereignty when it freely and voluntarily consented tomandatory jurisdiction. That principle was enunciated,inter alia, in the Declaration on Principles of Inter-national Law concerning Friendly Relations and Co-operation among States in accordance with the Charterof the United Nations (General Assembly resolution2625 (XXV), annex, of 24 October 1970), which statedthat "Recourse to, or acceptance of, a settlement pro-cedure freely agreed to by States with regard to existingor future disputes to which they are parties shall not beregarded as incompatible with sovereign equality"; andan identical paragraph was contained in the 1982 ManilaDeclaration on the Peaceful Settlement of InternationalDisputes (General Assembly resolution 37/10, annex,of 15 November 1982).

3. The problem of the applicable law would be solved,since the International Court of Justice would applyArticle 38 of its Statute. The advisory opinion pro-cedure under Article 66 of the Statute was a very broadone allowing the presentation of written or oral state-ments and comments on statements made by others,thus providing ample opportunity for intervention inthe proceedings.

4. Italy supported the amendment to the annexproposed by the European Economic Community(A/CONF. 129/C. 1/L.64) since it provided useful clari-fication. It also supported the proposal by the Neth-erlands (A/CONF. 129/C. 1/L.67), which contained asound principle. He wished to suggest that, for the sakeof harmony, a provision similar to paragraph 6 in sec-tion II of the annex should be added to section III. Hisdelegation would also like to see added to section II aparagraph listing sources of law to be applied by arbitraltribunals, either specifically or by stating that the tri-bunal must decide on the basis of international law. He


recalled in that connection the difficulties which hadarisen from the so-called Kellogg arbitration treaties ofthe 1920s and 1930s, which excluded from arbitrationquestions falling within the domestic jurisdiction butfailed to specify on what legal basis the distinction wasto be made. His delegation, in a spirit of co-operation,would do its utmost to devise for the future conventionthe best possible system of settlement of disputes.

5. Mr. GUNEY (Turkey) said that the InternationalLaw Commission had drawn a distinction between theprocedures to be adopted relating to disputes con-cerning the application or interpretation of articles 53and 64 and those concerning any of the other articles inpart V of the draft convention. It had therefore con-cluded that there was insufficient justification for main-taining a distinction between procedures applicable toStates inter se and those applicable in relations withinternational organizations. It had not been possible toalign article 66 and the annex with the correspondingprovisions of the 1969 Vienna Convention, as the for-mer dealt with treaties to which international organiza-tions were parties and such bodies could not submitdisputes directly to the International Court of Justice.In his delegation's view, article 66 did not reflect thepractical requirements of the international communityin respect of the peaceful settlement of disputes. ManyStates were reluctant to submit to mandatory jurisdic-tion or jurisdiction organized on a regional basis, andthat was also true of mandatory arbitration. The prac-tice of international organizations provided very fewexamples of their subjecting themselves to mandatoryjudicial arbitration. In his view, the best way of settlingdisputes was by direct and meaningful negotiation be-tween the parties, the solution favoured in the 1982Manila Declaration on the Peaceful Settlement of Inter-national Disputes.

6. His delegation supported the amendment of Al-geria, China and Tunisia (A/CONF.129/C.1/L.68),which took account of the desire of States not to belimited to mandatory arbitration as a means of settlingdisputes, as well as of the specific character of thepresent draft convention and the practices of inter-national organizations. However, if that amendmentwere not acceptable to the Committee, his delegationcould support the proposals in the two amendments ofthe Soviet Union (A/CONF.129/L.60 and L.61), sincethey reflected the realities of legal and political relationsin the international community and contained the prin-ciple of freedom of choice of the means of peacefulsettlement of disputes. The three-Power amendmentwas, he felt, a matter of clarification connected with thespecific nature of the draft convention under considera-tion. It should therefore be referred to the DraftingCommittee.

7. His delegation considered the eight-Power amend-ment incompatible with the realities of internationalrelations and attitudes towards mandatory jurisdiction.It took no account of the specific nature of the futureconvention and also ran counter to the established prac-tice of international organizations. In his delegation'sview, mandatory application of the advisory opinionsof the International Court of Justice stretched the limitsof international law and practice in consultative pro-

cedures and set a bad precedent. It might even beconsidered to be contrary to the letter and spirit of therelevant provisions of the Charter of the United Na-tions and the Statute of the International Court of Jus-tice. His delegation was therefore unable to supportsuch an amendment. For the same reason, his delega-tion could not support the amendment proposed by theUnited Nations.

8. If the article were not amended, his delegationwould be willing to co-operate with the sponsors of theamendments it supported, namely, those of Algeria,China, and Tunisia and of the Soviet Union, in draftinga procedure for the peaceful settlement of disputesbased on the corresponding provisions of the 1975Vienna Convention on the Representation of States inTheir Relations with International Organizations of aUniversal Character and the 1978 Vienna Conventionon Succession of States in Respect of Treaties.

9. Mr. SURIYA (Thailand) said that his delegationcould support article 66 and the annex proposed by theInternational Law Commission, which had a number ofpoints to commend them. They treated all subjects ofinternational law, whether States or international or-ganizations, equally, in that they could rely on the sameforum of justice. They did not force a State to go to anyparticular forum and gave freedom of choice betweenthe prescribed measure and any other measure whichmight be preferable to the parties. Nevertheless, ina spirit of goodwill and co-operation, his delegationwould not oppose the adoption of a different text,should that be the desire of the Committee.

10. Mr. AINCHIL (Argentina) expressed his delega-tion's firm and enduring commitment to the peacefulsolution of disputes, an approach which the Charter ofthe United Nations recognized as fundamental to themaintenance of peace and international security. Itspreference was for direct negotiation as the best meansof settlement of matters in dispute, and it thereforewelcomed the three-Power amendment, which intro-duced some flexibility into the text of the article bymaking the consent of the parties a prerequisite for thesubmission of a dispute to arbitration and by providingnecessary safeguards.

11. His delegation regretted that it could not supportthe draft proposed by the International Law Commis-sion, since the principle it contained, which wouldallow a State, without its consent, to be brought beforean arbitral tribunal by an international organization,was unacceptable. There was a profound differencebetween the nature of States as ordinary subjects ofinternational law and international organizations assubjects derived from the will of States, and that dif-ference called for a different procedure. A formula suchas that contained in the three-Power amendment wouldprovide a satisfactory solution.

12. Mr. MIMOUNI (Algeria) said that the eight-Power amendment proposed a complex system of akind considered and rejected by the International LawCommission. The amendment not only established avariety of procedures for settling disputes, but alsocontained a dangerous innovation in conferring a man-datory character on advisory opinions of the Inter-


national Court of Justice. His delegation was there-fore unable to support it. He felt that in the frameworkof jurisdictional settlement a pragmatic approach wasnecessary, given international practice, which hadshown that parties to a dispute submitted with difficultyto jurisdictional settlements, whether by raising manyobjections to the jurisdiction of the body or the inadmis-sibility of a petition, or sometimes even by refusing toappear before a judicial body. The compromise estab-lished by the 1969 Vienna Convention instituting re-course to the International Court of Justice relied on thefact that only States were involved in that instrument.Such a procedure was impossible, however, in the con-text of the present draft convention.13. The three-Power amendment, of which his coun-try was a sponsor, did not go so far as to delete allreference to arbitration, as had been proposed else-where, but provided an intermediate and realistic so-lution involving optional arbitration in the case ofdisputes related to articles 53 and 64. States and inter-national organizations did not have the same character-istics, and it would be unacceptable to allow a distortionof the sovereignty of a State by depriving it of its right togive its consent before the matter was taken up by thearbitral body. There was no intention of introducingany uncertainty into treaty relations governed by goodfaith. International practice had shown, however thatjurisdictional decisions were less likely to be contestedwhen the parties to a dispute had agreed on the choiceof procedure.14. The three-Power amendment did not constitutea departure from the 1969 Vienna Convention, sinceeven in the case of a treaty where the parties wereboth States and one or more international organiza-tions, disputes between States parties only would begoverned by that Convention. That seemed to be theprinciple in the new articles proposed by Cape Verde(A/CONF.129/C.l/L.19/Rev.l), the United Kingdom(A/CONF.129/C.1/L.27) and Italy (A/CONF.129/C.1/L.42). The three-Power amendment modified the 1969Convention without departing from it, in so far as ittook account of the principle of the common consent ofthe parties in the matter of the settlement of disputes.

15. His delegation reserved the right to comment onthe amendments to the annex once the choice of disputesettlement procedure had been made.

16. Mrs. THAKORE (India) said that the distinctionmade between articles 53 and 64 relating to jus cogensand the remaining articles in part V of the conventionwas justified because the issues arising under the for-mer articles would necessarily relate to fundamentalquestions of international law. Since the rules of juscogens had an overriding character, jurisdiction shouldbe conferred on the International Court of Justice insuch matters, as was the case under the 1969 ViennaConvention. The use of the same forum for both the1969 Convention and the present convention wouldeliminate the risk of widely diverging jurisprudence ona matter of extreme importance. The International LawCommission had dealt with the fact that internationalorganizations could not be parties in cases before theInternational Court of Justice by providing in subpara-graph (a) of article 66 for arbitration as the means of

settling disputes concerning articles 53 or 64, irrespec-tive of whether the parties to them were States orinternational organizations. A compulsory conciliationprocedure had been provided in subparagraph (b) forthe remaining articles in part V. The Commission, afterdue consideration, had rejected the idea of providingfor a right to request an advisory opinion from theCourt.

17. The Indian delegation was unable to support theamendment of the Soviet Union to article 66, since itdeparted from the compromise solution arrived at, afterlengthy debate, in the 1969 Vienna Convention. Indeed,it hoped that the present Conference would be in aposition to adopt, mutatis mutandis, a solution similarto that of the 1969 Convention.

18. Her delegation viewed the amendments of theUnited Nations and of the eight Powers with sympathy.The latter proposal had the merit of clarity, practicalityand completeness, and therefore deserved serious con-sideration. The amendment of three Powers largelyretained the wording of the International Law Commis-sion's draft, except that it required the express consentof the parties for submission of a dispute to arbitration.In view of the special nature of the rules of jus cogens,that amendment might not meet with universal accept-ance.

19. With regard to the annex, the text of the Interna-tional Law Commission's draft incorporated the cor-responding provisions of the 1969 Vienna Conventionand also had the merit of simplicity. It might be im-proved by incorporating the relevant amendmentsproposed by the Soviet Union and the European Eco-nomic Community. Those amendments, together withthe amendment proposed by the Netherlands, whichprovided clarification, could be sent to the DraftingCommittee for consideration.

20. Mr. MUTZELBURG (Federal Republic of Ger-many) said that his delegation wished to refer to thespecific problems related to the effect of jus cogens. Hisdelegation was one of those which believed that thenotion of peremptory norms called for specially effec-tive procedural safeguards owing to the radical natureof its consequences, the relative scarcity of fully con-clusive precedents and the developments that article 64appeared to foreshadow. Jus cogens bound not only theparties to a treaty, but the international community as awhole. In the view of his delegation, there was a needfor a single mechanism to safeguard and guarantee theconsistency and uniformity that was required for legalcertainty.

21. Moreover, decisions produced through such amechanism would have to be representative of the in-ternational community as a whole and reflect the mainforms of civilization and the world's principal legalsystems. Additional requirements were the highest pos-sible legal competence, independence and internationalauthority of the organ concerned and its members.Probably the only organ meeting such requirementswas the International Court of Justice. His delegationtherefore deemed it essential to give the InternationalCourt a primary role in questions involving juscogens, as had been done in the case of the 1969 Vienna


Convention. Other procedures such as binding arbi-tration would have only a subsidiary function wherethe International Court of Justice was precluded fromacting.22. He believed it should be made clear that any de-cision by arbitration would be binding only on the par-ties to the dispute and only in respect of the specificcase. The procedural problem relating to the right ofparties to bring cases before the International Court ofJustice could, he felt, be overcome, and in any caseshould not be used as an excuse for departing from thecompromise solution adopted in the 1969 Vienna Con-vention for reasons unrelated to the specific subject ofthe draft instrument under discussion. In his view, thebest means of overcoming the problem were containedin the precise proposal of the eight Powers, which spe-cifically listed the various possibilities of involving theInternational Court, depending on the nature of theparties to the dispute. His delegation fully supportedthat amendment. It also saw merit in the United Na-tions amendment, which, although formulated in moregeneral terms, also gave the International Court of Jus-tice a primary role.23. It considered that the amendments of the Euro-pean Economic Community and the Netherlands, al-though making no change of substance, helped to clar-ify the text. They might therefore be referred to theDrafting Committee.24. Mr. ULLRICH (German Democratic Republic),noting that the position with regard to the issue in arti-cle 66 had been the same at the three preceding codifica-tion conferences, said that it was essential to arrive at acompromise acceptable to all participants in the presentConference. He made that statement on the assumptionthat all States and all international organizations wererequired to settle their international disputes exclu-sively by peaceful means and in accordance with theprinciple of free choice of means implicit in Article 33 ofthe Charter of the United Nations. A provision to thateffect was contained in paragraph 3 of article 65. Inview of the complexity of the disputes that could ariseunder part V of the draft convention, his delegation wasprepared to accept the idea underlying article 66 whichprovided for possible solutions in the event that at-tempts to settle the dispute under article 65, para-graph 3, failed.

25. While his delegation favoured a compulsory con-ciliation procedure for part V of the draft convention, itwas unable, in the light of its experience at variouscodification conferences, to support subparagraph (a)of article 66. It was also unable to support the amend-ments proposed by the United Nations and by the eightPowers. However, it fully supported the proposals ofthe Soviet Union, which were in conformity with in-ternational law and met the requirements of inter-national practice. His delegation also saw merit inthe three-Power amendment, which could perhaps becombined with the Soviet Union amendments. It there-fore considered that both those latter amendments andthe three-Power amendment could be referred to theDrafting Committee.

26. Mr. BARRETO (Portugal) said that in the matterof the peaceful settlement of disputes, his delegation

was in favour of an impartial third-party procedure thatwould produce a binding decision. It therefore con-sidered that the wording of article 66 should follow thecorresponding provisions of the 1969 Vienna Conven-tion as closely as possible. At the same time, it ap-preciated the difficulties with which the InternationalLaw Commission had been confronted because of thefact that an international organization could not submita dispute directly to the International Court of Justice.Portugal, for its part, had always upheld the role ofinternational judicial bodies, referring cases to the In-ternational Court where necessary, and had faithfullyimplemented the decisions of international courts. Hisdelegation therefore favoured the amendments pro-posed by the United Nations and by the eight Powers,which would strengthen the role of the judiciary in thesettlement of disputes, particularly where jus cogenswas involved. At the same time, conscious of the sen-sitive nature of the matters dealt with in article 66 and inthe annex, it thought it would be preferable if the Com-mittee, instead of adopting specific amendments, wereto concentrate on arriving at a consensus with a view tostrengthening the position of the future convention ininternational law.

27. Mr. MONNIER (Switzerland), speaking as asponsor of the eight-Power amendment, said that arti-cle 66 was a key provision in the convention. Thesettlement procedures for which it provided did notapply to all disputes arising out of the application andinterpretation of a treaty, but only to those that arosewhen one of the parties to a treaty wished to be releasedfrom it in one of the cases specified under part V of thedraft and the other party or parties did not agree. Onesuch case was when the validity of the treaty itself wasat issue. The draft articles provided for several groundsof nullity, including incompatibility of the treaty with aperemptory norm of general international law.

28. Although articles 53 and 64 were not at presentunder consideration, they could not be ignored. Theconcept of jus cogens was not universally accepted,and many States had serious reservations about it. Thatwas hardly surprising: the definition of jus cogens inarticle 53 was so vague and general that he wonderedwhether it was really possible to consider it a defini-tion at all. The practice with regard to jus cogens wasat once scanty and uncertain; the examples given bythe authors were striking in their diversity and some-times in the contradictions they revealed. That impre-cise idea spread results of a radical nature, since anytreaty which conflicted with a relevant norm of juscogens was irremediably null.

29. The divergence of views regarding jus cogens atthe Vienna Conference on the Law of Treaties had beenovercome by a compromise solution under which theapplication of articles 53 and 64 was combined withcertain judicial guarantees. The object of that com-promise had been to ensure, in so far as possible, thesecurity of treaty relations between States. He won-dered whether the present Conference could not adoptthe same approach.

30. Despite possible differences between states andinternational organizations, the inclusion in the presentdraft articles of provisions corresponding exactly to


articles 53 and 64 of the 1969 Vienna Convention logi-cally called for a similar r6gime, that is a control con-forming to the law of the application of those two ar-ticles.

31. The International Law Commission had adopted astandard solution, namely, unilateral recourse to ar-bitration. That solution could, however, be improvedupon, bearing in mind that the regime laid down atVienna in 1969 provided in the first instance for re-course to the International Court of Justice. That wasprecisely the object of the eight-Power amendment.

32. In his delegation's view, the present situation wasexactly the same as the one with which the 1969 ViennaConference had been confronted and should thus bedealt with in a similar manner. His delegation couldtherefore not support the amendments of the SovietUnion and of the three Powers, which did not offersufficient guarantees since, under their terms, the sub-mission of a dispute to arbitration would be optional.The United Nations amendment followed the samelines as the proposal of the eight Powers as far assubstance was concerned but, as worded, he felt that itwas still hedged about with too many reservations.

33. Mr. BERMAN (United Kingdom) said that it wasa mystery to his delegation why those who stronglyopposed the very idea of States voluntarily acceptingthe discipline of third-party dispute settlement proce-dures should pursue their campaign unabated even intothe area of the law of treaties. Surely, it was in that areaabove all that it should be easiest to admit the idea of theimpartial third party who decided on the basis of whatthe parties themselves had agreed. His delegation hadalso been surprised at certain references to the ManilaDeclaration on the Peaceful Settlement of InternationalDisputes which, whatever else might be said about it,did advise States to adopt a positive approach towardsprocedures for the peaceful settlement of disputes, in-cluding recourse to the International Court of Justice.

34. In its work, the present Conference, unlike pre-vious codification conferences, was not starting with aclean slate but was urged to use as a basis the regime ofthe 1969 Vienna Convention. The articles on settlementof disputes occupied a very special place in the rdgimeof that Convention, and indeed, the whole success orfailure of the 1969 Conference had hinged on the de-cisions on that vital question. At the very last momentin 1969, a group of 10 countries had come up with asatisfactory compromise and the door had thus beenopened for approval of the Vienna Convention. It wason that basis that the United Kingdom had voted infavour of, and was now a party to, that Convention.

35. The present Conference, in considering part V ofthe draft articles, dealing with invalidity and termina-tion of treaties, was entering on sensitive ground of ahighly political nature. In that connection he drew at-tention to the fact that his country had been able toaccept part V of the 1969 Vienna Convention, includingthe jus cogens provisions which continued to cause itserious problems, only in return for a solid guaranteeof a binding settlement-of-disputes procedure in arti-cle66. That was the arrangement known as the "Viennapackage deal".

36. The fact that the General Assembly had not re-commended the major substantive draft articles on in-validity and termination of treaties for inclusion in thelist of draft articles for substantive negotiation at thepresent Conference was perhaps a gentle indicationthat the Conference should adopt a similar approach indealing with the settlement of disputes.

37. The question now was whether the Conferencewas prepared again to apply the "package deal". If so,its task was easy, and all that was needed was to adaptthe International Law Commission's draft to make itcorrespond to the regime agreed upon in article 66 of the1969 Vienna Convention. The United Kingdom wouldjudge the attitude of other participants in the Con-ference on the basis of their willingness to accept asimilar compromise. There were, of course, proceduralproblems of judicial settlement, but they could alwaysbe overcome by suitable drafting. Any attempt to useprocedural problems as a means of undermining thesubstance of the political agreement reached in Viennain 1969 must, however, be rejected. His delegation, forinstance, rejected absolutely the proposition that, be-cause the subject-matter of the Conference involveddifferent subjects of international law, that would jus-tify placing them on a different plane in relation tosettlement of disputes. If it were accepted that a Stateand an international organization were validly party to atreaty, with the mutual rights and obligations flowingtherefrom, surely it could only follow, in law and inequity, that, if one of those parties claimed the treaty tobe invalid as against the other, its rights could be nogreater and no less than if the claim came from the otherside.

38. Turning to the amendments before the Commit-tee, he said that his delegation fully supported the eight-Power amendment, which was in keeping with the spiritof the 1969 agreement and adapted that agreement tothe circumstances of the present case. While his delega-tion was in sympathy with the United Nations amend-ment, which went in the same direction, it found thatthat text failed to deal with procedural details and wasmarred by square brackets and alternative formula-tions. The three-Power amendment did not have hisdelegation's support despite the Chinese representa-tive's sympathetic introduction at the 24th meeting.It veered sharply away from the 1969 agreement byreverting to a conception which, in the final analysis,provided a State such as the United Kingdom with nojudicial guarantee but only a general hope that the otherparty might, in a particular case, agree to an acceptableprocedure. He was quite unable to agree that the pro-posal corresponded to article 66 of the 1969 ViennaConvention, since it differed from it on an essentialpoint. The Soviet amendments were so far removedfrom anything possibly acceptable that he could onlyassume that they had been tabled for purely tacticalreasons. His delegation could, however, support theEuropean Economic Community amendment and theNetherlands amendment, both of which related tothe annex and were largely of a technical character.

39. Article 66 occupied a vital place in the wholestructure of the convention and went even more deeplyinto the whole question of good faith in negotiations.


He trusted that it would be possible to reach generalagreement on a text that reflected the agreementreached in 1969 and that would also be in accordancewith the terms of the 1969 Vienna Convention.

40. Mr. NAGY (Hungary) said that, while disagree-ment over dispute settlement procedures had a longhistory, a dispute between an international organiza-tion and another international organization or a Statewas a new element. In that connection, he would liketo know whether his delegation was correct in under-standing that disputes over articles 53 and 64 betweenStates inter se would fall under the 1969 Vienna Con-vention if all parties to the dispute were parties to thatConvention but would fall under customary interna-tional law if one of them was not. That interpretationwas based on the idea underlying the Italian proposal tointroduce a new article readi ng' 'The relations of Statesas between themselves shall not be affected by thepresent Convention" (A/CONF.129/C.1/L.42).

41. Assuming that the Conference adopted that idea,it would only be necessary to consider whether arti-cle 66, subparagraph (a), provided an adequate methodof settlement of a dispute between an internationalorganization and another international organizationor a State. The probability of such a dispute was, ofcourse, very slight, for it was unlikely that an inter-national organization would conclude a treaty in viola-tion of a peremptory norm of international law; thatwould happen only if the States members of the organ-ization concerned permitted it to happen. That was thesituation provided for by article 53.

42. From the rule laid down in article 64 it was ap-parent that the emergence of a new peremptory norm ofgeneral international law could give rise to the termina-tion of a treaty concluded by the organization. In such acase, it was scarcely conceivable that an internationalorganization would deny the effect of the new peremp-tory norm, since the States members of an organizationalways exercised control over it.

43. The fact that article 53 had been referred to theDrafting Committee without any substantial debate wasindicative of agreement in the Conference that the for-mulation and recognition of norms of jus cogens fellwithin the exclusive purview of States. Agreement onthat point was also reflected in the wording of article 53.A decision that a treaty was in conflict with a peremp-tory norm of general international law must thereforereflect the opinion of the international community ofStates as a whole.

44. The question which then arose was whether thearbitral procedure provided for in article 66 satisfiedthat requirement; in his delegation's view, it did not.Under article 66 and the annex thereto, a separatearbitration tribunal would be appointed in each case,with the highly undesirable result that substantiallysimilar cases would be decided differently by a multi-plicity of tribunals. There would thus be a high risk ofconflicting judgements concerning the content of pe-remptory norms, and much confusion would ensue. Forthose reasons, his delegation was unable to accept theInternational Law Commission's draft on arbitration.

45. There were, in its view, two possibilities. The firstwas to leave aside disputes regarding jus cogens be-tween States and international organizations and tolimit the conciliation procedure to other situations en-visaged in part V of the draft articles. While that wouldbe logical, there would then be a lacuna, since disputesconcerning articles 53 and 64 would not be covered bythe dispute settlement procedure provided for in theconvention. His delegation therefore proposed that thecompetence of the proposed conciliation commissionshould be extended to cover such disputes; that wouldalso simplify matters, as there would then be a singleprocedure for the whole of part V.46. It would help to pinpoint the problems involved ifconciliation commissions were permitted to considermatters of jus cogens. Although the decisions wouldnot be binding on the parties to the conflict, the way inwhich the commissions functioned would demonstratewhether any third-party dispute settlement procedurewould contribute to the uniform treatment of juscogens.47. In the light of those points, his delegation sup-ported the two amendments proposed by the SovietUnion, on the understanding that the necessary draftingchanges in subparagraph (£>) of article 66 would be madeby the Drafting Committee. If, however, those amend-ments were unacceptable to the Committee, his delega-tion would not object to the three-Power amendment. Itcould also accept the amendments proposed by theEuropean Economic Community and the Netherlands,but not those by the United Nations and the eightPowers.

48. Mr. ABED (Tunisia) recalled that his country hadacceded to the 1969 Vienna Convention with a reserva-tion on article 66, subparagraph (a), as it consideredthat a dispute should be submitted to the InternationalCourt of Justice only with the express consent of theparties to the dispute. It held the same view in con-nection with article 66 of the present convention. Hisdelegation was therefore unable to support the eight-Power amendment, which was silent on the need forexpress agreement between the parties to submit adispute to the International Court of Justice and whichwould make that Court's advisory opinion binding forall the parties to the dispute. That amendment mightalso result in differentiation between the treatment ofStates and that of international organizations, for pro-cedural difficulties might arise in deciding whether acase should be dealt with on a legal or on a conciliationbasis.

49. The United Nations amendment offered some im-provement by suggesting that the International Court ofJustice should be asked to give an advisory opinion.Unfortunately, should the opinion prove impossible toobtain, the dispute would, for reasons which were notentirely clear, be submitted to arbitration without theexpress consent of all the parties, merely at the re-quest of one party. The Tunisian delegation could notapprove that amendment, nor, for the same reasons,could it approve the amendment proposed by theEuropean Economic Community.

50. The Soviet Union amendment to article 66 fol-lowed the recognized principle of international law that


international disputes should be settled on the basis ofthe sovereign equality of States and with free choice ofsettlement procedures. However, the Tunisian delega-tion was unwilling to sacrifice subparagraph (a) of arti-cle 66. It believed that arbitration should be retained asan effective means for the peaceful settlement of dis-putes if the parties concerned so decided and wished.

51. That result could be achieved if the InternationalLaw Commission's draft was retained, as modified bythe three-Power amendment. Compulsory arbitrationwas likely to hinder the settlement of disputes and wastherefore not in the interest of international peace andsecurity.

52. Mr. KOURULA (Finland) said that the rules inpart V were one of the basic requirements for a reason-able and useful application of the future convention.His delegation therefore wished to stress the impor-tance of the procedural rules to be applied when even asingle party claimed that a treaty was ineffective oralleged reasons for the nullity or termination or suspen-sion of the instrument. A treaty should remain in forceuntil settlement of all disputes concerning its ineffec-tiveness or termination. Despite the compromise pro-visions of article 64, it would be regrettable if disputesconcerning the content and interpretation of jus cogenscould not be submitted to the International Court ofJustice, as they could under the 1969 Vienna Conven-tion. The text of article 66 should therefore be harmo-nized as far as possible with article 66 of that Con-vention.

53. His delegation fully supported the eight-Poweramendment, as it considered that the question of iden-tifying and interpreting peremptory norms should besettled by the International Court of Justice and not bythe parties to a dispute. Admittedly, the Court's juris-diction was not binding; in practice, however, and assome delegations had pointed out, one way of settlingdisputes would be for the parties to accept in advancethat an advisory opinion of the Court would be con-clusive. In his view, international law should develop,and not merely maintain, human ideas of justice. Onlyif the settlement of disputes was compulsory wouldsmaller nations have equal possibilities of applying thenew convention.

54. However, in view of the reluctance of some del-egations to accept such an advance agreement pro-cedure, the Finnish delegation was prepared to sup-port the text of the International Law Commission'sdraft as amended, though unclearly, by the United Na-tions proposal. In any case, and as had previously beenstated, every effort should be made to rely on the sameforum for the resolution of issues concerning^MJ cogensand arising under the 1969 Vienna Convention or underany future instrument based on the present draft con-vention.

55. The Finnish delegation could also support theamendment submitted by the European EconomicCommunity and by the Netherlands. With regard to thepossibility of controversies arising from the applicationand interpretation of any future convention, questionsof that nature were typical legal issues which, underArticle 36, paragraph 3, of the Charter of the United

Nations, should as a general rule be referred by theparties to the International Court of Justice.

56. There were of course many treaties that lackedbinding provisions for the settlement of disputes arisingfrom their application and interpretation. However, thepresent draft convention was of a constitutional charac-ter, and disputes about its application and interpreta-tion were of a legal nature, and should therefore besettled through legal machinery.

57. Mr. SANYAOLU (Nigeria) said that while thedraft convention avoided the risk of double treaty r6-gimes by proposing arbitration for the settlement ofdisputes arising under articles 53 and 64 and a concilia-tion procedure for disputes arising under other articlesin part V, in parallel with the 1969 Vienna Convention,the principle of the equality of States and internationalorganizations with regard to their rights and obligationsas parties to a dispute had not been justified. The Inter-national Law Commission had referred to that questionat the end of paragraph (2) of its commentary to arti-cle 66 (see A/CONF. 129/4). His delegation felt thatthe Commission's observation was also applicable tointernational organizations in the case of the proposednew convention. There were compelling reasons forgranting international organizations means of access tothe International Court of Justice, even though theycould not be parties to cases before that body.

58. His delegation welcomed the wording proposed insubparagraph 2 (b) of the eight-Power amendment.Proposals of that nature might contain imperfectionsand uncertainties, but that consideration should notprevent their acceptance, as those difficulties wouldprobably be resolved in the course of time. The amend-ment of the United Nations was very similar to theeight-Power proposal and added little that was new inthe paragraph (c) it proposed. Finally, the introductionof the term "express consent" in subparagraph (a) ofthe three-Power amendment eliminated the notion ofmandatory arbitration, something his delegation con-sidered essential in a convention providing for a meansof settlement of disputes concerning the application orinterpretation of a rule of jus cogens.

59. Mr. NEGREIROS (Peru) said that article 66 ap-peared to supplement article 65. However, the latterarticle seemed comprehensive enough on its own, itsparagraph 3 clearly specifying the means to be used,while its other paragraphs indicated the procedure to befollowed. A further article on the same subject mightgive rise to conflict.

60. Article 66 went beyond proposing ways andmeans, and sought to make arbitration—a widely usedinternational instrument—a compulsory procedure.Subparagraph (a) of article 66 provided alternativemachinery in the event of parties to the Conventionbeing unable to resort to the International Court ofJustice. However, its main disadvantage was that anyone of the parties to a dispute—for example, an inter-national organization—might of its own motion insti-tute a procedure leading in the end to an arbitral de-cision binding on the other party, which might be aState. Compulsory arbitration was far from accepted bymany States, and could not conceivably be applied to


such a case involving an international organization anda State.61. The aim of arbitration was to settle disputes be-tween States through the intervention of judges ap-pointed by States on the basis of respect for the law.Arbitration therefore was legal in character, for it in-volved impartial application of rules of law making itbinding on both parties. However, the compulsory na-ture arose from the parties to a dispute agreeing tosubmit it to arbitration, in other words, from a formalact of consent in which two or more parties agreed tosubmit to arbitration. They defined the dispute, ap-pointed the umpire and determined his powers and theprocedure to be followed. Should the arbitration com-mitment be of a general nature, a special treaty wasdrawn up, such as the Pact of Bogota in Latin America.Article 66, subparagraph (a), of the 1969 Vienna Con-vention thus clearly stated that the parties may "bycommon consent agree to submit the dispute to arbi-tration".

62. The Peruvian delegation was therefore unable tosupport the draft of article 66 proposed by the Inter-national Law Commission. It found the amendmentproposed by the Soviet Union quite appropriate.However, if that amendment was not approved, it wasprepared to support the amendment proposed by Al-geria, China and Tunisia.63. Mr. RODRIGUEZ CEDENO (Venezuela) saidthat article 66 presented a number of difficulties for hisdelegation. It provided first of all for compulsory ar-bitration, a solution which, although appearing ideal,posed serious problems for many States. Making arbi-tration compulsory ran counter to the recognized prin-ciple of parties to a dispute being free to choose theprocedure for settling it. The International Court ofJustice had repeatedly upheld the principle that Statesshould not be compelled to submit their disputes withother States to mediation or arbitration or other formsof peaceful settlement without their consent. The pro-cedure set out in article 65, paragraph 3, was suffi-cient and guaranteed stability of legal relations, since itexpressly referred to Article 33 of the Charter of theUnited Nations. The question of peremptory normswas of course most important, but disputes involvingthem should not be considered solely in a legal context,for international practice and the operation and effec-tiveness of other procedures would then be weakened.

64. There was no need to prejudge the effectiveness ofthe means of settlement referred to in Article 33, para-graph 1, of the Charter of the United Nations, par-ticularly since respect for treaties was based on theprinciple of pacta sunt servanda and of implementationin good faith.65. The participation of international organizationsmarked a substantial divergence from the situationwhich had existed when the 1969 Vienna Conventionhad been drawn up. Arbitration could not be unilateral,but had to be entered into with the consent of all theparties to the dispute, whether States or internationalorganizations. The Venezuelan delegation thereforesupported the amendment proposed by the SovietUnion in document A/CONF.129/C.1/L.60. However,should the majority in the Committee favour retention

of a supplementary provision, his delegation wouldsupport the three-Power amendment.66. With regard to subparagraph (b) of article 66, theVenezuelan delegation considered that, as in the case ofsubparagraph (a), compulsion was unsatisfactory.67. Mr. KADIRI (Morocco) said that the 1969 ViennaConvention, which constituted the basic framework forthe present Conference, had almost come to nothing onthe point at present under discussion and had beenrescued only by a last-minute compromise. The Inter-national Law Commission had encountered a majorobstacle in its work on the present draft text in en-deavouring to establish a rdgime providing equal facil-ity of access for States and international organizations.It had resolved the problem by proceeding along thelines indicated by article 15 of annex VI of the UnitedNations Convention on the Law of the Sea,2 whichoffered arbitration procedures for cases arising underthe present articles 53 and 64. One of the merits of thework done by the International Law Commission in thepresent instance was that it would facilitate adoptionof the proposed convention incorporating the presentdraft article 66 by a maximum number of States, in-cluding those which had been unable to accept theentire text of the 1969 Vienna Convention because ofthe scope of its articles relating to jus cogens.

68. The Moroccan delegation was therefore inclinedto approve the Commission's text as it stood. Withregard to the amendments before the Committee, theSoviet Union proposal was in its view irrelevant, be-cause it would create an unbalanced situation andbecause it would eliminate arbitration. His delegationsupported the United Nations amendment calling foraddition of a subparagraph (c) making recourse to theInternational Court of Justice compulsory. The eight-Power amendment seemed to derogate very consider-ably from the 1969 Vienna Convention in referring tothe International Court of Justice instead of to the ar-bitration mentioned by the International Law Commis-sion, and seeking to provide a special arrangement forInternational organizations. His delegation supportedarticle 66, but was willing to help to improve it.

69. Ms. MORGENSTERN (International LabourOrganisation) said that her organization would have aspecific difficulty with subparagraph 2 (b) of the eight-Power amendment. Paragraph 2 as a whole provided forfour different situations. The first, that of a disputebetween one or more States Members of the UnitedNations, would find a natural forum in United Na-tions organs. The second, that of a dispute between oneor more States members of an organization not havingauthorization to request advisory opinions from theInternational Court of Justice, had its only possibleforum in United Nations organs. A dispute between oneor more States and several organizations could ap-propriately be submitted to United Nations organs asthe only ones with a general capacity to request ad-visory opinions of the International Court of Justice.However, in a fourth situation, namely, that of a dis-

2 Official Records of the Third United Nations Conference on theLaw of the Sea, vol. XVII (United Nations publication, SalesNo. E.84.V.3), document A/CONF.62/122.


pute between one or more States and a single inter-national organization authorized to seek advisory opin-ions from the International Court, the recourse toUnited Nations organs was not self-evident. The rea-sons for not allowing the States in such a case to go tothe international organization were not self-evident. Atext of that nature might cause particular difficulties foran organization such as the one she represented, whoseorgans differed greatly in composition from those of theUnited Nations and which often tended to be particu-larly sensitive to any encroachment on their positions.

It would therefore be very difficult for the InternationalLabour Organisation to accept that, in any dispute be-tween itself and States, United Nations organs wouldnecessarily have to decide whether the InternationalCourt of Justice should be requested to give an advisoryopinion and what the terms of the request should be.The problem might be solved if the Committee couldensure that the provisions relating to advisory opinionswere formulated a little less precisely.


27th meetingWednesday, 12 March 1986, at 4.05 p.m.





Statement by the President of the Conference on arti-cles 2, 5, 6, 11, 19, 20, 27, 35 to 37, 39 and 65

1. The CHAIRMAN invited the President of the Con-ference to make a statement to the Committee on con-sultations relating to various articles which had beenheld under his chairmanship among delegations, and tointroduce the new texts of articles 2 and 5 which hadbeen worked out in the framework of those consul-tations.

2. Mr. ZEMANEK (Austria), President of the Con-ference, said that the consultations had resulted inproposed new texts for articles 2 and 5, reproducedin document A/CONF. 129/C. 1/L. 70, and had led toagreement among delegations on aspects of articles 11,19, 20 and 27. It had also been agreed in principle thata change would be made in the wording of articles 5, 6,35 to 37, 39 and 65.

3. With regard to article 2, the consultations had leftthe International Law Commission's text substantiallythe same as before. One of the changes concernedsubparagraphs 1 (c) and 1 (c bis), where the distinctionbetween "full powers" and "powers" had been elimi-nated, leaving a single definition of the term "fullpowers" as the new subparagraph 1 (c).

4. Subparagraph 1 (/). which defined the term "rulesof the organization", had been an important issue in thenegotiations because it gave rise to several problems.

The text now proposed had been agreed to by certaindelegations on the clear understanding that the ideasexpressed by them during the negotiations with regardto the notion of established practice would be reflectedin another part of the future convention, such as thepreamble.5. In article 5, the title had been placed betweensquare brackets because the new wording of the articlemight require the Drafting Committee to alter the title.6. As far as article 27, paragraph 2 was concerned,the United Nations had agreed not to insist on its pro-posal (A/CONF. 129/C. 1/L.37). Delegations had agreedto refer the International Law Commission's text forthat provision to the Drafting Committee on the un-derstanding that the idea contained in the amend-ment to the paragraph proposed by the Soviet Union(A/CONF. 129/C. 1/L.39) would be reflected elsewherein the convention, for instance, in the preamble.

7. Delegations had also agreed in the negotiations thatthe Committee of the Whole should refer the Commis-sion's text of article 11, paragraph 2, article 19, para-graph 2, and article 20 to the Drafting Committee, sub-ject to the possibility for the Committee of the Wholeto adopt additional language based on the amendmentsin documents A/CONF.129/C.1/L.12, L.34 (para. 2),L.38, L.40 and L.41. The sponsors of those proposalshad agreed that the ideas contained in their amend-ments should be reflected elsewhere in the future con-vention, possibly in the preamble.8. Lastly, it had been agreed in principle during thenegotiations that the word "relevant" should be de-leted before the word "rules" in articles 5 and 6, arti-cle 35, paragraph 2, article 36, paragraph 2, article 37,paragraph 5, article 39, paragraph 2, and article 65,paragraph 4, on the understanding that if the DraftingCommittee decided that the adjective "relevant"should be restored in any of those provisions it shouldmake a recommendation to that effect to the Committeeof the Whole. As far as article 5 was concerned, the textproposed in document A/CONF. 129/C. 1/L.70 alreadyreflected the agreement to delete the word "relevant".


9. The CHAIRMAN said that the Committee shouldtake formal decisions on the points which delegationshad settled in the negotiations.

Article 2 (Use of terms) (concluded)*

10. The CHAIRMAN said that, if there were no fur-ther comments, he would take it that the Committeeadopted article 2 as proposed in document A/CONF.129/C.1/L.70 and referred it to the Drafting Committee.

It was so decided.11. Mr. HERRON (Australia) explained the views ofhis delegation with regard to the wording adopted bythe Committee for article 2, subparagraph 1 (h). Herecalled that the International Law Commission hadpointed out in its commentary to article 36 bis thatan international organization was not a third partywith respect to its own constituent instrument (seeA/CONF. 129/4, footnote 105). In the consultationsmentioned by the President of the Conference, his del-egation had referred to that opinion and had saidthat the definition of "third organization" in subpara-graph 1 (h) did not express the Commission's view in anobvious manner. It had been agreed in the consultationsthat the definition should not be altered, as his delega-tion had suggested, so as to bring that point put, but thatthe common intention was that an international organ-ization should not be regarded as a third organization inrespect of its own constitutent instrument.

12. In view ofthat indication of common intention, hisdelegation had accepted unchanged the wording of sub-paragraph 1 (h) of article 2, which the Committee hadjust adopted. It agreed to that wording on the under-standing that an international organization was not, interms of subparagraph 1 (A), a "third organization" forthe purposes of the draft convention; and that, con-sequently, article 34 would not prevent rights and obli-gations arising for an international organization underits own constituent instrument. His delegation under-stood its position to be very widely shared by otherdelegations.

Article 5 (Treaties constituting international organiza-tions and treaties adopted within an internationalorganization) (concluded)**

13. The CHAIRMAN said that, if there was no objec-tion, he would take it that the Committee adopted arti-cle 5 as proposed in document A/CONF. 129/C.1/L.70and referred it to the Drafting Committee.

It was so decided.

Article II (Means of expressing consent to be bound bya treaty) (paragraph 2) (concluded)***

Article 19 (Formulation of reservations) (paragraph 2)(concluded)****

Article 20 (Acceptance of and objection to reserva-tions) (concluded)*****

Resumed from the 4th meeting.* Resumed from the 6th meeting.** Resumed from the 11th meeting.**• Resumed from the 12th meeting.**** Resumed from the 14th meeting.

Article 27 (Internal law of States, rules of internationalorganizations and observance of treaties) (para-graph 2) (concluded)*

14. The CHAIRMAN said that, if there was no objec-tion, he would take it that the Committee adopted theInternational Law Commission's texts of article 11,paragraph 2, article 19, paragraph 2, article 20 andarticle 27, paragraph 2, and referred them to theDrafting Committee, on the understanding that theideas contained in the amendments proposed by theGerman Democratic Republic (A/CONF. 129/C. 1/L. 12,L.40, L.41), Cape Verde (A/CONF. 129/C. 1/L.34) andthe Soviet Union (A/CONF. 129/C. 1/L.38, L.39) wouldbe reflected elsewhere in the future convention, forexample, in the preamble.

// was so decided.

Proposed deletion of the word "relevant" in articles 5,6, 35 to 37, 39 and 65

15. The CHAIRMAN said that, if there was no objec-tion, he would take it that the Committee agreed inprinciple to delete the word "relevant" before the word"rules" in articles 5 and 6, and in paragraph 2 of arti-cle 35, paragraph 2 of article 36, paragraph 5 of arti-cle 37, paragraph 2 of article 39 and paragraph 4 ofarticle 65, on the understanding that if the DraftingCommittee found the need to restore the adjective "rel-evant" in any of those provisions it should make arecommendation to the Committee of the Whole to thateffect; and further that the Committee agreed to in-struct the Drafting Committee accordingly.

It was so decided.16. Mr. KORONTZIS (Greece) said that he wished toreserve his delegation's position until it saw the finaltext produced by the Drafting Committee.


Annex (Arbitration and conciliation procedures estab-lished in application of article 66) (continued)

17. Mr. CANCADO TRINDADE (Brazil) said thatthe whole chapter of international law on the peacefulsettlement of international disputes was marked by theambivalence between, on the one hand, the generalduty of contending parties to settle disputes peacefullyand, on the other, the ligitants' freedom of choice of theappropriate means of peaceful settlement. As a matterof principle, his own delegation did not favour man-datory application of third-party, binding proceduresfor the settlement of disputes. However, in the par-ticular case of jus cogens it was prepared to accept amore flexible approach, since disputes concerning theexistence of peremptory norms of international lawwere too important for conciliation to be taken as theonly procedure for their settlement.

18. His delegation supported the generally acceptedconcept of jus cogens at the present Conference, as ithad done at the 1968-69 Vienna Conference on the Lawof Treaties. It regarded^ cogens as incompatible with



the voluntarist conception of international law, becausethat conception failed to explain the formation of rulesof general international law. Jus cogens was, in itsview, a concept in evolution, as had been recognized indraft article 64, and the progressive determination of itscontent was left to the international practice of Statesand international organizations, to general multilateraltreaties, to case law and to legal opinion.19. The mechanism for settling disputes embodied inarticle 66 of the 1969 Vienna Convention on the Law ofTreaties' was meant to be viewed within a wider scale ofvalues than the traditional disputes settlement proce-dures. A difficulty arose, however, in the case of thepresent draft because of the limitation imposed in Arti-cle 34, paragraph 1, of the Statute of the InternationalCourt of Justice, which specified that only States couldbe parties in cases before the Court. In that connec-tion, his delegation appreciated the efforts of the spon-sors of the eight-Power amendment (A/CONF. 129/C. 1/L.69/Rev.l).20. While the International Court of Justice in its ad-visory opinions—for example, in the Reparation forInjuries case of 19492and in the Namibia case of 197P—had made significant contributions to the developmentof international law, its advisory jurisdiction had inrecent years served more for settling internal problemsof intergovernmental organizations than as a mechan-ism for settling disputes between States and other en-tities. Admittedly that trend could be reversed, andsuggestions had been made recently for broadening orenhancing the Court's advisory jurisdiction. Those sug-gestions were still under consideration. Moreover, itwas worth noting that the sponsors of two of the amend-ments before the Committee, (A/CONF. 129/C. 1/L.66and L.69/Rev. 1) had made an effort to avoid the risk ofadvisory opinions being regarded as purely recommen-datory in a dispute relating to jus cogens.21. In his delegation's view, the text of article 66proposed by the International Law Commission had themerit of maintaining the separate treatment of disputesconcerning allegations of conflict between the provi-sions of a treaty and a peremptory norm of internationallaw and of adopting, for those particular disputes, onesingle procedure, namely, that of arbitration, to be ap-plied both to States and to international organizations.

22. His delegation was giving careful consideration tothe amendment proposed by China, Algeria and Tunisia(A/CONF. 129/C. 1/L.68). It felt, however, that somedegree of flexibility was necessary if a consensus for-mula was to be arrived at. In its view, it was necessary,in deciding on appropriate dispute-settlement proce-dures in the present context, to recognize that the infil-tration of an evolving system of values, of a universallyacceptable minimum, into positive law was desirable


2 See Reparation for injuries suffered in the service of the UnitedNations, Advisory Opinion: I.C.J. Reports, 1949, p. 174.

' See Legal Consequences for States of the Continued Presenceof South Africa in Namibia (South West Africa) notwithstandingSecurity Council Resolution 276 (1970), Advisory Opinion, I.C.J.Reports, 1971, p. 16.

and that the concept of an international legal systemwas not a voluntary but a necessary one. That impliedthat, in the particular context of jus cogens, the treat-ment of dispute-settlement was closely linked to thework of codification itself. His delegation also tooknote, however, of the arguments of those who, even inthat specific context, felt that the question of dispute-settlement should retain its autonomous character. Ittherefore reserved its position on the point under dis-cussion for the present, in the hope that a compromisesolution might be found.

23. Mr. KORONTZIS (Greece) said that procedurefor the settlement of disputes, particularly where juscogens was involved, was a key element of the draftconvention. His delegation warmly commended theeight-Power amendment to article 66 and endorsed thestatements which had been made by the representativesof Japan and Austria (24th meeting) and the UnitedKingdom (26th meeting). To provide for recourse byStates to the International Court of Justice, especiallyin disputes concerning the application or interpretationof articles 53 and 64, was to bring the provisions of thepresent draft more closely into line with those of the1969 Vienna Convention to add a further element oflegal security and undoubtedly to enhance the authorityof the present convention. His delegation could notsupport any amendment which did not give such secu-rity.

24. The provisions of subparagraphs (b), (c) and (d) ofparagraph 2 of the eight-Power amendment simply in-corporated in the draft convention a procedure alreadyprovided for in the Statute of the International Court ofJustice, while precedents for the provision in subpara-graph (e) that the advisory opinion of the Court shouldbe accepted as decisive were to be found in the Con-vention on the Privileges and Immunities of the UnitedNations (General Assembly resolution 22 (I), of 13 Feb-ruary 1946) and the Convention on the Privileges andImmunities of the Specialized Agencies (General As-sembly resolution 179 (II), of 21 November 1947). Inany case, it seemed hardly likely that, having agreed onsuch a procedure, the parties to a dispute would notaccept the opinion as decisive.

25. The eight-Power amendment also introduced acertain useful differentiation and flexibility, which wasbalanced by the additional security it provided withregard to the fundamental concept of jus cogens. Fur-thermore, by establishing a closer link with the 1969Vienna Convention it contributed to greater uniformityof procedure.

26. Mr. RASOOL (Pakistan) said that without a work-able and effective procedure for the settlement ofdisputes, rules, however categorically they wereexpressed, would remain meaningless. The basic objec-tive should always be peaceful and amicable settle-ment, with parties' free choice of means as a naturalcorollary. The provisions of article 66 would becomeoperative only when parties failed to agree on a pro-cedure to be followed in the case of dispute.

27. Subject to certain terms and conditions, Pakistanhad accepted the compulsory jurisdiction of the Inter-national Court of Justice. That commitment, together


with its belief in the sanctity of the principles enshrinedin articles 53 and 64 of the 1969 Vienna Convention, hadled his delegation to give particular support to arti-cle 66, subparagraph (a), of that instrument. It saw noreason why the provisions of the present draft should beless effective than those of that earlier Convention.28. Two points needed to be emphasized. The firstwas that the convention under consideration wouldgovern treaties—and disputes arising therefrom—towhich one or more international organizations might beparties. The second was that at present, and in theforeseeable future, international organizations couldnot become contentious parties before the InternationalCourt of Justice. For that reason the International LawCommission had proposed, in a departure from theprovisions of the 1969 Vienna Convention, an arbitra-tion procedure for dealing with disputes concerningyw.?cogens.29. The delegation of Pakistan appreciated the un-derlying difficulties, but it was less than fully satisfiedwith the Commission's methodology. Notwithstandingthe explanation in its commentary that disputes towhich only States were parties would be governed bythe provisions of the 1969 Vienna Convention, the in-dication in subparagraph (a) of article 66 that any partyto the dispute could set the arbitration procedure inmotion lacked clarity. More explicit drafting seemed tobe required.30. His delegation therefore viewed with interest andapproval the eight-Power amendment. While it sym-pathized with the general thrust of the United Nationsamendment, it was not satisfied with the idea of abinding advisory opinion, which certain legal systemswould contest.31. The amendment proposed by the European Eco-nomic Community (A/CONF.129/C.1/L.64) appearedto involve only a matter of drafting and might, he felt, bereferred to the Drafting Committee.32. As had already been pointed out, the Sovietamendment (A/CONF.129/C.1/L.60) seemed not toachieve the declared objective. It seemed not to rein-force the parties' free choice of means (which wasalready provided for), but rather to erode the necessarydistinction, established in the 1969 Vienna Conventionas well as in the present draft, between the rule of juscogens and the other principles of part V.33. As for the three-Power amendment, it retained thearbitration procedure in form, but at the same timeeliminated it as a compulsory procedure by making itsubject to express consent.34. In order to create consistency between internallaw and international obligations for the purposes ofratification and accession, it would be necessary to finda compromise solution to the present differences on thebinding character of an advisory opinion. The delega-tion of Pakistan was prepared to support any formulathat would both maintain the sanctity of the rule of juscogens and ensure wide acceptance of the draft con-vention.35. Mr. BERNHARD (Denmark) said that his coun-try had always held the view that, as far as pos-sible, States should create mechanisms for the effi-

cient settlement of disputes which could not be re-solved through negotiation. That implied mandatoryprocedures leading to binding decisions. It was difficultto see how such mechanisms could be in conflict withthe principle of the sovereign equality of States; on thecontrary, an efficient system for the settlement of dis-putes tended to protect weaker States on the basis ofinternational law.36. While article 66 met the criteria to which he hadreferred with regard to disputes concerning./^ cogens,it must be regarded as a retrograde provision in com-parison with the 1969 Vienna Convention. That, ofcourse, was partly due to the fact that internationalorganizations could not be parties to a dispute beforethe International Court of Justice. His delegationnevertheless considered it important to try to maintainthe influence of the Court in disputes concerning juscogens, more particularly because practice concerningsuch principles should be built up by a permanent andhighly qualified legal body such as the Court, whosebackground seemed clearly preferable to that of variousarbitral tribunals.

37. Those considerations led his delegation warmly toendorse the eight-Power amendment, which had themerit of seeking for the International Court of Justice arole which resembled as closely as possible, in thepresent context, that which it played in the 1969 ViennaConvention, and at the same time strengthening themandatory and binding elements in the settlement pro-cedure.38. The same reasoning led his delegation to view theamendment proposed by the United Nations with con-siderable sympathy. On the other hand, both the Sovietproposal and the three-Power amendment seemed—al-though to a somewhat differing degree—to be weaker incomparison both with the provisions of the 1969 ViennaConvention and with the mechanism proposed by theInternational Law Commission.39. Mr. ROMAN (Romania) said that his delegationwould have some difficulty in accepting the Interna-tional Law Commission's proposal that any party to adispute concerning the application or interpretation ofarticle 53 or article 64 might submit the dispute toarbitration. As many speakers had already pointed out,the proposal tended to substitute obligatory arbitrationfor voluntary arbitration. Furthermore, his delegationcould not, as a matter of principle, accept arbitration asa procedure in disputes involving peremptory norms ofgeneral international law (jus cogens), still less whensuch arbitration would not be subject to the commonagreement of the parties.40. Those considerations led his delegation to viewwith interest the Soviet proposal (A/CONF.129/C.1/L.60) calling for the deletion of subparagraph (a)of article 66 and the proposal to delete section II ofthe annex (A/CONF. 129/C. 1/L.61). While it supportedthose amendments, it was also open to any other pro-posals inspired by the same concerns and could there-fore also support the three-Power amendment. As analternative solution, the Commission's draft might beimproved, for example, by stipulating in subpara-graph (a) that the arbitration should be subject toagreement between the parties concerned, or by re-


moving from that paragraph the reference to article 53.Such modifications would, in the view of his delegation,result in a more balanced article likely to secure widersupport.41. For the reasons which he had already given, hisdelegation could support neither the United Nationsamendment nor the eight-Power amendment.42. Mr. SANG YONG PARK (Republic of Korea)said that, in his delegation's view, disputes involvingjus cogens should be settled by an impartial and effec-tive judicial procedure and that the International Courtof Justice was the proper organ for that purpose, irre-spective of the type of parties involved.

43. The present text of subparagraph (a) of article 66was reticent on recourse to the Court for a decision oradvisory opinion in the case of disputes arising from theapplication or the interpretation of articles 53 or 64. Thefact that it provided only for arbitration might wellconstitute a substantive weakness of the draft, and leadto the expression of serious reservations. His delega-tion considered that the statutory functions of the Courtshould be brought into play in such cases.

44. In stressing the role of the International Court inthe context of article 66, his delegation by no meansimplied that less importance should be attached to ar-bitration or conciliation procedures, or to other peace-ful means of settlement as stipulated in Article 33 of theCharter of the United Nations. It wi shed to reaffirm theRepublic of Korea's abiding commitment to the pacificsettlement of all disputes.

45. All the proposed amendments to article 66 and theannex deserved careful attention. His delegation sawparticular merit in those submitted by the United Na-tions and by eight countries. It hoped that, combined,they might serve as the basis of an acceptable text forarticle 66.

46. Mr. FOROUTAN (Islamic Republic of Iran) saidthat the provisions of draft article 66 quite clearly dif-fered from those of the 1969 Vienna Convention con-cerning the settlement of disputes arising from the ap-plication or interpretation of articles 53 and 64. Hisdelegation would have great difficulty in accepting thebinding conciliation procedure provided for in the draftin its present formulation. The draft failed to reflectpresent realities, inasmuch as certain special caseswere usually referred to arbitral tribunals.

47. Important disputes concerning,/*/.* cogens shouldbe referred, but only with the clear consent of theparties involved, to the highest judicial organ, ratherthan to an arbitral tribunal. International organizationsdid not have the authority to appear before the Inter-national Court of Justice, but it would be perfectlyjustifiable to provide a non-obligatory procedure underwhich the advisory opinion of the Court might be ob-tained in cases involving them. Freedom of choice toresort to any means of settlement, based on the consentof all parties in each case, was the basic and maincriterion.

48. During the deliberations on the subject in 1969,the delegation of his country had been among thosewhich had expressed dissatisfaction on the matter of

strict procedural safeguards, arguing that formulationsthat were suitable from the point of view of some coun-tries might cause certain difficulties for others. Thedeveloped Western countries already possessed ade-quate administrative machinery for dealing with thequestion of safeguards, whereas such machinery wasunfortunately lacking in many developing countries.Regrettably, the views expressed in 1969 by many del-egates from developing countries who had shared thesame concern had not been taken into consideration,and sufficient efforts had not been made to reach acompromise solution capable of securing wide support.The 1969 Vienna Convention had indeed been adopted,but reluctance to approve the compulsory provision inthe text of the draft new convention persisted at thepresent Conference. The issue was what was reallydesired: a universally accepted instrument, or merelyone that satisfied a small minority of States?

49. Turning to the various proposals before the Com-mittee, he found shortcomings in the Soviet amend-ment to article 66 in that it called for the deletion ofsubparagraph (a) of the article without providing for thenecessary change in subparagraph (b). His delegationcould accept the first part of the Soviet amendment tothe annex, but could not agree to the deletion of sec-tion II of the annex because it believed that the descrip-tion of procedure was always helpful for clarity andprecision.50. His delegation appreciated the clarification pro-vided in the amendment proposed by the EuropeanEconomic Community.

51. In connection with the United Nations amend-ment, his delegation considered that the InternationalCourt of Justice was the most suitable organ to give anadvisory opinion on an important legal matter. It wasnecessary, however, that the opinion be obtained withthe consent of the parties concerned. States were inmost cases willing to refer their disputes to the Court,but on a voluntary basis. While his delegation agreedwith the philosophy behind the United Nations pro-posal, it could not accept the latter, as it provided forthe same binding arbitration procedures as did the In-ternational Law Commission's text. Nor could it acceptsubparagraph (c) proposed in that amendment.

52. His delegation supported the three-Power amend-ment because it laid due emphasis on the key element ofconsent of the parties to the dispute, and despite theshortcoming that it did not offer recourse to the ad-visory opinion of the International Court of Justice asan option. The text of that amendment could, he be-lieved, be referred to the Drafting Committee.

53. Finally, his delegation acknowledged the effortsmade by the sponsors of the eight-Power proposal todeal with all the situations which might arise in connec-tion with arbitration and conciliation. For the reasonshe had mentioned earlier, however, it would have dif-ficulty in supporting that amendment.

54. Mr. DALTON (United States of America) saidthat, in his delegation's view, the text of the draft con-vention should follow as closely as possible the pro-visions of the 1969 Vienna Convention, which his Gov-ernment had signed and followed in its treaty practice.


It was from that perspective that his delegation ap-proached the proposals before the Committee.55. Under article 66 of the 1969 Vienna Convention,any State could bring before the International Court ofJustice a jus cogens dispute involving the applicationand interpretation of articles 53 and 64, unless the par-ties by common consent agreed to submit the dispute toarbitration. However, given the greater scope of thedraft convention at present being considered and thefact that an international organization could not bring adispute before the International Court of Justice, theInternational Law Commission had proposed in sub-paragraph (b) of article 66 a different provision for thesettlement of disputes, whereby any party to such adispute could bring the matter before an arbitral tri-bunal, as provided for in the annex; disputes on othermatters could be brought before a conciliation commis-sion whose function would be confined to making re-commendations to the parties for the amicable set-tlement of the dispute.

56. The Soviet amendments and the three-Poweramendment ignored the Commission's fundamentalpurpose of establishing a strong mechanism for thesettlement of jus cogens disputes and seemed to bebased on the curious premise that the parties to the draftconvention did not need any effective protection in theevent of such disputes, even though the conventionunderlined the special nature of such disputes wherethe invalidity of treaties that violated jus cogens princi-ples was involved. Such an approach posed a great riskto the stability of treaty relations.

57. The United Nations amendment retained the es-sence of the distinction proposed in draft article 66but had a number of disadvantages which made it lessacceptable than the International Law Commission'stext. The eight-Power amendment had the merit ofbuilding on the Commission's text and aligning theprovision relating to jus cogens disputes as closely aspossible with that in the 1969 Vienna Convention.58. The Netherlands amendment (A/CONF. 129/C. 1/L.67) to the annex introduced a useful clarification andshould be accepted.59. Mr. SWINNEN (Belgium) said that the codifica-tion of international law, including the law of treaties,was of real benefit only if it was accompanied by effec-tive machinery for application and interpretation. Cod-ification did not end with the conclusion of negotiationsnor even with the entry into force of a convention, fordifficulties of interpretation and application would un-doubtedly arise. It was therefore important to provide asuitable system for the settlement of disputes.60. His delegation was unable to approve article 66 asproposed by the International Law Commission be-cause, unlike the corresponding provision of the 1969Vienna Convention, it made no provision for referenceof disputes concerning a peremptory norm of generalinternational law to the International Court of Justice.He fully shared the views expressed by the Austrianand Japanese representatives on that point at the24th meeting.61. The positive stand his country had taken withregard to the 1969 Vienna Convention was based on the

link it established between the articles on jus cogensand the guarantees provided for the submission of dis-putes to the International Court. It was his delegation'shope that a similar balance would be achieved at thepresent Conference, in the interest of building up aconsistent body of case-law. The Conference's primarytask in its codification endeavour was to establish aproper settlement-of-disputes procedure that wouldsupport that endeavour and enhance legal certainty.

62. For all those reasons, his delegation favoured theclosest possible parallel with the 1969 Vienna Conven-tion. For the same reasons, it favoured the eight-Poweramendment, which took due account of the increasing-ly important role that international organizations werecalled upon to play. It would be undermining that role ifinternational organizations were not enabled to availthemselves of the advisory opinions of the InternationalCourt of Justice. Subparagraph 2 (e) of that amendmentwas, admittedly, somewhat paradoxical, and it mightwell be asked whether an opinion could be regarded asbinding, and a fortiori an advisory opinion. However,the Japanese representative's remarks were pertinentin that regard. Acceptance of the advisory opinion asdecisive by all the parties to the dispute ensured thenecessary balance with the 1969 Vienna Convention.

63. Ideally, an advisory opinion handed down by thehighest international judicial body on such importantrules as those of jus cogens should be decisive for allparties. A further point to be borne in mind was that theadvisory opinion procedure in question was alreadyincorporated in the Convention on the Privileges andImmunities of the United Nations and in the Conven-tion on the Privileges and Immunities of the SpecializedAgencies. If, however, subparagraph 2 (e) of the eight-Power amendment did not meet with general approval,consideration could perhaps be given to some wordingalong the lines proposed in paragraph 2 of the UnitedNations amendment.

64. In conclusion, he said that the Belgian delegationsupported the amendments to the annex proposed bythe European Economic Community and the Neth-erlands.

65. Mr. HERRON (Australia) said that the compul-sory settlement of disputes presented no problem forhis country. It accepted the compulsory jurisdiction ofthe International Court of Justice under Article 36,paragraph 2, of the Statute of the Court, and had hadoccasion to have recourse to its contentious jurisdic-tion. It had supported the inclusion of a procedurefor the compulsory settlement of disputes in the 1969Vienna Convention and, indeed, would have preferredthat procedure to apply to the whole of part V, and notonly to questions of jus cogens. That was also theposition of his delegation in regard to the present con-vention.

66. Australia welcomed the inclusion in the draft arti-cles of provision for compulsory arbitration in the caseof disputes concerning JWJ cogens. It was essential forperemptory norms of general international law to beinterpreted under a system that would promote cer-tainty in international relations. Decisions in disputesas to the application of jus cogens should therefore be


binding on the parties to the dispute and, ideally, shouldinvolve a decision of the International Court of Justiceitself, as proposed in the eight-Power amendment.67. The provision for the compulsory settlement ofdisputes contained in article 66 was entirely reasonable,in his delegation's view. Recourse to such a procedurewould be rare, and would be the final step in a seriesof procedural steps as provided for under articles 65and 66. Also, article 66 was wholly in keeping with theobligations under the Charter of the United Nations, forit could be seen as a specific application of the re-quirement under Article 33 of the Charter that the par-ties to a dispute should seek a solution by any peacefulmeans, including conciliation or arbitration.68. Turning to the amendments, he said that his del-egation was unable to accept the Soviet proposals andthe three-Power proposal, which ran counter to theviews he had expressed. It could, however, acceptthe European Economic Community amendment andthe Netherlands amendment. The United Nationsamendment, whereby any party to the dispute couldseek an advisory opinion, was also acceptable in princi-ple. His delegation favoured in particular the eight-Power proposal, which provided for the widest possiblereferral to the International Court of Justice.69. Ms. LUHULIMA (Indonesia) said that, while herdelegation was not opposed to arbitration, as proposedin the draft articles, it considered that compulsory juris-diction would give rise to inflexibility and impair theexercise of State sovereignty with regard to choice ofthe means for resolving disputes. It would thereforeprefer to retain the principle of freedom of choice ofmeans, with the possibility, but not the obligation, ofhaving recourse to arbitration.70. Her delegation was attracted by the Soviet pro-posal to delete subparagraph (a) of article 66, but con-sidered that subparagraph (b) of the article requiredsome adjustment. It also had sympathy with the three-Power amendment.71. Mr. PIL (Democratic People's Republic of Korea)stressed the importance of settlement of disputes inkeeping with the spirit of the Charter of the UnitedNations. Specifically, his delegation considered thatdisputes regarding the interpretation and application ofthe provisions of part V of the draft convention should,as far as possible, be resolved by means agreed upon bythe parties and by direct negotiation between them.72. The shortcomings of article 66 of the 1969 ViennaConvention, which were apparent from the number ofStates that had entered reservations to that provision,should not be repeated. If the text of article 66 was to bemade more widely acceptable, it should take account ofthe need for direct negotiation, respect for State sover-eignty and free choice of peaceful means of settlingdisputes.73. His delegation could support the Soviet pro-posal to amend article 66, the purpose of which was toexclude arbitration and to rely on conciliation. TheConference, in its view, was seeking to draw up aconvention of a universal character, not an agreementof narrow scope, and that convention should not beundermined by a provision which was unrealistic and

contrary to State sovereignty and would result in in-flexibility.74. His delegation also supported the three-Poweramendment, which was along the same lines as theSoviet amendment but approached the question froma different angle. It favoured in particular the clauseproviding that the express consent of the parties to thedispute was required before recourse could be had toarbitration, since that would provide a firm guarantee ofState sovereignty.75. Mr. DENG (Sudan) said that while article 66 asdrafted by the International Law Commission distin-guished between disputes relating to jus cogens andthose concerning the application or the interpretationof provisions of part V dealing with other matters, itstopped short of the corresponding provision in the1969 Vienna Convention, which provided that whereparties failed to resolve a dispute relating to a rule of juscogens under Article 33 of the Charter of the UnitedNations they could submit that dispute to the Inter-national Court of Justice. As the force of jus cogens wasrecognized and accepted by the international commu-nity, his delegation believed that any departure fromthe provisions of the 1969 Convention would lead toproblems in the future and result in uncertainty in inter-national relations. It therefore considered that any dis-pute relating to the application or interpretation of thepresent articles 53 and 64 should, if unresolved byapplication of the procedures laid down in Article 33 ofthe Charter of the United Nations, be referred to theInternational Court of Justice.

76. For those reasons, his delegation supported theeight-Power amendment. In so doing it maintained theposition it had taken in co-sponsoring the proposalwhich had led to the adoption of article 66 of the1969 Vienna Convention. The eight-Power amend-ment, together with the United Nations amendment,which expressed a similar intention, could in its viewbe referred to the Drafting Committee. Although thatproposal largely followed the International Law Com-mission's draft, his delegation could not support thethree-Power amendment, since it added a new requi-rement that States parties to a dispute relating to a ruleof jus cogens should give their express consent to ar-bitration. It could not accept the Soviet Union amend-ment to article 66, as it did not provide a mechanism forthe resolution of disputes where other procedures hadproved ineffective. Finally, the amendments designedto improve the provisions of the annex had the supportof his delegation, which felt they could be sent to theDrafting Committee, as they did not raise issues ofsubstance.

77. Mr. AV AKOV (Union of Soviet Socialist Repub-lics) said that the debate on article 66 reflected thecomplexity of the problems raised by that text, thesolution of which required a delicate approach. It wasindeed desirable to achieve a unified jurisprudence, acomplex task necessitating a spirit of compromise, towhich his delegation was prepared to contribute. Hisdelegation was gratified by the support expressed forits amendment. That proposal constituted a reasonableapproach aimed at eliminating some of the defects ofthe 1969 Vienna Convention, an instrument which, as


the representative of China had rightly pointed out(24th meeting), had taken 11 years to come into forceand had been ratified by only 44 of the 110 Stateswhich had participated in the Conference on the Law ofTreaties. That fact confirmed that a prerequisite forimplementation of the proposed new convention wasthat it should satisfy the world community.78. His delegation agreed with the view that the es-tablishment of rules of jus cogens was not a matter forthe International Court of Justice or for arbitrationprocedures. Their role was to apply the law, not tocreate it. His delegation's amendment was designed toprotect the sovereignty of States and allow them a freechoice of the means of settlement of disputes. Refer-ence had often been made in the past to the bindingnature of decisions of the International Court of Jus-tice and arbitral awards. However, it was necessaryto move with the times, and devise new approachesfounded on jus cogens. He noted that many of thosedelegations which supported his delegation's amend-ment to article 66 had stressed the need to make adjust-ments to subparagraph (b). He suggested that that was amatter for the Drafting Committee.79. His delegation wished to stress that, contrary tothe opinion expressed by the representative of theUnited Kingdom (26th meeting), his delegation hadintroduced its amendment not for tactical purposes butbecause it reflected a position of principle, as his del-egation had previously explained (24th meeting). Theprinciple involved the sovereignty of States and theirfreedom to choose between the possible means of set-tlement of disputes. He also wished to emphasize thatthe argument that the present draft convention shouldfollow the 1969 Vienna Convention as closely as pos-sible was not convincing. The purpose of the pres-ent Conference was not to duplicate the 1969 Con-vention, but to produce an effective set of provisionsappropriate to relations involving international organ-izations.80. His delegation did not insist only on its ownamendment. It felt that the amendment of the threePowers might in due course provide the basis for acompromise incorporating its ideas on recourse to in-ternational organs. His delegation could not, as a mat-ter of principle, support the eight-Power amendment,as it sought to make binding the findings of the Inter-national Court of Justice by having its advisory opin-ions accepted as decisive. His delegation was also un-able to support the United Nations amendment.81. With regard to the proposals relating to the annex,the amendments of the European Economic Commu-nity and the Netherlands could, he felt, be sent to theDrafting Committee. If his delegation's amendment,which referred to arbitration and conciliation proce-dures, was not acceptable, he suggested the adoption,mutatis mutandis, of a procedure similar to that pro-vided for in articles 84 and 85 of the 1975 Vienna Con-vention on the Representation of States in Their Rela-tions with International Organizations of a UniversalCharacter.4 That would be an improvement on the In-

4 See Official Records of the United Nations Conference on theRepresentation of States in Their Relations with InternationalOrganizations, vol. II (United Nations publication, SalesNo. E.75.V.12)p. 207.

ternational Law Commission's draft which called forprocedures that were unwieldy and impracticable.82. In conclusion, he again emphasized that his del-egation was ready to co-operate in a spirit of com-promise. It would therefore reserve its position on arti-cle 66 and the annex pending any further proposals oramendments.83. Mr. DROUSHIOTIS (Cyprus) said that his del-egation was in favour of binding, third-party, compul-sory settlement of disputes by adjudication, since thatprocedure best satisfied the requirements of objectiv-ity, impartiality and uniformity for the peaceful set-tlement of disputes. He emphasized the need, of smallStates in particular, to be able to have recourse to thelaw and its institutions, as that would help to ensure aneffective world order governed by law.84. His delegation considered that in the case of dis-putes involving jus cogens, recourse to the Interna-tional Court of Justice should be provided for whereverpossible. Norms of jus cogens were the most importantrules of international law, as they were of a universalnature and contained obligations erga omnes. His del-egation therefore fully supported the eight-Poweramendment and was sympathetic to the amendmentsubmitted by the United Nations. It considered theformer proposal preferable, as it was more specific andclearer.85. For the reasons he had expressed earlier, his del-egation could not support the amendments to article 66proposed by the Soviet Union and by the three Powers.The Netherlands amendment relating to the annex in-volved only drafting, and could be referred to theDrafting Committee. The delegation of Cyprus believedthat the solutions offered by the 1969 Vienna Conven-tion should be followed as closely as possible, subjectto what was possible under existing law, particularly inrelation to jus cogens.86. Mr. MBAYE (Senegal) said that two opposingviews had emerged from the discussion, one in favourof disputes relating to jus cogens being subject to man-datory arbitration, the other requiring the express con-sent of the parties to arbitration. There appeared to begeneral agreement that disputes related to the articles inpart V, other than articles 53 and 64, should be referredto conciliation. His delegation wished to take a middleposition.

87. The three-Power amendment had the merit of re-quiring the express consent of all the parties to initiatethe arbitration procedure set out in the annex. How-ever, that amendment would be more appropriate if itspecified a time-limit for the expression of such con-sent. That would avoid the risk of an impasse beingreached and the dispute being prolonged. If, on expiryof the time-limit, the party whose consent was soughthad not given it, the procedure in article 66, subpara-graph {a), as proposed by the International Law Com-mission, would apply. At that point, mandatory arbitra-tion would come into force. If such a formula wereadopted, the Drafting Committee could draw up twoseparate paragraphs accordingly.

88. With regard to disputes not related to jus cogens,his delegation preferred the conciliation procedure


provided for in the International Law Commission'sdraft.89. Mr. KOTSEV (Bulgaria) said that, whatever dis-pute settlement mechanism was eventually chosen bythe present Conference, it should be one capable of thewidest possible acceptance. His delegation wished toreaffirm its position that international disputes shouldbe settled on the basis of the sovereign equality ofStates and the principle of free choice of the means ofsettlement.90. The provision in subparagraph (a) of the Inter-national Law Commission article 66 for compulsoryarbitration of disputes concerning the application orinterpretation of articles 53 or 64, at the request of onlyone of the parties, was not justified or appropriate.Arbitration should take place only with the consent ofall the parties. His delegation held the view that themost widely acceptable procedure was conciliation.For reasons already given by a number of delegations, ittherefore favoured deletion of subpararaph (a) of thearticle.91. He agreed with the view that there should be asingle competence to provide judgement on mattersinvolving jus cogens, and that that competence shouldlie with the International Court of Justice. His delega-tion rejected, however, any proposal designed to mo-dify the existing legal situation whereby only Statescould appear before the International Court. The Con-ference was not competent to decide otherwise.92. He expressed surprise that the representative ofthe United Nations, an organization of which Bulgariawas a Member, should have introduced an amendmentwhich did not take account of his delegation's position.His understanding of that amendment was that, at therequest of a State member of an international organiza-tion, any dispute concerning jus cogens to which thatorganization was a party could be brought before the

General Assembly or before the Security Council, asprovided in Article 96 of the Charter of the UnitedNations, with a request that the dispute be forwardedfor an advisory opinion to the International Court ofJustice. The principal organs of the United Nationswould thus be involved in dealing with a dispute relatingto jus cogens. Discussion as to the appropriateness ofsuch a procedure would inevitably take place within theUnited Nations.

93. The representative of the United Nations had re-minded the Committee (24th meeting) that the presentConference could not draft a provision binding on theUnited Nations itself, and had therefore suggested theadoption by the Conference of an appropriate resolu-tion. At the same time, he had proposed that a Statemight, on behalf of an international organization, sub-mit to the principal organs of the United Nations adispute on legal and political matters related to norms ofjus cogens. It was therefore his understanding that theSecretariat of the United Nations was expressing apreference for judicial settlement of disputes over theother means recommended in Article 33 of the Organ-ization's Charter. In the view of his delegation, theSecretariat of the United Nations was by definitionimpartial, and should reflect and promote an uncon-troversial policy. His delegation would wish to see itsown position reflected in the opinions of the Secre-tariat. He was not aware that there was any legal groundfor the Secretariat to maintain a separate policy of itsown.

94. For the reasons he had given, his delegation couldnot accept the amendments of the United Nations andthe eight Powers. In the event of a vote, it would vote infavour of the Soviet Union amendment. His delegationcould also support the three-Power amendment.


28th meetingThursday, 13 March 1986, at 3.30 p.m.




Statement by the President of the Conference on arti-cles 9, 36 bis, 73 and new article

Article 9 (Adoption of the text) (concluded)*

Article 36 bis (Obligations and rights arising for Statesmembers of an international organization from atreaty to which it is a party) (concluded)**

Article 73 (Cases of succession of States, responsibilityof a State or of an international organization, out-break of hostilities, termination of the existence of anorganization and termination of participation by aState in the membership of an organization (con-cluded)***

Proposals for a new article (concluded)****


** Resumed from the 25th meeting.*** Resumed from the 23rd meeting.**** Resumed from the 16th meeting.


1. The CHAIRMAN invited the President of the Con-ference to make a statement to the Committee on con-sultations relating to articles 9, 36 bis and 73 and to anew article which had been held under his chairmanshipamong delegations, and to introduce the new text ofarticle 9, paragraph 2, which had been prepared withinthe framework of those consultations.2. Mr. ZEMANEK (Austria), President of the Con-ference, said that as a result of the consultations,delegations had reached general agreement on a newtext for article 9, paragraph 2 (A/CONF. 129/C. 1/L.73),and had decided that it should be referred to theDrafting Committee for drafting improvements. Theyhad also agreed that the proposals by Cape Verde(A/CONF. 129/C. 1/L.19/Rev.l) and the United King-dom (A/CONF. 129/C. 1/L.27), which contained thesame idea as each other, should form the basis of a newarticle and should be referred to the Drafting Commit-tee for consolidation.

3. Finally, it had been agreed that article 36 bis shouldbe deleted and that an additional paragraph 3 shouldbe inserted in article 73 along the lines of the amend-ment proposed by the International Labour Organiza-tion, the International Monetary Fund and the UnitedNations (A/CONF. 129/C. 1/L.65). It was his under-standing that the Drafting Committee had received twosuggestions for drafting improvements to the expres-sion "obligations and rights arising for States mem-bers" in that paragraph, and the Committee might wishto ask the Drafting Committee to consider them.

4. The CHAIRMAN said that he had been informedthat Italy would not insist on its proposal for a newarticle (A/CONF. 129/C. 1/L.42).

5. If there were no comments on the statement madeby the President of the Conference, he would take itthat the Committee adopted paragraph 2 of article 9 asproposed in document A/CONF. 129/C. 1/L.73 and re-ferred it to the Drafting Committee; that it approved theidea in the proposed amendments of Cape Verde andthe United Kingdom and referred both proposals to theDrafting Committee for the preparation of a consoli-dated text of a new article to be based on them; and thatit deleted article 36 bis and included in article 73 aparagraph 3 worded along the lines of the proposalsubmitted by three international organizations, on theunderstanding that the Drafting Committee would re-view the wording of the new paragraph, in particular inregard to the words "obligations and rights arising forStates members", as well as the title of article 73.

// was so decided.6. Mr. SZASZ (United Nations) said that the inter-national organizations wished to place on record theirhope that the new article to be included in the futureconvention would not be used by States to the prejudiceof international organizations which were parties to atreaty in which the relations between the States partiesto the treaty were governed by the 1969 Vienna Con-vention on the Law of Treaties.'



7. Mr. VASSILENKO (Ukrainian Soviet SocialistRepublic) said that some of the amendments to arti-cle 66 reflected and carried on the idea in that article'ssubparagraph (a) and some negated it. The questionarose as to what could and should be the criterion forevaluating that paragraph and the amendments relatingto it, or, in other words, the criterion for determiningwhich of the proposed rules for settling disputes con-cerning jus cogens were in accordance with interna-tional law in force, and which contradicted its norms.8. It could be said with full confidence that the cri-terion was a generally recognized norm/principle ofcustomary law that parties to a dispute should have afree choice of the procedural means of dispute set-tlement. That norm/principle had developed over cen-turies of international relations and most adequatelyreflected international legal reality.9. His delegation therefore firmly supported theamendment proposed by the Soviet Union (A/CONF. 129/C. 1/L.60), as well as the three-Poweramendment (A/CONF. 129/C. 1/L.68), which provided agood basis for rules to govern the settlement of dis-putes. It both corresponded to existing internationallaw and took account of the specific nature of inter-national organizations. The legal problems that couldarise where international organizations were parties toa treaty had been the subject of careful considerationduring the preparation of the 1975 Vienna Conventionon the Representation of States in Their Relations withInternational Organizations of a Universal Character.2That Convention took account of the particular featuresof disputes between States and international organiza-tions, and it included procedural rules for settlement ofsuch disputes which corresponded with general inter-national law. In the view of his delegation, the presentConference should follow that example, in order toensure the effectiveness of the proposed new conven-tion and make it a reliable instrument to meet the needsand interests of both States and international organ-izations.

10. His delegation believed that the need to harmo-nize the specific subject of the present Conference withgeneral international law was reflected in all the pro-posed amendments, even those with which his delega-tion could not agree as a matter of principle, such asthose of the United Nations (A/CONF. 129/C. 1/L.66)and of the eight Powers (A/CONF.129/C.1/L.69/Rev.l). It was known that only States could appearbefore the International Court of Justice, the only bodywhich could rule on disputes relating to norms of juscogens, since jus cogens was laid down in the Charterof the United Nations. The specific nature ofjus cogensrequired special procedural guarantees for the settle-ment of disputes concerning it.


2 Official Records of the United Nations Conference on theRepresentation of States in Their Relations with InternationalOrganizations, vol. II (United Nations publication, SalesNo. E.75.V.12), p. 207.


11. The norms of jus cogens were norms of generalinternational law, and the most important of them wereset out in the Charter of the United Nations. They hadtherefore not been drawn up by the International Courtof Justice or by any other international body, but byStates, on the basis of agreement between them. Itfollowed that the settlement of disputes involving juscogens was primarily a matter for States themselves.The parties to a dispute could, if they deemed it neces-sary, use the procedure of seeking an advisory opinionfrom the International Court of Justice, but that re-quired the consent of all the parties. Furthermore, itwas only logical, in matters relating to the norms of juscogens, which reflected the interests of the interna-tional community as a whole, that the advisory opinionof the Court should be the unanimous opinion of all itsmembers, elected to represent "the main forms ofcivilization and of the principal legal systems of theworld", as is said in Article 9 of the Statute of the Court,points not specified in the United Nations and eight-Power proposals.

12. However, the greatest shortcoming of thoseamendments was that they called for the settlement ofdisputes by compulsory judicial procedure, which con-tradicted existing international practice, did not reflectthe sovereignty of States and ran counter to the almostuniversally accepted principle contained in Article 36,paragraph 1, of the Statute of the International Court ofJustice.13. In conclusion, his delegation stressed the need tofind a solution which took account of the interests of allStates, existing practice and the norms of general inter-national law.14. Mr. RIPHAGEN (Netherlands) said that in theview of his delegation, since jus cogens was a relativelynew concept, it required a relatively new approach forthe settlement of disputes concerning it. In view of thespecific character of jus cogens, if States and inter-national organizations invoked it as a ground for in-validating a treaty, objections could be raised by otherparties. In that case the first possibility would be re-course to one of the means of settlement referred to inArticle 33 of the Charter of the United Nations, such asnegotiation. However, he wondered what the subject ofthe negotiation could be. The subject was either a ruleof jus cogens or it was not. Even if an agreement wasreached by negotiation, it would not be valid if it wascontrary to jus cogens. The problem had been correctlydealt with in the 1969 Vienna Convention, which pro-vided for settlement through the International Court ofJustice at the request of any party. In his view thatprinciple should be retained.

15. However, in the context of the present draft con-vention a technical difficulty arose from the fact that aninternational organization raising an objection couldnot appear before the International Court of Justice.The only solution then was a request for an advisoryopinion. Such a request required use of the procedureslaid down in the Charter of the United Nations, and wastherefore dependent on the collaboration of organs ofinternational organizations which were not parties tothe dispute. In order to avoid the situation where asettlement could not be achieved, due to the non-col-

laboration of such organs, an alternative procedure wasrequired, and that was compulsory arbitration. Withoutthat, it would never be known what the rule of juscogens was. A similar situation would arise where onlyinternational organizations invoked jus cogens. Thereagain, if there were no collaboration in seeking an ad-visory opinion, another procedure would have to befollowed. The only possible procedure was then com-pulsory arbitration. He therefore urged the Committeeto adopt the eight-Power amendment.16. Mr. ALM0D6VAR (Cuba) said that he wasfrankly amazed at the approach adopted by the Inter-national Law Commission in article 66, in view of theCommission's statements in pararaph (3) of its com-mentary to the article (see A/CONF. 129/4) that "theconsiderations which had led it fifteen years ago not topropose provisions for the settlement of disputes in thedraft articles on treaties between States had lost none oftheir weight", and that "the Commission remains fullyalive to the continuing differences among States on thisquestion today. The solution which it adopted in secondreading was rejected by some members; it establishescompulsory arbitration for disputes concerning the ap-plication or the interpretation of articles 53 or 64 andcompulsory conciliation for disputes concerning theother articles in part V."17. In paragraph (4) of the same commentary, theCommission had further stated: "The transposition ofthe solutions adopted at the Conference in 1969 con-cerning disputes to which international organizationsare parties involves a major procedural difficulty: inter-national organizations cannot be parties in cases beforethe International Court of Justice." The Commissionhad gone on to recognize that recourse could thereforenot be had to the International Court. In 1980, it hadstudied various means of remedying the situation buthad to abandon its efforts because of "the imperfec-tions and uncertainties" of the procedure in question,as it said in the same paragraph (4).

18. The solid arguments thus put forward by the Com-mission itself strengthened his delegation's opposition—and that of most other delegations—to compulsorydispute settlement procedures not agreed to by a sov-ereign decision taken by a State in each specific case.

19. It was in the light of those considerations that hisdelegation whole-heartedly supported the two amend-ments proposed by the Soviet Union (A/CONF.129/C.1/L.60 and L.61), which were well balanced, re-spected the rights of States and international organiza-tions and were well rooted in international practice.While his delegation could not support the amendmentsof the European Economic Community (A/CONF.129/C.1/L.64), the United Nations (A/CONF. 129/C.1/L.66),the Netherlands (A/CONF. 129/C.1/L.67) and the eightPowers (A/CONF. 129/C.l/L.69/Rev.l), it appreciatedthe efforts made by their sponsors.

20. As for the joint amendment submitted by Algeria,China and Tunisia (A/CONF. 129/C.1/L.68), his del-egation would not object to its being referred to theDrafting Committee.

21. Mr. SOMDA (Burkina Faso) said that two prob-lems had stood in the way of accession by States to the


1969 Vienna Convention: the problem of jus cogens andthat of the settlement of disputes.22. Jus cogens or a peremptory norm of general inter-national law had been defined in article 53 of that Con-vention as "a norm accepted and recognized by theinternational community of States as a whole as a normfrom which no derogation is permitted and which can bemodified only by a subsequent norm of general inter-national law having the same character." However,neither that Convention nor the present draft providedany criteria for determining how a norm would be ac-cepted and recognized as having a peremptory char-acter. For the solution of that problem, the 1969Convention had resorted to judicial settlement by theInternational Court of Justice. In the case of the presentdraft, since international organizations could not beparties to a case before the International Court theInternationa] Law Commission had adopted the solu-tion of compulsory conciliation and arbitration. Thatsolution, however, presupposed that some authoritywould be capable of determining whether a norm con-stituted a rule of jus cogens or not.

23. Burkina Faso was not opposed to the use of ar-bitration for the settlement of international disputes. Itfavoured the principle of peaceful settlement and ac-cepted any such means of settlement that could bringabout a solution, provided always that that means ofsettlement was not imposed upon it.24. Compulsory arbitration was often provided for inagreements of a limited and specific character, but wasnot suitable for a universal convention. The question ofthe settlement of disputes was connected with the prin-ciple of State sovereignty and with that of freedom ofchoice of the means of settlement of disputes. For thatreason his delegation was unable to accept the Inter-national Law Commission's draft of article 66.

25. It could not support the eight-Power amendment,because that text provided for procedures which wouldbe difficult to apply and which would prove unaccept-able to many States. For similar reasons, his delegationcould not accept the first amendment of the SovietUnion, nor that of the United Nations.

26. His delegation could, however, accept the three-Power amendment and suggested that it should be re-ferred to the Drafting Committee together with thesecond Soviet Union amendment.

27. Mr. SATELER (Chile) said that the discussion ofthe question of settlement of disputes arising from theconcept of jus cogens had revealed a cleavage of opin-ion on two points. The first related to the compulsorycharacter of the settlement procedure and the second tothe choice of the means of settlement.

28. His delegation considered that the means of set-tlement of disputes should lead to a binding decision,and secondly, it felt that the disputes in question shouldbe referred to the International Court of Justice.

29. Regarding the general obligation to settle disputesby peaceful means, he could not accept the view putforward by certain delegations that negotiation con-stituted a special and somehow privileged means ofsettlement. There was no basis for that interpretation in

any of the provisions of the Charter of the UnitedNations or in the relevant General Assembly resolu-tions. On the contrary, there was only one means ofsettlement that was really privileged by the Charter,namely, reference of disputes of a legal nature to theInternational Court of Justice. That was a strong ar-gument in favour of judicial settlement.30. Another important point to be borne in mind wasthat article 66 of the 1969 Vienna Convention was theresult of a compromise achieved after difficult negotia-tions. It was essential not to upset the delicate balanceof that compromise. Unfortunately, however, it wasnot possible to transpose mutatis mutandis the pro-visions of that article into the present draft convention.31. Article 66 as prepared by the International LawCommission had accordingly replaced judicial settle-ment by arbitral settlement. That system would ensurethat any disputes relating to jus cogens would be thesubject of compulsory arbitration and would be ad-judicated upon in accordance with principles of law.32. In his delegation's view, it was preferable to main-tain the system of recourse to the International Court ofJustice, with such adaptation as was necessary for thecase where an international organization was a party toa dispute. That was the purpose of the eight-Poweramendment and also of the amendment proposed by theUnited Nations.

33. His delegation favoured adjudication by the Inter-national Court of Justice, because that Court consti-tuted the only judicial authority recognized by theinternational community as a whole. It should be re-membered that, according to article 53 of the 1969Vienna Convention, a rule of jus cogens had to be"accepted and recognized by the international com-munity of States as a whole." The International Courtof Justice was the body best qualified to interpret arule of that nature. Apart from the excellent reasonsalready given by the representative of Japan on thatpoint (24th meeting), his delegation wished to stress thenegative impact which divergent or conflicting arbitralawards in respect of jus cogens could have. Awards ofthat kind could even imperil the very concept of juscogens and its meaning for the law of treaties andinternational law in general.

34. In view of those considerations, his delegationwas unable to support the amendments of the SovietUnion and the three Powers.

35. Mr. GAUTIER (France) said that his delegation'sattitude towards article 66 proceeded directly from itsposition on articles 53 and 64. Those articles were notacceptable to his delegation because of the uncertaintywhich they introduced into treaty law.

36. The system instituted by the 1969 Vienna Conven-tion constituted a commendable attempt to remedy thesituation which that Convention created for the Statesparties to it. In his delegation's view, however, thesystem which had been adopted did not avoid the riskof peremptory norms being established without theirhaving been accepted or recognized by States.

37. He proposed to confine his comments on the var-ious amendments which had been submitted to certain


technical points. The Soviet Union's amendment toarticle 66 would have the effect of eliminating all ref-erence to arbitration with regard to articles 53 and 64.Since the amendment would rule out all judicial set-tlement and provide only for a conciliation system, itconstituted a retrograde step which, from the point ofview of France, was open to criticism.

38. The eight-Power amendment attempted, in a laud-ble manner, to cover the various types of situation thatarose in the case of disputes, but from the legal stand-point it was open to certain legal reservations connec-ted, in particular, with the nature of advisory opinionsrendered.

39. Mr. VAN TONDER (Lesotho) supported theeight-Power amendment for the reasons given by theJapanese delegation and other delegations which hadspoken in its favour.

40. In so doing, his delegation was motivated by rea-sons of fair play and logic. It started from the sim-ple premise that international organizations as subjectsof international law participated in the development ofperemptory norms of international law both throughtheir practice and through the treaties into which theyentered. As equal partners in the development of thosenorms and in those treaties to which they were par-ties, they should also be treated as equal partners whenhaving recourse to legal remedies in cases of disputes.

41. The eight-Power amendment improved article 66because it provided a means whereby an advisory opin-ion could be sought from the International Court ofJustice on disputes relating to a conflict betweentreaties and jus cogens, including disputes involvinginternational organizations. His delegation also sup-ported the provision in subparagraph 2 (e) of the amend-ment that such opinions should be accepted by all theparties in the controversy as decisive.

42. With regard to the annex, his delegation sup-ported the amendments submitted by the EuropeanEconomic Community and the Netherlands, which in-troduced valuable improvements into the InternationalLaw Commission's draft.

43. Mr. RESTREPO PIEDRAHITA (Colombia) saidthat his delegation, as one of the sponsors of the eight-Power amendment, fully endorsed the Japanese rep-resentative's admirable presentation of that proposal.

44. The field of application of article 66 was undoubt-edly one of the most sensitive, complex and controver-sial of international legal questions. The political andlegal philosphy underlying the amendment took ac-count of both the concept of the State and that of theinternational community. The basis element of thatphilosophy was the judicial function, which, in the caseof a State, was exercised in the ambit of its territoryand, in the case of the community of nations, in that ofthe whole world. That function was conferred uponjudges, who were empowered to render binding de-cisions for the purpose of settling disputes over rivalinterests or claims. In the internal order of States thehighest judicial authority—or supreme court—was en-trusted with the settlement of disputes concerning is-sues of constitutional law. In the same way, the nations

of the world had set up the International Court of Jus-tice as a supreme court to safeguard international law.

45. Disputes concerning the application or interpreta-tion of rules of jus cogens (articles 53 and 64) not onlywere of a legal character but could also involve highlypolitical issues. It was therefore essential that theyshould be submitted to careful scrutiny and to effectiveadjudication.

46. His delegation, together with the other sponsorsof the eight-Power amendment, urged the internationalcommunity to have confidence in the InternationalCourt of Justice as the supreme judicial body for thesettlement of international disputes. The history of theCourt showed that its judges had always commandeduniversal respect by reason of their moral integrity andprofessional competence.

47. His delegation was aware of the reservations ofcertain delegations with regard to the compulsory juris-diction of the Court that was envisaged in the amend-ment. Those reservations were rooted in fears relatingto sovereignty and to the exclusive competence ofStates to choose the mode of settlement of disputes.

48. Representing as it did a developing country andpeople, his delegation had the fullest confidence in theexistence and operation of institutions which guaran-teed the rules of jus cogens, rules which were of vitalimportance to States. It believed in the rule of law andhad faith in the authorities instituted to make it effec-tive. It placed its trust in judges, who alone could renderauthentic justice between men, maintain the rule of lawand rule out the law of the jungle. The concept ofsovereignty did not mean that only rulers—to theexclusion of judges—were entitled to uphold the in-tegrity of the basic principles governing the relationsbetween nations.

49. Mr. HUBERT (Canada) said that the positiontaken by his delegation was based on a number offundamental principles derived from its conception ofrelations within a community of countries and organiza-tions respectful of the international legal order.

50. The norms of jus cogens were, by their very na-ture, universal and created erga omnes obligations.There could be no derogation from them by any subjectof international law without threat to the fabric of therelations involved.

51. Some delegations had called for acknowledge-ment of the fact that those norms sometimes gave rise tocontroversies of a legal or even political nature. How-ever, the Canadian delegation regarded that fact as anadditional reason for ensuring that all such disputescould if necessary be subjected to judicial or arbitraladjudication.

52. His delegation believed that every adjudicationbearing on jus cogens should have the following threeminimal and essential characteristics. First, the ad-judication must emanate from an independent and fullyqualified organ. Secondly, unilateral recourse to suchadjudication must be available to all parties in the dis-pute. Thirdly, the judicial or arbitral decision must bebinding on all the parties.


53. His delegation found it difficult to understand howit could be argued that compulsory judicial or arbitraladjudication could constitute what had been termed"legal or political oppression". It believed, on the con-trary, that such a risk could arise out of a situationcontrary to that envisaged in the International LawCommission's draft of article 66, or in the United Na-tions amendment and the eight-Power amendment. Itwould in its view be unreasonable, inequitable andconsequently unacceptable to envisage that a party to atreaty might unilaterally withdraw from its obligationsby invoking jus cogens without the other party or par-ties involved being able to have recourse to an indepen-dent judicial or arbitral procedure. The amendmentssubmitted by the Soviet Union sought clearly to elimi-nate the possibility of such recourse.

54. The three-Power amendment was less radical, butnevertheless sought to make such resources subject toprior agreement by—and consequently subject to theveto of—the other party. Those two possibilities ap-peared to the Canadian delegation to run counter to thecommon interest of the international community as awhole. Nor did those proposed solutions seem to offerthe best guarantee of respect for the principle pactasunt servanda embodied in article 26.55. His delegation therefore had no doubt which wasthe best solution as far as protection of the rule of lawagainst the rule of the strongest was concerned.

56. Those considerations led his delegation to askwhat would any subject of international law, claiming toact in accordance with the law, have to fear from thesubmission of its action to judicial or arbitral adjudica-tion, especially where—as in the present instance—juscogens was involved.

57. It had also been argued that compulsory adjudica-tion constituted an infringement or a limitation of thesovereignty of States. The Canadian delegation's posi-tion on that point had been expressed during the discus-sions leading up to the adoption of article 66 of the 1969Vienna Convention. In the context of the present de-bate he wished to assert that the proposal in article 66before the Committee, or in the modified form thereofproposed in the amendment of the United Nations andthat of the eight Powers, was no more inconsistent withthe principle of sovereignty than was the Charter of theUnited Nations.

58. The establishment in the present draft conventionof the right of any party to a dispute involving juscogens to resort unilaterally, if necessary, tojudicial orarbitral adjudication would tend to incite the parties toreach an understanding. In fact, if the parties to a treatyknew in advance that they might eventually have tosubmit to an impartial decision that would be binding onthem, they would see the advantages of a just andequitable settlement of their differences.

59. It was consequently obvious that the Canadiandelegation could not accept the first amendment sub-mitted by the Soviet Union or paragraph 2 of its sec-ond amendment. Nor could it accept the three-Poweramendment. All the amendments would, it believed,constitute a retrograde step in relation to the valu-able achievements of the 1969 Vienna Convention. Jus

cogens must remain/us cogens; the fact that the presentdraft convention concerned treaties to which interna-tional organizations were parties changed nothing.60. Of the United Nations and eight-Power amend-ments, the Canadian delegation preferred the latter be-cause, besides fully responding to the basic criteriawhich he had mentioned, it took more specific account,and with greater clarity and precison, of what wasalready stipulated in the Charter of the United Nationsand the Statute of the International Court of Justice.61. As to the choice between the eight-Power amend-ment and the International Law Commission's draft,it would be noted that he had consistently referredthroughout his statement to "judicial or arbitral ad-judication". Both satisfied what he had qualified asminimal characteristics for any adjudication bearing onjus cogens. In opting, finally, for the eight-Poweramendment, his delegation was expressing the beliefthat the International Court of Justice offered betterguarantees of continuity in the interpretation of thelaw.

62. Should it prove impossible to reach a consensus infavour of that amendment, his delegation would do allin its power to secure the adoption of a text whichretained, as a minimum, the provisions envisaged in theInternational Law Commission's draft of article 66.

63. His delegation considered that the amendmentssubmitted by the European Economic Community andby the Netherlands, as well as the first part of the Sovietamendment in document A/CONF. 129/C. 1/L.61, mightbe referred to the Drafting Committee.

64. Mrs. SIMBRAO (Angola) said that her delegationwished to make two general observations. First, it wasclear that since international organizations could not beparties in cases before the International Court of Jus-tice, the provisions of article 66 (a) of the Vienna Con-vention on the Law of Treaties could not be transferredipsis verbis to the present draft. Second, any solution tothe problem of placing States and international organ-izations on as equal a footing as possible as far asthe settlement of disputes was concerned must be ap-proached with circumspection, and above all with re-spect for the principle of the sovereignty of States.

65. Of the different solutions proposed, one in par-ticular, that involving recourse to the InternationalCourt of Justice through an intermediary, seemed likelyto lead to confusion. Pointing to the organic link be-tween article 66 and article 65 in its entirety, shestressed that the most important elements were theprinciples of common consent and the free choice ofmeans.

66. Her delegation welcomed the three-Poweramendment, which it considered faithful to the spirit inwhich the text of the article had been drafted. In dis-putes involving jus cogens, arbitration would becomeobligatory provided there was common consent; theminimum agreement that was sought as a basis for thesettlement of such disputes would thus be guaranteed.

67. Mr. AKA (Cote d'lvoire) observed that the persis-tence of differences with regard to part V of the 1969Vienna Convention could not fail to have an effect on


the stability of treaty relations between States, andhence on peaceful and friendly co-operation betweenthem.68. The issue concerning part V of the draft conven-tion had led many delegations—including his own—tobelieve that a special and compulsory procedure for thesettlement of disputes related to articles 53 or 64 wasboth justified and necessary. For its part, his delegationmaintained and would continue to maintain the positionit had taken at the 1969 Vienna Conference, especiallysince the International Law Commission had wiselydecided to preserve a certain parallelism between theearlier instrument and the draft under discussion. Itwould thus have no difficulty in accepting the Commis-sion's draft of article 66.69. As far as possible improvements in that text wereconcerned, his delegation favoured the eight-Poweramendment, which took account of the need to guaran-tee, by all possible means, the peaceful settlement ofdisputes.70. Mr. LARSSON (Sweden) said that his delegationendorsed the idea underlying the International LawCommission's draft of article 66. In its view, the pro-visions of that draft were the absolute minimum itcould accept in a convention such as the one underelaboration.71. Knowledge that automatically available settle-ment procedures existed would discourage unfair ob-struction and abuse and would also encourage the par-ties to a dispute to agree spontaneously on a methodof settlement. Far from preventing the parties fromconcluding special agreements in the form of a com-promis, the procedures proposed would, he felt, en-courage them to do so.

72. While his delegation therefore generally endorsedthe Commission's proposal, it also saw considerablemerit in the eight-Power amendment, as well as in theproposals concerning the annex submitted by the Euro-pean Economic Community and the Netherlands. Onthe other hand, it considered that the United Nationsamendment fell short of the desired goal. His delegationcould not support the amendments proposed by theSoviet Union and by Algeria, China and Tunisia.

73. Mr. P1SK (Czechoslovakia) said that his com-ments would be brief, as almost all the possible ar-guments for and against compulsory jurisdiction hadbeen put forward.

74. As had been pointed out, the approach adopted bythe 1969 Vienna Convention on the question of compul-sory jurisdiction continued to make it difficult for anumber of States to accede to that instrument, despitetheir recognition of its value.

75. Article 66 of the 1969 Vienna Convention andthe present draft article 66 both envisaged disputesinvolving two or more parties to a treaty. It was incon-ceivable, however, that a court would rule on the in-validity of a treaty as between two or more parties only,the remaining parties continuing to be bound by thetreaty regardless of the fact that the norms of jus cogenshad been violated and articles 53 and 64 applied. Toreplace in the new convention the compulsory judicial

settlement involving the International Court of Justicewhich was provided for in the 1969 Vienna Conventionby compulsory arbitration was merely to transpose theproblem in its entirety; there again, the invalidity of atreaty under article 53 or 64 would apply to all theparties to the treaty, and not merely to those involved inthe dispute.

76. It might be asked whether a State could be obligedto submit to the ruling of the International Court ofJustice or to an arbitration procedure disputes thatmight involve different subjects of international law—States and international organizations—and mightconcern the very foundations of the foreign policy ofStates. For example, the issue might be that of decidingon the nullity of a treaty due to the use of force or thethreat of force. The determination of the use of force asan act of aggression was a matter for the Security Coun-cil, not for an organ of arbitration or the InternationalCourt of Justice. The interpretation ofjus cogens must,in his delegation's opinion, be left to States and not toan organ composed of experts, however highly qual-ified. International arbitration was a suitable means ofresolving some disputes, but a distinction had to bemade between the use of compulsory arbitration fordealing with certain special, non-political problems andits use for settling disputes involving fundamental as-pects of State policy.

77. Those considerations led his delegation to supportthe first amendment proposed by the Soviet Union andalso the three-Power amendment, which tended in thesame direction. It was unable to accept either the Inter-national Law Commission's draft of article 66 or theamendments which provided for the obligatory jurisdic-tion of the International Court of Justice or arbitration,or for advisory opinions of the Court that were notbased on the consent of all the parties concerned.

78. Mr. KANDIE (Kenya) said that settlement of dis-putes played an important dual role in any legal system:that of resolving disputes that might arise in the applica-tion of law and that of interpreting the provisions of law,a process that involved adding to the law and making itmore certain.

79. Probably the most far-reaching proposal beforethe Committee was the one contained in the eight-Power amendment. In the view of the Kenyan delega-tion, the scheme which it proposed could play anextremely useful role by making it possible for disputesrelating to jus cogens to be referred to the world'shighest judicial body, the International Court of Jus-tice. That was, he believed, only proper; and althoughthe proposed recourse by organizations not entitledunder the Charter of the United Nations to approachthe Court directly was by a rather circuitous route, hisdelegation found the amendment totally acceptable.

80. Since Kenya favoured compulsory procedures forthe settlement of disputes, it had no difficulty in sup-porting the amendments proposed by the EuropeanEconomic Community and by the United Nations, al-though the ideas they contained seemed to be embodiedin the eight-Power amendment. It could also supportthe Netherlands amendment, which aimed at givinggreater clarity to the annex. All those amendments


could, he believed, be referred to the Drafting Com-mittee.81. In view of its support for the eight-Power amend-ment, his delegation would find it difficult to accept theSoviet amendments or the three-Power amendment.

82. Mr. SIEV (Ireland) voiced his delegation's firmbelief that all small States stood in special need ofthe protection of the rule of law. That was why Ireland,as one such State, was a sponsor of the eight-Poweramendment.

83. The procedure to be followed by a party to a treatywishing to take action with respect to invalidity, ter-mination, withdrawal from or suspension of its opera-tion was set out quite precisely in article 65. Assumingthat one of the parties refused to discuss the matterin dispute, refused to negotiate, refused arbitrationand refused conciliation, what possible solution wasthere other than the one set out in the eight-Poweramendment?

84. The Irish delegation recognized that both sov-ereign States and international organizations involvedin disputes concerning a treaty should have the oppor-tunity to negotiate directly in the first instance; but atthe same time it considered that, whether or not a juscogens issue was involved, adequate safeguards mustbe provided against abuse of a right by one or moreparties to a treaty leading to a dispute. The treaty in-terests of small States in particular should be protectedby appropriate measures, for in a lawless society themost powerful prevailed because they did not need theprotection of the law. At the international level, too, thestrong might make their own law. There was no greaterpotential for inequality than when there was nothing ina treaty to enable a party to enforce its rights and toprevent the latter from being unilaterally terminated. Inthe view of his delegation, the eight-Power amendmentoffered the best protection against such an eventuality.

85. The Irish delegation considered that the amend-ment proposed by the European Economic Communityand the Netherlands amendment might be referred tothe Drafting Committee. It was unable to support theother amendments before the Committee.

86. Mr. RAMADAN (Egypt) said that the issue be-fore the Conference was not new. It had been discussedin numerous international bodies, and the positions ofStates on it were well known. It should therefore not beallowed to pose a threat to the present draft convention,as it had done to the Vienna Convention on the Law ofTreaties in 1969, particularly given the spirit of concilia-tion that had thus far prevailed at the present Con-ference.

87. There were three main points to be taken intoconsideration: first, the fact that article 66 of the1969 Vienna Convention had been signed by more than70 of the States represented at the present Conference;secondly, the difference in legal status between a Stateand an international organization, as affirmed by a num-ber of delegations and also by the International LawCommission; and, thirdly, the fact that article 66 wassimilar to the corresponding provision of the UnitedNations Convention on the Law of the Sea, which had

been signed by over 159 States, both Members and non-Members of the United Nations.88. He proposed that further consideration of arti-cle 66 should be suspended to allow informal negotia-tions to be held with a view to arriving at a satisfactorysolution that would take account of the three points hehad mentioned.89. Mr. BIPOUN WOUM (Cameroon) said that thedifficulties inherent in article 66 and the annex theretowould take a long time to resolve. His delegation, for itspart, would do its utmost to find a solution that wouldcommand as much support as possible and thus help tosafeguard the universal character of the future conven-tion. With that in mind, he had three points to raise. Thefirst point concerned the distinction between disputesaccording to whether they related to articles 53 and 64or to other articles in part V of the draft convention:article 66 provided for arbitration in the former caseand for conciliation in the latter. The draft convention,however, like the 1969 Vienna Convention, introducedthe notion of compulsory conciliation, which meant, ineffect, application of the conciliation procedure inher-ited from classical international law under such in-struments as the Hague Conventions of 1899 and 1907,the General Act for the Pacific Settlement of Inter-national Disputes of 1949, the 1957 European Conven-tion for the peaceful settlement of disputes and the 1964Protocol of the Organization of African Unity. Thatprocedure resulted, not in a decision, but in a proposedsolution which left the parties free to decide whether ornot to adopt it. He therefore wondered whether it mightbe possible to improve on that procedure somewhat inorder to find a way out of the present difficulty.

90. His second point concerned the need to ensureconsistency in interpretation of the rules of jus cogens.In his delegation's view, since the concept of jus cogenshad a decisive role to play in the new international law,it was essential to prevent the conceptual fragmentationthat would occur if disputes concerning the applicationor interpretation of treaty provisions embodying suchrules were submitted to compromise-type procedures.91. The third point concerned the fact that some coun-tries recognized the compulsory jurisdiction of the In-ternational Court of Justice while others did not. Hisdelegation therefore considered it essential to promotea solution that would enable the maximum number ofStates to accede to the draft convention.

92. Mrs. GOLAN (Israel) said that at the Vienna Con-ference on the Law of Treaties her country had voted infavour of providing for the possibility of the emergenceof new peremptory norms of international law. Never-theless, it still had some doubts regarding the existenceof such norms not already embodied in internationaltreaty instruments.

93. The Conference's main objective should be toprovide for speedy and just settlement of disputes bypeaceful means freely chosen and in conformity withthe principle of the sovereign equality of States. Ac-cordingly, dispute-settlement procedures should beagreed by all the parties to the dispute, irrespectiveof whether they were States or international organi-zations.


94. With regard to the settlement procedure, her del-egation's preference was for conciliation, although ar-bitration was nevertheless also a possibility, providedit was agreed to by the parties, by common consent. Itdid not favour application to the International Courtof Justice for an advisory opinion, even in the limi-ted cases proposed in the amendments of the UnitedNations and of the eight Powers, as the opinion ofthe Court would then acquire a compulsory characterwhich it did not at present have, and that would con-stitute a dangerous precedent. The three-Power pro-posal, which incorporated the principle of commonconsent, was more suitable, although her delegation didnot favour the application of different procedures forthe interpretation of the provisions of part V of the draftconvention.

95. Lastly, her delegation was not opposed to theproposals of the Netherlands and the European Eco-nomic Community for amendment of the annex, both ofwhich could be referred to the Drafting Committee.96. Mr. OGISO (Japan) said that one theme had beenconsistently stressed throughout the Conference: theimportance of maintaining parallelism between the 1969Vienna Convention and the present draft convention.There was an apparent consensus that, in so far aspossible, the provisions of the latter should follow thoseof the former.

97. The intent of the eight-Power amendment, whichhe had introduced on behalf of the sponsors, was torespect that parallelism and, as could be seen from itsparagraphs 1, 2 (a), 3 and 4, the basic approach of arti-cle 66 of the 1969 Vienna Convention had been re-tained. New elements had been introduced solely totake account of the case in which an international or-ganization might be involved in a dispute, but there,too, every effort had been made not to depart from thespirit of the 1969 Convention.

98. It was clear that the first Soviet amendment andthe three-Power amendment constituted a radical de-parture from the system of the 1969 Vienna Conven-tion, for they not only dispensed with the role of theInternational Court of Justice but also weakened thecompulsory arbitration procedure by rendering it vol-untary.

99. Some doubts had been expressed regarding sub-paragraph 2 (e) of the eight-Power amendment, underwhich advisory opinions would be accepted by theparties as "decisive". Such a provision, however, wasnot unusual; a similar one was to be found in the Con-vention on the Privileges and Immunities of the UnitedNations and in the Convention on the Privileges andImmunities of the Specialized Agencies.

100. Another point which had been raised concernedthe important principle of free choice of means for thesettlement of disputes, which was affirmed in article 65,paragraph 3. It was not the intent of the eight-Poweramendment to deny that principle but, rather, to pro-vide for an additional safeguard in the event that thedispute-settlement procedure selected by the partiesconcerned proved to be unworkable. Such an addi-tional procedure was particularly necessary given theunique jus cogens nature of the disputes concerned.

Moreover, the proposed compulsory settlement pro-cedure was not new to multilateral treaty-making anddid not infringe the principle of free choice of means, forit would apply solely to States that became a party tothe convention and thereby agreed in advance to theprocedure.101. Mr. NOLL (International TelecommunicationUnion) said that his organization was unable to agree tosubparagraph (a) of article 66 as contained in the Inter-national Law Commission's draft. In its view, any dis-pute concerning jus cogens, which was a fairly newconcept, not yet free of uncertainty as to its contentand practical application, should be referred, wheneverpossible and in the first instance, not to an arbitraltribunal but to the highest judicial body that existed,namely, the International Court of Justice. That wouldbe in keeping with the spirit of the 1969 Vienna Con-vention.102. He therefore wanted to comment further onlyon the proposals of the United Nations and of the eightPowers. His organization's preference was for theUnited Nations amendment, which provided that theadvisory opinion of the International Court of Justiceshould be sought in the case of a jus cogens dispute. Itthus placed the international organization on an equalfooting with the State party involved. It was that lat-ter aspect which made it difficult for the InternationalTelecommunication Union to support the eight-Poweramendment, under subparagraph 2 {a) of which an in-ternational organization would be precluded from sub-mitting its views to the International Court of Justice inany dispute brought before the Court by a State.

103. Furthermore, under subparagraph 2 (b) of thesame amendment, if a State was a party to a dispute towhich one or more international organizations wereparties, the State could ask the General Assembly orthe Security Council only to request an advisory opin-ion of the International Court of Justice and would thusbe precluded from requesting the competent organ ofthe international organization concerned of which thatState was a member to submit an application to theInternational Court of Justice in accordance with Arti-cle 96 of the Charter of the United Nations.

104. Consequently, and following consultations be-tween the delegations of his organization and the Inter-national Labour Organisation, he wished to suggest forthe consideration of the sponsors of the eight-Poweramendment that, after the words "Security Council",in subparagraph 2 (£>), the following phrase should beadded: "or, in appropriate cases, the competent organof an international organization that is authorized inaccordance with Article 96 of the Charter of the UnitedNations".

105. He expressed the view that it might be possible,within the framework of the consultations held at theConference, to combine the essential elements of theproposals put forward in the United Nations amend-ment and in the eight-Power amendment.

106. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that provision for the compulsory juris-diction of the International Court of Justice was un-acceptable to his delegation, which therefore could


not support the amendments that called for such juris-diction. He failed to understand how, when only some40 States accepted that jurisdiction, in many cases withreservations, certain delegations were anxious to pro-vide for it in the draft convention. His delegation wasnot opposed in principle to the submission of disputesto any court, arbitral tribunal, conciliation commission,or other such organ, but such submission must be vol-untary and have the consent of the parties.

107. The CHAIRMAN said that, in the light of thedebate, he took it that the Committee wished to defer itsdecision on article 66 and the amendments thereto, sothat those matters could be considered in consultationsto be held under the chairmanship of the President ofthe Conference.

// was so decided.






Article 3 (International agreements not within thescope of the present articles) (concluded)*

1. The CHAIRMAN drew attention to the text ofarticle 3 reproduced in document A/CONF. 129/C.l/L.75. The text had been agreed by delegations in con-sultations held under the chairmanship of the Presidentof the Conference. If he heard no objection, he wouldtake it that the Committee adopted that text and re-ferred it to the Drafting Committee.

It was so decided.

Preamble

2. The CHAIRMAN drew attention to the text of thepreamble to the draft convention, which was repro-duced in document A/CONF. 129/C. 1/L.77. That word-ing had also been agreed by delegations in consul-tations held under the chairmanship of the Presidentof the Conference. It was based on the formal pro-posals submitted to the Committee by Brazil and India(A/CONF. 129/C. 1/L.71) and by Czechoslovakia, theGerman Democratic Republic and the Ukrainian SovietSocialist Republic (A/CONF. 129/C. 1/L.72), as well ason various informal proposals. If there was no objec-tion, he would take it that the Committee adopted thepreamble reproduced in document A/CONF. 129/C.l/L.77 and referred it to the Drafting Committee.

// was so decided.




Statement by the President of the Conference

3. Mr. ZEMANEK (Austria), President of the Con-ference, said that the General Committee had reviewedthe results of attempts which delegations had madeinformally to agree on a text for article 66 which wouldbe generally acceptable. It had come to the conclu-sion that there was no immediate prospect of any suchagreement. It therefore recommended that the Commit-tee of the Whole should take an indicative vote by roll-call on each of the amendments which had been sub-mitted to article 66 as drafted by the International LawCommission. The results of the votes should assistdelegations in deciding whether to hold further consul-tations with a view to working out a text that wouldcommand the widest possible support. The GeneralCommittee further recommended that the Committeeshould meet the following day in order to take a vote onarticle 66 and the annex, if there was no indication bythen that general agreement on the matter had been orwas about to be reached, and also in order to deal withthe final clauses of the draft convention. Those recom-mendations were made in accordance with rule 63 of therules of procedure.

4. The CHAIRMAN observed that the amendmentsto the annex proposed by the Soviet Union, the Euro-pean Economic Community and the Netherlands(A/CONF. 129/C. 1/L.61, L.64, and L.67, respectively)were excluded from the procedure recommended bythe General Committee, the reason being that the firstof those proposals was consequential upon the SovietUnion's proposal for article 66 (A/CONF. 129/C. 1/L.60)and the other two were of a drafting nature.

5. Unless he heard any objection, he would take it thatthe Committee wished to adopt the procedure recom-mended by the General Committee.

It was so decided.

6. The CHAIRMAN invited the Committee to take anindicative vote by roll-call on the amendments pro-posed to article 66. It would be unable to vote onthe United Nations proposal (A/CONF. 129/C. 1/L.66),since, in accordance with rule 60 (1) (d) of the rules ofprocedure, a vote on that proposal would require to be


requested formally by a State, and no such request hadbeen made.7. He therefore invited the Committee to vote, in anindicative vote, first on the amendment proposed by theSoviet Union (A/CONF.129/C.1/L.60).

Switzerland, having been drawn by lot by the Chair-man, was called upon to vote first.

In favour: Algeria, Angola, Argentina, Bulgaria,Byelorussian Soviet Socialist Republic, China, Cuba,Czechoslovakia, Democratic People's Republic ofKorea, German Democratic Republic, Hungary, In-donesia, Iran (Islamic Republic of), Mozambique,Nicaragua, Peru, Poland, Romania, Turkey, UkrainianSoviet Socialist Republic, Union of Soviet SocialistRepublics, Venezuela, Viet Nam.

Against: Australia, Austria, Belgium, Brazil, Can-ada, Chile, Colombia, Cyprus, Denmark, Finland,Germany, Federal Republic of, Greece, Holy See, Ire-land, Italy, Japan, Jordan, Lesotho, Liechtenstein,Mexico, Netherlands, New Zealand, Nigeria, Norway,Portugal, Senegal, Spain, Sudan, Sweden, Switzer-land, United Kingdom of Great Britain and NorthernIreland, United States of America, Yugoslavia.

Abstaining: Bahrain, Bangladesh, Barbados, Bur-kina Faso, Cameroon, Congo, Cote d'lvoire, Egypt,France, Gabon, Guatemala, India, Iraq, Israel, Kenya,Kuwait, Lebanon, Madagascar, Morocco, Oman, Paki-stan, Philippines, Qatar, Republic of Korea, SaudiArabia, Thailand, Tunisia, United Arab Emirates,Zaire, Zambia.

8. The CHAIRMAN invited the Committee to vote,in an indicative vote, on the amendment submitted byAlgeria, China and Tunisia (A/CONF.129/C.1/L.68).

The Union of Soviet Socialist Republics, having beendrawn by lot by the Chairman, was called upon to votefirst.

In favour: Algeria, Angola, Argentina, Bulgaria,Burkina Faso, Byelorussian Soviet Socialist Republic,China, Congo, Cuba, Czechoslovakia, DemocraticPeople's Republic of Korea, German Democratic Re-public, Hungary, Indonesia, Iran (Islamic Republic of),Mozambique, Nicaragua, Peru, Poland, Romania, Tu-nisia, Turkey, Ukrainian Soviet Socialist Republic,Union of Soviet Socialist Republics, Venezuela, VietNam, Zaire.

Against: Australia, Austria, Belgium, Canada, Chile,Colombia, Cyprus, Denmark, Finland, Germany, Fed-eral Republic of, Greece, Holy See, Ireland, Italy,Japan, Kenya, Lesotho, Liechtenstein, Mexico, Neth-erlands, New Zealand, Nigeria, Norway, Portugal,Spain, Sudan, Sweden, Switzerland, United Kingdomof Great Britain and Northern Ireland, United States ofAmerica.

Abstaining: Bahrain, Barbados, Brazil, Cameroon,Cote d'lvoire, Egypt, France, Gabon, Guatemala,India, Iraq, Israel, Kuwait, Lebanon, Madagascar,Morocco, Oman, Pakistan, Philippines, Qatar, Repub-lic of Korea, Saudi Arabia, Senegal, Thailand, UnitedArab Emirates, Yugoslavia, Zambia.

9. The CHAIRMAN invited the Committee to vote,in an indicative vote, on the eight-Power amendment(A/CONF. 129/C. 1/L.29/Rev. 1).

Zambia, having been drawn by lot by the Chairman,was called upon to vote first.

In favour: Australia, Austria, Barbados, Belgium,Canada, Chile, Colombia, Cote d'lvoire, Cyprus, Den-mark, Finland, Germany, Federal Republic of, Greece,Holy See, India, Ireland, Italy, Japan, Kenya, Kuwait,Lesotho, Liechtenstein, Mexico, Netherlands, NewZealand, Nigeria, Norway, Pakistan, Portugal, Repub-lic of Korea, Spain, Sudan, Sweden, Switzerland,United Kingdom of Great Britain and Northern Ireland,United States of America, Yugoslavia, Zambia.

Against: Algeria, Angola, Bulgaria, Burkina Faso,Byelorussian Soviet Socialist Republic, China, Congo,Cuba, Czechoslovakia, Democratic People's Republicof Korea, German Democratic Republic, Hungary, In-donesia, Iran (Islamic Republic of), Mozambique,Nicaragua, Peru, Poland, Romania, Tunisia, Turkey,Ukrainian Soviet Socialist Republic, Union of SovietSocialist Republics, Venezuela, Viet Nam.

Abstaining: Argentina, Bahrain, Brazil, Cameroon,Egypt, France, Gabon, Guatemala, Iraq, Israel, Jor-dan, Lebanon, Madagascar, Morocco, Oman, Philip-pines, Qatar, Saudi Arabia, Senegal, Thailand, UnitedArab Emirates, Zaire.

Article 80 (Registration and publication of treaties)

10. The CHAIRMAN drew the Committee's atten-tion to an amendment submitted by Egypt to article 80,which had been referred by the Conference directly tothe Drafting Committee. He considered that rule 28,subparagraph 2 (a), of the rules of procedure was ap-plicable, and he invited the delegation of Egypt to in-troduce the amendment.

11. Mr. RAMADAN (Egypt), introducing his delega-tion's amendment (A/CONF. 129/C. 1/L.78), said that,in the light of the International Law Commission's com-mentary to article 80 (see A/CONF. 129/4), his del-egation proposed that the expression "filing and re-cording" should be reserved for the type of treaty towhich an international organization was a party, whilethe word "registration" should apply only to treatiesbetween States. There were three reasons for this.First, the concept of registration of internationaltreaties had develped originally as a means of avoidingthe undesirable consequences of secret treaties be-tween States, and to encourage open diplomacy. It wasunlikely that one or more international organizationswould conclude a secret treaty, particularly in view ofthe fact that their existence was based on the intentionto promote social and economic progress and inter-national security. Secondly, Article 102 of the Charter,of the United Nations applied only to the registration oftreaties entered into by States Members of that organ-ization. Thirdly, it was his understanding that the Sec-retariat of the United Nations had a single procedure forthe "registration" of treaties to which only States wereparties and for the "recording" of treaties to whichinternational organizations were parties. His delegation


would be grateful if the representative of the UnitedNations would confirm that understanding.12. Mr. BERMAN (United Kingdom), speaking on apoint of order, asked whether it was appropriate for anarticle to be discussed in the Committee of the Wholebefore the latter had decided that the article was prop-erly before it.13. The CHAIRMAN asked if the Committee of theWhole wished to give substantive consideration to arti-cle 80 and to consider the amendment proposed byEgypt.14. Mr. BERMAN (United Kingdom) said that he didnot wish his intervention to be regarded as an objectionto substantive consideration of article 80 by the Com-mittee. However, as a procedural matter, he was some-what perplexed by the situation which had arisen, in-asmuch as it was now seemingly proposed to reopensubstantive discussion of an article in respect ofwhich the Drafting Committee had already completedits deliberations. He wondered if the Chairman of theDrafting Committee could provide any clarification ofthe matter.15. The CHAIRMAN observed that under rule 28,subparagraph 2 (a), of the rules of procedure, the Com-mittee of the Whole could decide to give substantiveconsideration to a particular article of the basic pro-posal that had been referred directly to the DraftingCommittee, which was the case of article 80.16. Mr. AL-KHASAWNEH (Jordan), Chairman ofthe Drafting Committee, recalled that article 80 hadbeen referred directly to the Drafting Committee at thebeginning of the Conference. Since the article had nowbeen provisionally adopted by the Drafting Committee,which would shortly be called upon to report to theConference, it would greatly complicate matters if sub-stantive discussion of the article were reopened.17. Mr GAJA (Italy) said that it had always been hisunderstanding that Article 102 of the Charter of theUnited Nations applied also to treaties between Statesand international organizations. He suggested that therepresentative of the United Nations might be asked toclarify the matter.18. Mr. SZASZ (United Nations) said that within theSecretariat of the United Nations there were two pro-

cedures for the recording of a treaty: "registration" inaccordance with Article 102 of the Charter and theregulations adopted pursuant to that article, on the onehand, and application of the rules relating to the "filingand recording" of treaties not subject to that Article,on the other. The latter procedure applied equally tonon-member States, international organizations or anyother entity. It had existed at the time of adoption of the1969 Vienna Convention on the Law of Treaties,' whichwas why the International Law Commission had re-tained the language of that Convention for article 80 ofthe proposed new convention. From the Secretariat'spoint of view, the provision in article 80 of the 1969Vienna Convention had proved adequate, and a similarprovision would be adequate in the future convention.The differences in procedure existed only within theSecretariat, and no distinction was made betweentreaties to which States only were parties and othertreaties, either in their submission for registration orrecording or in their publication, since they appeared inthe same monthly statement and volume of the UnitedNations Treaty Series.

19. Mr. RAMADAN (Egypt) said that in the light ofthe explanations given by the representative of theUnited Nations, his delegation withdrew its amend-ment contained in document A/CONF.129/C.1/L.78.20. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) suggested that the future convention mightusefully reflect the practice of the Secretariat of theUnited Nations regarding the registration or filing andrecording of treaties involving States and internationalorganizations.21. Mr. BERMAN (United Kingdom) reiterated thathis delegation had not wished to make a formal ob-jection to the amendment proposed by Egypt, and rec-ognized the latter's right to request a reopening ofsubstantive discussion. However, he believed it wasappropriate for the Egyptian amendment to have beenwithdrawn.



30th meetingWednesday, 19 March 1986, at 10.25 a.m.


Consideration of the question of the law of treatiesbetween States and international organizations orbetween international organizations, in accordancewith General Assembly resolutions 37/112 of 16 De-cember 1982, 38/139 of 19 December 1983, 39/86 of13 December 1984 and 40/76 of 11 December 1985(A/CONF.129/4) and A/CONF.129/9)

[Agenda item 11] (concluded)


Annex (Arbitration and conciliation procedures estab-lished in application of article 66) (concluded)

1. The CHAIRMAN said he was informed that del-egations had not reached agreement on a text for arti-cle 66 and the annex which would command generalsupport. The Committee would therefore have to vote


on the various proposals for those provisions. In ac-cordance with rule 41 of the rules of procedure, it wouldvote in the following order on the amendments pro-posed to the International Law Commission's text forarticle 66: the Soviet Union proposal (A/CONF. 129/C.1/L.60), the proposal of Austria, Colombia, Ireland,Japan, Mexico, Netherlands, Nigeria and Switzerland(A/CONF. 129/C. 1/L.69/Rev.2) and the proposal by Al-geria, China and Tunisia (A/CONF. 129/C. 1/L.68). TheCommittee would not vote on the United Nations pro-posal (A/CONF. 129/C. 1/L.66), since no State had re-quested that.2. With regard to the proposal for amending the Com-mission's text of the annex, a decision on the So-viet Union's wording (A/CONF. 129/C. 1/L.61, para. 2)would depend on the decision taken on the SovietUnion's proposal for article 66 (A/CONF. 129/C. 1/L.60); the European Economic Community's proposal(A/CONF. 129/C. 1/L.64) would not be voted on, sinceno State had requested that; while the proposal by theSoviet Union for section 1, subparagraph 2 (b), of theannex (A/CONF. 129/C. 1/L.61, para. 1) and the pro-posal by the Netherlands (A/CONF. 129/C. 1/L.67) weredrafting matters which did not require a vote.

3. He invited the Committee to vote on the SovietUnion proposal for article 66 (A/CONF. 129/C. 1/L.60).

At the request of the representative of Japan, a rec-orded vote was taken.

In favour: Algeria, Angola, Bulgaria, ByelorussianSoviet Socialist Republic, Cuba, Czechoslovakia, Ger-man Democratic Republic, Hungary, Iran (IslamicRepublic of), Mozambique, Peru, Poland, Turkey,Ukrainian Soviet Socialist Republic, Union of SovietSocialist Republics, Venezuela, Yemen.

Against: Australia, Austria, Barbados, Belgium,Brazil, Canada, Chile, China,1 Colombia, Cyprus, Den-mark, Finland, Gabon, Germany, Federal Republicof, Greece, Holy See, Iceland, Ireland, Italy, Japan,Liechtenstein, Luxembourg, Mexico, Netherlands,New Zealand, Nigeria, Norway, Pakistan, Portugal,Spain, Sudan, Sweden, Switzerland, United Kingdomof Great Britain and Northern Ireland, United States ofAmerica, Yugoslavia.

Abstaining: Argentina, Bahrain, Burkina Faso, Ca-meroon, Congo, Cote d'lvoire, Egypt, France, Gua-temala, India, Indonesia, Iraq, Israel, Kenya, Kuwait,Madagascar, Malta, Morocco, Oman, Panama, Philip-pines, Qatar, Republic of Korea, Saudi Arabia, Sen-egal, Thailand, Tunisia, United Arab Emirates, VietNam, Zaire, Zambia.

The amendment proposed by the Soviet Union(AICONF.129IC.IIL.60) was rejected by 36 votes to 17,with 31 abstentions.4. Mr. WANG Houli (China) said that, owing to amisunderstanding, the vote recorded for his delegationhad related to the eight-Power proposal and not to theSoviet Union proposal. His delegation was in favour ofthe Soviet Union proposal for article 66.

1 See the statement by the delegation of China in paragraph 4below.

5. The CHAIRMAN invited the Netherlands repre-sentative to introduce the revised version of the eight-Power proposal (A/CONF. 129/C. 1/L.69/Rev.2).6. Mr. RIPHAGEN (Netherlands) said that the onlydifference between the new proposal and the one indocument A/CONF. 129/C. 1/L.69/Rev.l was the inser-tion of the words "or, where appropriate, the com-petent organ of the organization concerned" after thewords "Security Council" in the original proposedsubparagraph 2 (b). The new words were intended toprovide for the situation in which an international or-ganization requested an advisory opinion from the In-ternational Court of Justice. The insertion had beenmade at the request of a number of specialized agenciesand involved no substantive change.7. The CHAIRMAN invited the Committee to voteon the proposal of Austria, Colombia, Ireland, Ja-pan, Mexico, Netherlands, Nigeria and Switzerland(A/CONF. 129/C. 1/L.69/Rev.2).

At the request of the representatives of France andColombia, a vote was taken by roll-call.

Algeria, having been drawn by lot by the Chairman,was called upon to vote first.

In favour: Australia, Austria, Barbados, Belgium,Canada, Chile, Colombia, Cyprus, Denmark, Finland,Germany, Federal Republic of, Greece, Holy See, Ice-land, India, Ireland, Italy, Japan, Jordan, Kenya, Ku-wait, Lebanon, Liechtenstein, Luxembourg, Mexico,Netherlands, New Zealand, Nigeria, Norway, Paki-stan, Portugal, Republic of Korea, Spain, Sudan,Sweden, Switzerland, United Kingdom of Great Bri-tain and Northern Ireland, United States of America,Yugoslavia, Zambia.

Against: Algeria, Angola, Argentina, Bulgaria, Bur-kina Faso, Byelorussian Soviet Socialist Republic,China, Cuba, Czechoslovakia, Democratic People'sRepublic of Korea, Egypt, German Democratic Re-public, Hungary, Indonesia, Iran (Islamic Republic of),Mozambique, Peru, Poland, Tunisia, Turkey, Ukrai-nian Soviet Socialist Republic, Union of Soviet Social-ist Republics, Venezuela, Viet Nam.

Abstaining: Bahrain, Brazil, Cameroon, Congo,Cote d'lvoire, Ecuador, France, Gabon, Guatemala,Iraq, Israel, Madagascar, Malta, Morocco, Oman, Pa-nama, Philippines, Qatar, Saudi Arabia, Senegal, Thai-land, United Arab Emirates, Yemen, Zaire.

The amendment proposed by Austria, Colombia,Ireland, Japan, Mexico, the Netherlands, Nigeriaand Switzerland (AICONF.129IC.IIL.69/Rev.2) wasadopted by 40 votes to 24, with 24 abstentions.

8. The CHAIRMAN said that, in view of the result ofthe vote on the eight-Power proposal, the Committeewould not need to vote on the proposal by Algeria,China and Tunisia (A/CONF. 129/C. 1/L.68). Unless heheard any objection, he would take it that the Commit-tee of the Whole adopted article 66 as proposed by theInternational Law Commission and amended, as wellas the annex proposed by the Commission, and referredthem to the Drafting Committee together with the So-viet Union proposal for section I, subparagraph 2 (b),of the annex (A/CONF. 129/C. 1/L.61, para. 1) and the


Netherlands proposal for section III of the annex(A/CONF.129/C.1/L.67).

// was so decided.9. Mr. GILL (India) said that his delegation had votedin favour of the eight-Power amendment for the reasonsit had given in its statement at the 26th meeting ondisputes arising out of articles 53 and 64 of the draftconvention. Its vote indicated that it continued to be-lieve that there should be mandatory procedures for thesettlement of disputes, with recourse to arbitration orconciliation only with the consent of both parties.10. Mr. SAHOVIC (Yugoslavia) said that his delega-tion had voted in favour of the eight-Power amendmentbecause it contained two elements which it regarded asdecisive: a regime based on article 66 of the 1969 ViennaConvention on the Law of Treaties2, which Yugoslaviahad ratified without reservation and which provided forrecourse to the International Court of Justice, and theidea underlying the Commission's proposal.11. Mr. RASOOL (Pakistan) said that his delegationhad voted in favour of the eight-Power amendmentbecause it was in line with the corresponding provisionof the 1969 Vienna Convention. However, it reservedits position on subparagraph 2 (e) of the article, whichmade an advisory opinion of the International Court ofJustice binding. That situation was a departure fromnormal practice. While favouring a compulsory pro-cedure for articles 53 and 64 because of their sacrosanctnature, it was opposed to a binding character beingattributed to advisory opinions of the Court.

12. Mr. GUNEY (Turkey) said that his delegation'svote on the Soviet Union and eight-Power amendmentsreflected the views expressed in the statement it hadmade at the 26th meeting.13. Mr. TEPAVICHAROV (Bulgaria) said that hisdelegation had voted against the eight-Power amend-ment because it believed that a conference which wascodifying international law, and in particular dealingwith a problem such as the settlement of disputes,should adopt a regime which commanded general sup-port. In the view of his delegation, the decision to adoptthe eight-Power amendment amounted to denying theConference a valid text to consider on the settlement ofdisputes.14. Mr. ALM0D6VAR (Cuba) said that his delega-tion had voted against the eight-Power amendment onthe principle which it had maintained about article 66from the outset: that it could not accept any systeminvolving a compulsory supranational dispute proce-dure whereby decisions, the nature and scope of whichcould not be foreseen, could be imposed on the partiesto a dispute.

15. Mr. AL-KHASAWNEH (Jordan) said that hisdelegation had voted in favour of the eight-Poweramendment because it believed that a State party to atreaty was bound to resort to the settlement procedurefor which that proposal provided. The Conference


should reaffirm the principle of the sovereignty of inter-national law, on which his delegation's support for theamendment had been based. Any action which weak-ened that principle would be harmful to the interna-tional community as a whole.16. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) said that his delegation had voted against theeight-Power amendment because it believed that in re-gard to every dispute there should be agreement by allthe States concerned to refer the matter to a particularbody. Furthermore, the Conference was codifying gen-erally recognized rules of international law; it shouldnot, therefore, codify rules which were not recognizedby a majority of States, and the compulsory jurisdictionprocedure had been recognized by less than one third ofthe world's States.

17. Mr. KH ARM A (Lebanon) said that his delegationhad voted in favour of the system proposed in the eight-Power amendment because that regime was in line withthe one established by the 1969 Vienna Convention.However, it had reservations about the provision insubparagraph 2 (e) of the article.18. Mr. RODRIGUEZ CEDENO (Venezuela) saidthat his delegation had voted against the eight-Poweramendment since it considered that the procedure forthe settlement of international disputes should, irre-spective of the nature of the dispute, be based on theconsent of all the parties concerned. In addition, itquestioned whether the advisory opinions of the In-ternational Court of Justice could be considered asbinding. It maintained the views which it had expressedat the 26th meeting.19. Mr. PALOMO (Guatemala) said that his del-egation had abstained from voting on the eight-Poweramendment because it considered that the procedureestablished for determining the content of peremptorynorms of international law was purely formalistic andwould not enable the nature, scope and essence of thosenorms to be determined with any clarity or precision.Furthermore, his delegation had serious reservationsabout the advisability of providing for an arbitration orconciliation procedure which imposed a decision on theparties concerned.20. Mr. MORELLI (Peru) said that the regime whichthe Committee had adopted, with its provision for com-pulsory jurisdiction, would hamper the exercise byStates of sovereignty in choosing the most suitablemeans of settling disputes peacefully. What had been areasonable proposal to set up machinery for that pur-pose had been distorted by the Committee's decision,in accordance with which an ultra vires and mandatorycharacter was imparted to institutions to which theinternational community had not given that character,such as conciliation, arbitration and the advisory opin-ion procedure of the International Court of Justice. Inthe case of arbitration, the purpose of the institutionwas to settle disputes through arbitrators appointed bythe parties acting in accordance with the law. Con-sequently, it was a legal procedure involving the impar-tial application of rules binding on both parties, and thebinding force of those rules arose from the fact that twoor more States, in the full exercise of their sovereignty,agreed to submit the dispute to arbitral settlement. It


was regrettable that the adoption of the eight-Poweramendment did not attempt to reconcile the variouspoints of view which existed about the settlement-of-disputes provisions, and that it did not reflect the spiritof established norms, such as those of the 1969 ViennaConvention. It was likely that the considerable numberof States participating in the Conference whose viewshad been ignored would enter reservations to the con-vention or find themselves unable to ratify it. In hisdelegation's opinion, the adoption of the eight-Poweramendment did not mean that the rule it contained wassufficiently accepted by the international community tomake a contribution to the progressive development ofinternational law.21. Mr. RASSOLKO (Byelorussian Soviet SocialistRepublic) said that his delegation had voted againstthe eight-Power amendment because that proposal en-visaged an arbitration and conciliation procedure in-compatible with his country's position on the matter,namely, that in every case of a dispute, all the partiesconcerned should agree beforehand to submit the dis-pute to the International Court of Justice. Furthermore,an international organization could not legally haverecourse to the Court because, according to the Statuteof the Court, only States could be parties to a case dealtwith by that body.22. Mr. POEGGEL (German Democratic Republic)said that his delegation could not accept a compulsoryjurisdiction procedure in respect of disputes involvingjus cogens. In view of the legal importance and politicalnature of jus cogens, the settlement of such disputesshould not be left to a so-called neutral body.23. Mr. AL-MUBARAKY (Kuwait) said that the re-gime adopted by the Committee constituted a step for-ward, and one which was in conformity with article 66of the 1969 Vienna Convention.24. Mr. RADY (Egypt) said that his delegation hadvoted against the eight-Power amendment because itwas convinced that there had to be agreement betweenthe parties to a dispute about the means to be adopted tosettle it. The means must not itself be a subject fordispute.25. Mr. FISCHER (Holy See) said that his delegationhad voted in favour of the eight-Power amendmentbecause it reflected the position taken for centuries bythe Holy See in regard to the settlement of disputes.Popes had acted as arbitrators or conciliators for over athousand years, and in many cases had peacefully set-tled disputes which would otherwise have led to war.His delegation was convinced that the law was sover-eign and that compulsory machinery was needed tosettle disputes arising from matters regulated by theproposed convention.

26. Mr. LE BA CAP (Viet Nam) said that his delega-tion had voted against the eight-Power amendment be-cause it believed strongly in the need for direct negotia-tions between the parties to a dispute in regard to theselection of the means of settling it.

27. Mr. SZASZ (United Nations) said that para-graphs 9 and 14 of the annex to the draft conventionprovided that the expenses of arbitral tribunals andconciliation commissions established in pursuance of

the annex would be borne by the United Nations. Itwould therefore be necessary for the United NationsGeneral Assembly to take note of and approve theprovisions of those paragraphs. The United Nationswould submit a draft resolution to the Conference in-viting it to request the General Assembly to take thataction.'

Article 81 (Signature)

Article 82 (Ratification or act of formal confirmation)

Article 83 (Accession)

Article 84 (Entry into force)

Article 85 (Authentic texts)

28. Mr. NETCHAEV (Union of Soviet Socialist Re-publics), introducing his delegation's proposal for thefinal clauses of the draft convention (A/CONF.129/C.1/L.76 and Corr.l), said that it sought to distinguishbetween States and international organizations as sub-jects of international law.29. In principle, his delegation could accept the text ofthe final clauses proposed by Brazil, Cameroon, Egypt,India and Yugoslavia (A/CONF.129/C.1/L.79), but itcould not approve the provision in that proposal whichwould allow international organizations to sign the fu-ture convention. The reasons for that were, first, thatthe purpose of the present Conference was codifica-tion , and there had never been a codification confer-ence at which international organizations, participatingat the invitation of States and the General Assembly,had signed the text of a convention elaborated byStates; secondly, since the decisions taken at thepresent Conference were adopted by voting or otherprocedures in which observers could not participate, itwould be appropriate for the draft convention to con-tain a provision whereby international organizationscould accede to the convention at any time, even beforeit entered into force.

30. Mr. RAMADAN (Egypt), introducing theproposal for the final clauses submitted by Brazil,Cameroon, his own country, India and Yugoslavia(A/CONF.129/C.1/L.79), said that it was necessary,from both the legal and the procedural points of view,formally to place before the Committee the text of thedraft final clauses which the General Assembly hadreferred to the Conference in annex III to resolution40/76. The five Powers which sponsored the proposalbelieved that the text in question was suitable for use inthe draft convention because it was based on the 1969Vienna Convention and because it took into considera-tion the interests of all those concerned. For example,article 81, subparagraph (c), provided that the conven-tion would be open for signature by international organ-izations which had been invited to participate in theConference, and article 84, paragraph 1, provided thatthe entry into force of the convention depended uponthe deposit of a specific number of instruments of rat-ification or accession by States or by Namibia.

3 Subsequently circulated as document A/CONF.129/L.4.


31. He was authorized by the delegations of the coun-tries of the Group of 77 to state that they endorsed thetext of the final clauses reproduced in the attachment tothe note by the Secretary-General circulated to theConference under the symbol A/CONF. 129/9. The fivePowers proposed that in article 84, paragraph 1, thenumber of instruments of ratification or accession re-quired for the entry into force of the convention shouldbe 25. That text should therefore be completed by theinsertion of the word "twenty-fifth" before the word"instrument" in that paragraph.32. Mr. YIN Yubiao (China) supported the proposalthat the required number of instruments of ratificationor accession should be 25.33. Mr. BERMAN (United Kingdom) introduced theamendment proposed by his delegation and that of theNetherlands (A/CONF. 129/C. 1/L.80) to the five-Powerproposal for article 84 as orally amended by its spon-sors. He said that the requirement of 35 instruments ofratification or accession by States or by Namibia sug-gested by the United Kingdom and the Netherlands wasthe same as the corresponding requirements of the 1969Vienna Convention. The proposed requirement of fiveinstruments for acts of formal confirmation or acces-sion by international organizations represented roughlythe same ratio of instruments to the number of suchorganizations as the figure of 35 represented to the totalnumber of States members of the international com-munity eligible to become parties to the future con-vention.

34. The CHAIRMAN invited the Committee to voteon the proposals by the Soviet Union (A/CONF. 129/C.1/L.76 and Corr.l), the Netherlands and the UnitedKingdom (A/CONF. 129/C. 1/L.80) and Brazil, Cam-eroon, Egypt, India and Yugoslavia (A/CONF. 129/C. 1/L.79), as completed orally by its sponsors. In accord-ance with rules 41 and 42 of the rules of procedure, theproposals should be voted on in that order.35. Mr. BERMAN (United Kingdom) requested thatthe proposed final clauses should be voted upon articleby article.36. The CHAIRMAN said that, unless he heard anyobjection, he would take it that the Committee agreedto that request.

// was so decided.Article 81At the request of the representative of Egypt, a vote

was taken by roll-call on the Soviet Union proposal(AICONF.129IC.IIL.76).

The Federal Republic of Germany, having beendrawn by lot by the Chairman, was called upon to votefirst.

In favour: Bulgaria, Byelorussian Soviet SocialistRepublic, Cuba, Czechoslovakia, Democratic People'sRepublic of Korea, German Democratic Republic,Hungary, Poland, Romania, Ukrainian Soviet SocialistRepublic, Union of Soviet Socialist Republics, VietNam.

Against: Australia, Austria, Barbados, Belgium,Brazil, Cameroon, Canada, Chile, Colombia, Den-

mark, Egypt, Finland, France, Gabon, Germany,Federal Republic of, Greece, Guatemala, Holy See,Indonesia, Ireland, Italy, Japan, Liechtenstein,Luxembourg, Malta, Mexico, Netherlands, NewZealand, Nigeria, Norway, Pakistan, Portugal, Spain,Sudan, Sweden, Switzerland, United Kingdom ofGreat Britain and Northern Ireland, United States ofAmerica, Yugoslavia, Zambia.

Abstaining: Algeria, Angola, Argentina, Bahrain,Burkina Faso, China, Congo, Cdte d'lvoire, Cyprus,Ecuador, India, Iran (Islamic Republic of), Iraq, Israel,Jordan, Kenya, Kuwait, Lebanon, Madagascar, Mo-rocco, Mozambique, Oman, Panama, Peru, Philippi-nes, Qatar, Republic of Korea, Saudi Arabia, Senegal,Thailand, Tunisia, Turkey, United Arab Emirates,Venezuela, Yemen, Zaire.

The text proposed by the Soviet Union for article 81was rejected by 40 votes to 12, with 36 abstentions.37. The CHAIRMAN said that, in view of the result ofthe vote, he would take it, unless he heard any objec-tion, that the Committee adopted the text of article 81proposed by Brazil, Cameroon, Egypt, India andYugoslavia in document A/CONF. 129/C. 1/L.79.

// was so decided.Article 82

At the request of the representative of Egypt, a votewas taken by roll-call on the Soviet Union proposal(A/CONF. 129/C. 1IL. 76).

Qatar, having been drawn by lot by the Chairman,was called upon to vote first.

In favour: Bulgaria, Byelorussian Soviet SocialistRepublic, Cuba, Czechoslovakia, Democratic People'sRepublic of Korea, German Democratic Republic,Hungary, Poland, Romania, Ukrainian Soviet SocialistRepublic, Union of Soviet Socialist Republics, VietNam.

Against: Australia, Austria, Belgium, Brazil, Cam-eroon, Canada, Chile, Colombia, Denmark, Egypt,Finland, France, Gabon, Germany, Federal Republicof, Greece, Guatemala, Holy See, Indonesia, Ireland,Italy, Japan, Kenya, Liechtenstein, Luxembourg,Malta, Mexico, Netherlands, New Zealand, Nigeria,Norway, Pakistan, Portugal, Senegal, Spain, Sudan,Sweden, Switzerland, United Kingdom of Great Bri-tain and Northern Irland, United States of America,Yugoslavia, Zambia.

Abstaining: Algeria, Angola, Argentina, Bahrain,Barbados, Burkina Faso, China, Congo, C6te d'lvoire,Cyprus, India, Iran (Islamic Republic of), Iraq, Israel,Jordan, Kuwait, Lebanon, Madagascar, Morocco,Mozambique, Oman, Panama, Peru, Philippines,Qatar, Republic of Korea, Saudi Arabia, Thailand,Tunisia, Turkey, United Arab Emirates, Venezuela,Yemen, Zaire.

The text proposed by the Soviet Union for article 82was rejected by 41 votes to 12, with 34 abstentions.

38. The CHAIRMAN said that, in view of the result ofthe vote, he would take it, unless he heard any objec-tion, that the Committee adopted the text of article 82


proposed by Brazil, Cameroon, Egypt, India andYugoslavia in document A/CONF.129/C.1/L.79.

It was so decided.Article 83

39. The CHAIRMAN noted that the proposal of theSoviet Union (A/CONF.129/C.1/L.76) and that of thefive Powers (A/CONF.129/C.1/L.79) contained iden-tical texts for article 83. If he heard no objection, hewould take it that the Committee adopted the text inquestion.

It was so decided.Article 84

40. Mr. BERMAN (United Kingdom) withdrew theproposal made by the Netherlands and the UnitedKingdom (A/CONF.129/C.1/L.80).41. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) moved the suspension of the meeting in orderto allow delegations to engage in informal consultationson the number of instruments of ratification or acces-sion to be specified in article 84, paragraph 1. In allother respects the texts of the two proposals before theCommittee for article 84 were identical.

The meeting was suspended at 12.15 p.m. and re-sumed at 12.40 p.m.42. Mr. RAMADAN (Egypt), speaking on behalf ofthe sponsors of the proposal in document A/CONF. 129/C.1/L.79, as completed orally, said that in the informalconsultations which had just been held delegations hadagreed that the number of instruments of ratification oraccession to be stipulated in article 84, paragraph 1,should be 35. The sponsors therefore amended theirproposal by replacing the word "twenty-fifth" in thatparagraph by the word "thirty-fifth".43. Mr. TEPAVICHAROV (Bulgaria) said that themembers of the East European group of countries ap-proved the amendment proposal.44. Mr. NETCHAEV (Union of Soviet Socialist Re-publics) agreed. He suggested that the Committeeshould not now take separate decisions on articles 84and 85.45. The CHAIRMAN said that, if he heard no objec-tion, he would take it that the Committee adopted thewording for articles 84 and 85 at present before it, withthe word "thirty-fifth" inserted before the word "in-strument" in paragraph 1 of article 84, and that it re-ferred articles 81 to 85 to the Drafting Committee.

It was so decided.46. Mr. BERMAN (United Kingdom) said that hisdelegation's participation in the general agreement onthe provisions which had just been adopted reflectedthe spirit in which lengthy negotiations had been con-ducted on the final clauses of the proposed conventionbefore the Conference had taken place. The distinctiondrawn between the international organizations referredto in subparagraph 1 (c) of article 81 and in article 82, onthe one hand, and those referred to in article 83, on theother—between those international organizations in-vited to participate in the present Conference and otherinternational organizations—was highly convenient,

but did not necessarily correspond to all the aspects oftreaty-making covered by the draft convention. It wasarticle 83 which contained a reference to treaty-makingcapacity and corresponded to normal practice in thatregard. His delegation understood the wording of arti-cles 81 to 85 adopted by the Committee of the Whole asnot introducing any departure in substance from thearticles so far adopted by the Conference in plenarysession.

Adoption of the report of theCommittee of the Whole

47. Mrs. THAKORE (India), Rapporteur, intro-ducing the report of the Committee of the Whole(A/CONF. 129/C. 1/L.74 and Add. 1-5,7-8), said that thesections of the report relating to article 66 and the annexand to the final clauses were not yet available, sincethose provisions had only just been adopted by theCommittee. It was her intention to report on the Com-mittee's deliberations on article 66 and the annex(see A/CONF. 129/C. 1/L.74/Add.6 and Corr.l) andon the proceedings relating to the final clauses (seeA/CONF. 129/C. 1/L.74/Add.9).48. The report consisted of three chapters. Chapter IIconstituted the major part of the report and describedthe work of the Committee on agenda item 11. TheCommittee had examined 23 articles of the basic pro-posal requiring substantive consideration, the annexentitled "Arbitration and conciliation procedures es-tablished in application of article 66" and proposals fora new article. In addition, it had prepared the preambleand the final clauses of the convention. The Conferencehad referred the remaining articles of the basic pro-posal directly to the Drafting Committee. The resultsof the work of the Drafting Committee were containedin that Committee's reports (A/CONF. 129/11 andAdd. 1-3) and did not form part of the report of theCommittee of the Whole.

49. The report of the Committee of the Whole wasdesigned to be read in conjunction with the summaryrecords of its meetings. Delegations were requested todraw the secretariat's attention in writing, as soon aspossible, to any inaccuracies which the report con-tained.50. The CHAIRMAN thanked the Rapporteur for herstatement. He suggested that the Committee, in orderto avoid holding a meeting exclusively for the purposeof adopting the two outstanding portions of the report,should entrust the Rapporteur with the task of com-pleting those portions with the help of the secretariatand in accordance with the pattern she had followed forthe rest of the report; and that it should adopt the reportin that form.

It was so decided.51. The CHAIRMAN said that, with the adoption ofits report, the Committee of the Whole had now com-pleted its work. He paid tribute to the other officersand to the members of delegations and the secretariatfor their contribution to the successful outcome of theCommittee's proceedings.


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