조약법-유엔국제법위원회685차회의록 이시우 2006/05/11 662

http://untreaty.un.org/ilc/documentation/english/a_cn4_sr685.pdf

A/CN.4/SR.685
Summary record of the 685th meeting
Extract from the Yearbook of the International Law Commission:-
1963
Document:-
vol. I ,
Topic:
Law of Treaties
Copyright ?United Nations
Downloaded from the web site of the International Law Commission
(http://www.un.org/law/ilc/index.htm)
685th meeting – 22 May 1963 73
73. The hypothetical case dealt with in paragraph 3
seemed somewhat academic, since it involved giving
an interpretation of a situation which might arise in
other cases, in which the basic norms were not relevant.
An interpretation of general treaties which did not deal
with the problem of the exceptional basic norms might
raise similar difficulties; besides, the effect of the disappearance
of certain clauses on the balance of the treaty
ought also to be considered. Those were general questions
which need not necessarily be dealt with in article 13.
He was therefore in favour of deleting paragraph 3.
74. In the light of the explanations given about paragraph
4, it would clearly be better to deal with that
matter in the commentary.
75. While the discussion had been most interesting, he
thought the time had come to refer article 13 to the
Drafting Committee.
76. Mr. YASSEEN said the was convinced of the existence
of jus cogens, which was a concept of positive law.
The existence of jus cogens rules had been explained
by reference to natural law; but it could be easily explained
within the framework of positive law. For there was no
doubt that States themselves could change the content
of jus cogens. Paragraph 4 was therefore of some value,
if only because it showed that jus cogens was a concept
of positive law.
77. Paragraph 1 of article 13 merely stated the consequences
of an infringement of jus cogens rules. It provided
no guidance for recognizing the existence of a peremptory
rule. It contained no substantive definition of jus
cogens, and no criterion for distinguishing rules having
the character of jus cogens from rules of jus dispositivum
- optional or dispositive rules.
78. In the absence of any substantive definition and
of any criteria, paragraph 2 was thus essential. The
content of the concept of jus cogens should certainly
be stated in the article by means of clear and precise
examples, either those given by the Special Rapporteur
or perhaps those mentioned by other members, so that
States could refer to the content of jus cogens in international
practice.
79. He had not changed his views on paragraph 3.
International treaties should be safeguarded so far as
possible, and paragraph 3 did so by making provision
for the voiding of part of a treaty.
The meeting rose at 1 p.m.
685th MEETING
Wednesday, 22 May 1963, at 10 a.m.
Chairman: Mr. Eduardo JIMENEZ de AR&CHAGA
Law of Treaties (A/CN.4/156 and Addenda)
[Item 1 of the agenda] {continued)
1. The CHAIRMAN invited the Commission to continue
consideration of article 13 in section II of the Special
Rapporteur’s second report (A/CN.4/156).
ARTICLE 13 (TREATIES VOID FOR ILLEGALITY) (continued)
2. Mr. ROSENNE said he thoroughly approved of the
trend of opinion which had emerged during the discussion
in favour of simplifying paragraph 1 by combining
it with the definition in article 1, paragraph 3 (c), and
dropping the term “jus cogens”.
3. Jus cogens was a technical term which was not easy
to explain to a non-jurist, and it should be remembered
that the articles were going to be applied in very different
circumstances by very different people. They would
also have to be translated into several languages besides
the official languages of the United Nations. The articles
should be as clear and as self-contained as possible,
even at the expense of elegantia juris.
4. The concept of jus cogens had existed in international
law for a long time, even if in inchoate form. There were,
however, profound differences of opinion as to the
reasons for its existence and the foundations on which
it rested; some based it on positive law, others on natural
law, while yet others attributed to it a higher or even
divine origin. But on one point there was general agreement
- namely, that the concept of jus cogens expressed
some higher social need. In principle, all legal rules
were equal; the very concept of jus cogens, therefore, was
a derogation from a fundamental legal principle. Ultimately,
it was more society and less the law itself which
defined the content of jus cogens.
5. In practice, the whole of article 13 would be given a
restrictive interpretation, not only by courts, but also by
other law-applying organs, such as political organs of
the United Nations. There were two reasons for that:
first, the article restricted freedom of contract, which
was a fundamental principle of international law and
indeed of international relations; secondly, it provided
that treaties concluded in violation of its provisions were
null and void. It was therefore essential to balance the
rule embodied in the article with another fundamental
principle of international law, which appeared in the
United Nations Charter itself as a jus cogens principle:
pacta sunt servanda.
6. In view of the wide philosophical differences that had
emerged from the discussion, it was essential to retain
the examples given in paragraph 2. In spite of their differences
on other points, all members were agreed that
those examples were illustrations of jus cogens principles.
They differed on what additional principles should be
included; their differences, however, were a warning of
the difficulties which could be expected to arise in the
application of article 13 and which must on no account
be ignored. If the article was to have proper effect, it
was essential that all those engaged in treaty-making,
and in particular all international lawyers, should have
a clear idea of what was meant by jus cogens, and an
idea that was not merely philosophical or theoretical. A
non-exhaustive list of examples should therefore be included
in the article itself and nor merely in the commentary,
even at the risk of inelegant drafting.
7. He believed, moreover, that it was possible to establish
objective criteria for determining whether a particular
rule of international law had the character of jus cogens.
74 Yearbook of the International Law Commission, Vol. I
In that connexion, he agreed with Mr. Tunkin that the
distinction between ” general rules of international law ”
and ” general principles of international law ” was not
of any great importance, though there was an advantage
in retaining both expressions.
8. It was significant that the three examples given by the
Special Rapporteur in paragraph 2 had at least two
features in common. First, they were all embodied in
some form or another, partly or wholly, in an international
instrument; secondly, they had all been applied
by courts, including the International Court of Justice,
and other organs. For example, the rule stated in subparagraph
(a) was contained in article 2, paragraph 4,
of the United Nations Charter; it derived from the Pact
of Paris1 and had been applied by the Nuremberg
Tribunal as jus cogens, and by the International Court
of Justice in part of its judgement in the Corfu Channel
case.2 The rules stated in sub-paragraphs (b) and (c)
had been applied by the Nuremberg Tribunal and other
courts as existing international law and as jus cogens,
though they might have a remote conventional origin in
The Hague Conventions of 1899 and 1907. They had
been reformulated by the International Law Commission
and adopted by the General Assembly. The words of
Sir Gerald Fitzmaurice, the United Kingdom representative,
later a member of the International Law
Commission and now a judge at the International Court,
to the Sixth Committee on 3 November 1950 were very
apposite: “Whatever views might be taken about the
situation before the Charter of Nuremberg, the existing
position was perfectly clear and no one doubted that the
Nuremberg principles had become recognized principles
of international law. The affirmation by the General
Assembly was sufficient to make them so, so far as the
Member States of the United Nations were concerned.” 3
9. In its advisory opinion on Reservations to the Convention
on the Prevention and Punishment of the Crime
of Genocide, the International Court of Justice had
established the jus cogens duty of all States to co-operate
in the suppression of genocide, holding that that duty
was quite independent of the Genocide Convention itself
and derived from the General Assembly resolutions
on the subject.4
10. He had been much impressed by Mr. Tunkin’s
remarkable statement at the 682nd meeting in which he
had viewed the second world war as a santion: the
coalition against the aggressors had actually been called
the United Nations during that war and the United
Nations of today was its successor.
11. He therefore believed that there existed elements
which made it possible to determine with a reasonable
degree of accuracy whether a given rule constituted jus
cogens, bearing in mind that, especially where detailed
rules were concerned, the question would have to be
decided on the individual merits of each case.
1 League of Nations, Treaty Series, vol. 94, p. 57.
8 I.CJ. Reports, 1949, p. 35.
8 Official Records of the General Assembly, Fifth Session, Sixth
Committee, 233rd meeting, para. 5.
4 I.CJ. Reports, 1951, p. 23.
12. He was not, of course, prepared to say that every
General Assembly resolution, even those which constituted
declarations, had per se the character of jus
cogens. However, he certainly accepted the view that
General Assembly resolutions could have some legal
effect, though its precise extent would vary from case
to case, and he was glad to note that there was an
increasing body of legal opinion which agreed with that
view. But having regard to the peremptory effect on
treaties of the provisions of article 13, together with the
presumed restrictive interpretation which that article
would be given, it was essential not to work on the
assumption that every General Assembly resolution -
even when in the form of a declaration – constituted
jus cogens.
13. Other objective criteria could be found. For instance,
it was significant that discussion on the admissibility of
reservations at conferences convened to draft multilateral
conventions had largely revolved round the question of
determining how far derogation from their provisions
was permissible. A convention that permitted reservations
to any of its clauses did not embody any jus cogens
rule. If a convention prohibited reservations to some of
its articles, there was a strong presumption that the contents
of those articles constituted jus cogens with regard
to the matter covered by the convention.
14. His conclusion was that it was necessary to include
in article 13 a number of carefully chosen, adequately
formulated and generally accepted examples. Subject,
therefore, to drafting changes, he accepted paragraph 2,
but urged the Commission to take a decision on the
issue of principle before the article was referred to the
Drafting Committee. If the examples were omitted, not
only article 13 but the whole draft would become unworkable,
unreal and unacceptable to governments.
15. He had not been convinced by the arguments
adduced in support of paragraph 3, which might even
contain a contradiction in terms. However, in view of
the Chairman’s proposal that that paragraph should be
considered in connexion with article 26 on the severance
of treaties, he would not elaborate further on the
point.
16. With regard to the conflict between jus cogens and
the pacta sunt servanda rule, he suggested that a treaty
could only be considered void under a rule of international
law which had the character of jus cogens and
which had been in existence at the time when the treaty
was concluded. He did not believe that, at that stage,
the Commission could countenance the view that a
treaty which had been validly concluded could become
void under a new rule which had come into existence
subsequently. The process of change in the rules of
international law having the character of jus cogens
should be carefully studied. In some areas, rules could
change imperceptibly and modifications of old rules, or
entirely new rules, could take many decades to become
established. In other articles of the draft, the Special
Rapporteur had dealt with the effects on a treaty of
subsequent changes in the law. It was essential to confine
the provisions of article 13 to rules having the character
of jus cogens at the time when the treaty was concluded.
685th meeting – 22 May 1963 75
17. He also wished to reserve his position regarding
paragraph 4, the wording of which could be construed,
although that was certainly not the intention of its
author, as enabling changes to be brought about otherwise
than by formal amendment of the Charter in the
case of rules having the character of jus cogens and
emanating from the Charter.
18. Lastly, with regard to the position of article 13 in
the draft, he had not been convinced by his critics. The
contents of article 13 had no connexion at all with
articles 11 and 12. Article 13 stated the cases in which a
treaty was void and the consequences of voidance. It
had been said that, in municipal codes, an article of
that type would appear immediately after the articles on
vitiation of consent. But there were some fundamental
differences between international law and municipal law:
the first was that international law was based on the
principle of good faith; the second had been stated in
very clear terms by the International Court of Justice
in the Right of Passage Case, in its judgement of
26 November 1957 on the Preliminary Objections: “It
is a rule of interpretation that a text emanating from a
Government must, in principle, be interpreted as producing
and as intended to produce effects in accordance
with existing law and not in violation of it.” 5 Apart
from these two differences, it should also be remembered
that, unlike international law, municipal law was applied
under the control of judges and courts.
19. Mr. de LUNA said he had listened with interest to
Mr. Rosenne’s statement, which reflected the speaker’s
uneasiness over the widely different views of members
of the Commission on the philosophical bases of jus
cogens. It was generally acknowledged that jus cogens
formed part of positive law; it was disagreement over the
content of positive law which was the source of the
difficulty. If the term ” positive law ” was understood to
mean rules laid down by States, then jus cogens was by
definition not positive law. But if ” positive law ” was
understood to mean the rules in force in the practice of
the international community, then jus cogens was indeed
positive law. But surely, however divided opinion might
be among its members, the Commission should set an
example of peaceful coexistence in the domain of international
law and adopt the ideas shared by the majority
of its members.
20. As to the problem raised by paragraph 4, he thought
that paragraph should be omitted.
21. Mr. Rosenne seemed to think that paragraph 3 was
unsatisfactory because of the development of jus cogens.
Actually, the reason for the change in jus cogens was
that the legal conscience of the international community
had progressed. A situation which had come into being
wrongfully should disappear. Nor should that give any
cause for anxiety, for international law was moving
forward, not backward. He believed in the progress of
humanity; the new principles of jus cogens which would
be accepted in the future would certainly constitute an
advance, and not a negation of the rules of the existing
jus cogens.
8 I.CJ. Reports, 1957, p. 142.
22. Mr. AGO said he wished to clear up certain points,
so that no misunderstanding would remain when article
13 was referred to the Drafting Committee.
23. Mr. Rosenne’s statement had left him rather perplexed,
for he had not had the impression that opinion
in the Commission was really divided on the concept
of jus cogens or peremptory rules. He thought the Commission
had recognized that the rules in question were
general rules from which no derogation was permissible,
even by private agreement between two or more parties.
Peremptory rules might be customary or even of conventional
origin, provided that they had become general
rules in the true sense of the term. They must accordingly
be valid for all the members of the international community,
and in particular they must be valid as customary
rules for States which were not parties to the treaty
laying them down.
24. It would be quite wrong to say that the United
Nations Charter contained only jus cogens rules; but
the contrary conclusion should also be avoided. Really
peremptory rules were rare, and it was unlikely that
they would ever be very numerous in international law.
25. On the question of the legal status of resolutions of
the General Assembly, he felt bound to agree with
Mr. Rosenne that they were not jus cogens. In fact the
question did not even arise. The resolutions were not
in themselves a source of international law, and hence
could certainly not be the source of peremptory rules.
26. The idea expressed in article 13 was not entirely
new. While it was true that some writers of the nineteenth
and even of the early twentieth century had inclined to
the view that in international law every rule was a
dispositive rule, and while there was no doubt that the
peremptory nature of certain principles had been affirmed
mainly in recent times, he did not think that the concept
of jus cogens or peremptory norms had been unknown
to international law before the first world war. Some
of the rules of the law of the sea, for example, which had
come to be regarded as peremptory in modern times,
had been peremptory in the nineteenth century, and even
earlier.
27. Mr. Rosenne had raised the important question
whether a rule of international law which became
peremptory at a particular time affected only treaties
concluded thereafter, or whether treaties concluded previously
could be rendered invalid by such a rule. In the
first place, he (Mr. Ago) thought it was wrong to speak
of retrospective effect in the particular context. Secondly,
a rule could not be described as peremptory if it allowed
treaties to subsist which were contrary to its content,
for that would be a contradiction in terms. He agreed
with Mr. Rosenne, however, that it might be dangerous
to state that idea too positively; he had mentioned it
only because the contrary idea had been put forward.
He did not think that the Commission should commit
itself on that point in an article. The question should
be settled by interpretation and practice, for the Commission’s
main concern should be to safeguard the
existence of treaties.
28. Mr. TUNKIN said that Mr. Rosenne had drawn
attention to the fact that members were not agreed on
76 Yearbook of the International Law Commission, Vol. I
the philosophical explanation of jus cogens and the
sources from which it proceeded. But as Mr. Ago had
pointed out, there was no disagreement on the juridical
nature of jus cogens. The important point was that all
members agreed on the practical issues that a rule
having the character of jus cogens was one from which
States could not contract out, and that such rules existed.
There might be differences of opinion regarding the
philosophical explanation of international law as a
whole, or of different problems of international law.
The essential point in the present discussion was that
the Commission was engaged in the formulation not of
a theoretical treatise, but of a draft convention. Members
would not, of course, be able to agree on theoretical or
philosophical issues; still less could they expect States to
agree on such issues.
29. Mr. Rosenne appeared to have misunderstood him
with regard to the second world war. He had never
viewed that war as a sanction. He completely rejected
the Kelsen doctrine and had never considered war as a
sanction at all. In fact, he believed that even the old
international law had never properly regarded war as
a sanction.
30. He also regretted that the question of the legal
effect of General Assembly resolutions had been raised.
That question was not germane to the discussion, but
since it had been raised, he felt obliged to state that on
the whole he shared the views expressed by Mr. Ago
and not those of Mr. Rosenne. The Charter, which
constituted the basic document for the interpretation
of resolutions of the General Assembly, made it quite
clear that those resolutions did not impose legal obligations
upon States. It was highly dangerous, and could
do nothing but harm, to read into the Charter what
was not there, especially with regard to General Assembly
resolutions. To claim that such resolutions could impose
obligations amounted to asserting the existence of a
process of international legislation; that would alter
the very nature of the United Nations. He agreed with
Mr. Ago that General Assembly resolutions had their
own place in the formation of rules of international law,
but that they could never bring the law-making process
in international law to completion. Rules of international
law could only be established by custom or treaty.
31. Mr. YASSEEN said that, like Mr. Ago, he thought
it could hardly be admitted that jus cogens rules and
rules which contradicted them could exist simultaneously.
The consequence of the formation of a new peremptory
norm should be the voiding of all pre-existing rules
incompatible with the new one. That was not a retrospective
effect, but the immediate effect of the peremptory
norm.
32. As to the force in law of General Assembly resolutions,
although those resolutions were not a direct
source of international law, they had an undeniable
effect on the international legal order. An example had
been given at the last session of the General Assembly
in connexion with the 1960 resolution on colonialism.
Some representatives had argued that resolutions of the
General Assembly were merely recommendations, and
that in consequence the 1960 resolution on colonialism
did not end the validity of the allegedly customary rules
on which the colonial system was based. He had contended
that the General Assembly resolution in question
was the expression of the general opinion of States and
could be regarded as proof of the disappearance of the
psychological element indispensable for the maintenance
of customary rules. Resolutions of the General Assembly,
especially when they were adopted unanimously or
almost unanimously, unquestionably testified to a development
in world opinion which in certain cases could
indirectly determine the desuetude of a rule of international
law.
33. Mr. BARTO& said that Mr. de Luna’s remarks
at the previous meeting were a little embarrassing, for
they suggested either that he had expressed himself
badly or that he had been misunderstood. Far from
being a metaphysician, he did not believe in the existence
of an international legal order of abstract and absolute
value which was imposed by the nature of things or which
was constant. He was convinced that the international
public order was merely the superstructure of the international
community which resulted from the evolution of
international society. It was the minimum of rules of
conduct necessary to make orderly international relations
possible.
34. He fully agreed with Mr. Ago, even though his
reasoning might be different, that jus cogens did not
necessarily originate in the United Nations; the Charter
had given expression to certain ideas which had appeared
simultaneously with a number of new possibilities. In
every age, every international community had its public
order, its peremptory norms. The norms were continually
changing; the Charter did not mark the end of a process
of evolution, but merely a stage in that process.
35. With regard to what had been wrongly called the
retrospective effect of peremptory rules, he also shared
Mr. Ago’s view. New rules of public order became
operative as from their acceptance and they produced
an immediate effect on treaties concluded earlier. If
that were not the case, there could be no progress. At
the Danube Conference of 1948, for example, the representatives
of certain States had raised the question of
acquired rights.6 Moreover, two great principles had
been proclaimed by the Conference – namely, the right
of riparian States to be sole administrators of the international
waterway and the equality of flags in navigation.
7 The problem was outside the scope of the present
discussion, but it was pertinent to mention that rights
acquired under pre-existing treaties were valid so long
as the order under which those treaties had been concluded
subsisted; if the order changed, those so-called
acquired rights should be extinguished or amended. In
such a case – on the assumption, of course, that the
change was due to evolution and not revolution – all
jurists were agreed that the existing order should be
preserved until after any such radical changes had
occurred, when there must be a period of adjustment
6 Conference Danubienne, Belgrade, 1948, Ministere des Affaires
Etrangeres, Proces-Verbaux des stances plenieres.
7 Ibid. Convention relative au regime de la navigation sur le
Danube, p. 373, article 1, and p. 379, article 26.
685th meeting – 22 May 1963 77
and transitional measures to facilitate the change-over
from one regime to the other.
36. With regard to the authority of resolutions of the
United Nations General Assembly – and those of the
specialized agencies, which were sometimes even more
mandatory in character – like Mr. Yasseen, he distinguished
between formal authority and substantive
authority. He agreed in principle that those resolutions
had no binding formal authority. But some resolutions,
such as those relating to questions of internal organization,
had immediate effects for Member States and even
for other States; they sometimes introduced rules which
subsequently became general. Some resolutions adopted
on the recommendation of the Fifth Committee, for
instance, had introduced rules which had become the
law of the Organization.
37. The rules of procedure of international conferences,
although apparently concerned with procedure, in fact
regulated certain susbtantive law relations between
States. The resolutions of international bodies were not
always direct sources of international law; but, as
Mr. Yasseen had said, they expressed a state of mind.
If they were followed by a long and frequent practice,
they gave birth to a new concept. For instance, technical
assistance, which was nowhere referred to in the Charter,
had become an institution; relations of a certain kind
had been established between contributing and recipient
States, not only within the framework of United Nations
activities, but bilaterally too, as a result of the many
resolutions which had gradually clarified and modified
those relations. Some resolutions represented the birth
of a legal idea; others confirmed an existing rule.
Accordingly, the resolutions adopted by international
bodies were not negligible as sources of international
law, even though their value as such was not always
formally recognized.
38. The CHAIRMAN said that the Commission had
held an interesting discussion, which would prove of
value to all jurists on a number of points, including the
question of the effect of General Assembly resolutions;
it was his duty to point out, however, that that question
was not germane to the article under consideration.
39. Mr. de LUNA said that, although he proceeded from
entirely different philosophical promises, he found himself
nearly always in agreement with Mr. Bartos, for
whose profound knowledge of legal technique, theory
and practice, he had the greatest admiration. He had
merely wished to say that Mr. Bartos had given the true
definition of jus cogens, when he had said that it was
the minimum framework of law which the international
community regarded as essential to its existence at a
particular time; Mr. Bartos had just repeated that
definition.
40. While he had spoken more particularly of certain
norms of jus cogens, it was by no means his claim that
other norms derived from custom or treaty law did
not exist in addition to those he had mentioned, which
did not originate in the will of States.
41. Sir Humphrey WALDOCK, Special Rapporteur,
said that there seemed to be general agreement on the
concept to be embodied in article 13, but the problem
was how to give it expression. He had used the term
“jus cogens “, which had the merit of brevity and did
appear in the work of writers, eminent even if few in
number. However, some members of the Commission
had criticized the term on the ground that it was not
sufficiently familiar to international lawyers, particularly
in certain countries, and might be variously interpreted.
That criticism would apply with even greater force to
the expression ” international public order “; personally,
he had not been greatly impressed by those objections
and thought that the phrase jus cogens could at least be
conveniently used in the commentary. For purposes of
cross reference in the articles themselves, once the principle
of jus cogens had been formulated, it would be
possible to refer to the rule laid down in article 13.
42. With regard to the formulation of article 13, the
Commission’s view seemed to be that the definition
contained in article 1, paragraph 3 (c), in abbreviated
form should be transferred to paragraph 1 of article 13.
43. Among the drafting suggestions made, some involved
questions of substance. For example, Mr. Ago believed
that the notion of infringement ought to be dropped,
and although previous special rapporteurs and certain
writers had dealt with the subject under the heading of
illegality, he had now come round to the view that the
rule should be expressed in terms simply of a treaty
being void if it conflicted with a general rule of international
law from which no derogation was permitted.
44. A slight difference of opinion had arisen as to
whether reference should be made both to general rules
and to principles. He had referred to both, having in
mind that the International Court, in some of its decisions,
had mentioned matters which it seemed more
natural to speak of as principles than as rules, for
example when invoking humanitarian considerations in
its judgement in the Corfu Channel case. He had no strong
views as to whether the double phrase or the word
” rules ” alone should be used, and the point could be
referred to the Drafting Committee. He did not think
that there was much difference between members on the
substance of the matter. The difference related only to
their views concerning the sources of international law.
So far as he was concerned, when he spoke of a ” principle
“, such as a principle of humanity being a rule of
jus cogens, he was doing so on the basis that the principle
was to be regarded as having been accepted as a rule of
positive law.
45. Mr. Pal’s amendment to paragraph 1 did not commend
itself to him because it would narrow the scope of
the provision; not all rules of jus cogens found expression
in the Charter, nor were all the rules laid down in the
Charter expressed as rules possessing the character of
jus cogens.
46. Like the majority of members, he considered that
article 13 should be placed in the section dealing with
essential validity. He doubted whether the draft would
be made any more acceptable if the article were given
great prominence by being placed at the beginning. The
concept it sought to set out was not new, but was not
78 Yearbook of the International Law Commission, Vol. I
perhaps very familiar to statesmen and might not be
readily assimilated by them if it were given undue emphasis.
47. He agreed with Mr. Rosenne and Mr. Ago on the
question of retrospective effect. In drafting the article
he had assumed that what was known as the intertemporal
law would apply. In other words, all treaties
would be covered by such a provision and the appearance
of a new jus cogens would affect such pre-existing treaties
as did not accord with it by making them no longer
capable of being executed, though not invalidating the
performance of the treaties in the past. He had attempted
to deal with that question separately in section III,
article 21 (A/CN.4/156/Add.l). The nineteenth-century
conventions for regulating the slave trade were an
obvious example of treaties which were valid when drawn
up but subsequently became void by the development of
a new rule of international law prohibiting the slave
trade altogether.
48. In reply to the observations made concerning paragraph
2 of article 13, he explained that the purpose of
the examples, all of which contained an element of
criminality, was to indicate the kind of legal principles
that were comprised in the notion of jus cogens. The
article imposed restrictions on the freedom of States
to conclude treaties and would, as such, be subject to
the most careful scrutiny by them. It therefore seemed
important to make clear that not every so-called
fundamental principle of international law would be
caught by those restrictions. States could, by agreement,
freely derogate from many of those rules. Mr. BartoiS
had, however, rightly pointed out that other principles
not involving the commission of an international crime
came under consideration and he had dertainly not meant
to exclude them. On the other hand he had not thought
it advisable to attempt to codify the various categories
of jus cogens. An alternative to expanding the list of
examples would be to drop the paragraph altogether and
deal with the matter in the commentary. He was inclined
to favour the latter course, the more so as the full
extent of jus cogens would only be determined ultimately
by practice, the decisions of international tribunals and
the pronouncements of political organs. The decision
whether to retain paragraph 2, though involving points
of substance, would partly depend on drafting considerations
and could at the present stage be left to the
Drafting Committee.
49. Opinion had been somewhat divided on paragraph 3,
with some members advocating its deletion on the ground
that to allow severance in order to maintain the validity
of a treaty might appear to imply approval of a treaty
which conflicted with jus cogens. As he had explained
when introducing the article, he had inserted a provision
on severance in the particular context of article 13 to
draw attention to the fact that different considerations
might apply there than in the case of error. The Commission
should not take too hasty a decision about
denying the possibility of severance in the former case.
The sparse practice and little judicial guidance that
existed concerning severance was in connexion with
something close to jus cogens. He referred to the comment
made in the International Court of Justice during the
case of Certain Norwegian Loans 8 concerning so-called
” automatic ” reservations which some judges considered
to be in conflict with the Statute of the Court. Without
going into the question of how far the Statute could be
regarded as jus cogens it was very clear that the Court
regarded it as jus cogens for the parties. Some judges
considered severance permissible; others did not. Thus
paragraph 3 raised a real problem, but it was one that
could be held over until the Commission took up
article 26 in section IV.
50. Paragraph 4 had not given rise to any major disagreement,
and it could be left to the Drafting Committee
to decide whether or not the point could be
covered in paragraph 1.
51. The references made during the discussion to the
legal force of General Assembly resolutions were not
altogether germane to the issue and he saw no advantage
in pursuing the matter, on which his own views were
not far removed from those expressed by Mr. Barto?
It was necessary to distinguish between different kinds
of resolutions in accordance with the different circumstances
in which they were made.
52. The CHAIRMAN suggested that as, in the main,
agreement had been reached on the substance of
article 13, it could now be referred to the Drafting
Committee, and the Commission could take up
article 14.
It was so agreed.
ARTICLE 14 (CONFLICT WITH A PRIOR TREATY)
53. Sir Humphrey WALDOCK, Special Rapporteur,
introducing article 14, said that the question of conflict
between treaties was a complex one, as any reader of
the reports by his predecessor, Sir Gerald Fitzmaurice,
or of his own commentary would appreciate. Members
would note from paragraphs 1 and 2 that he had come
to the opposite conclusion from Sir Gerald Fitzmaurice
and Sir Hersch Lauterpacht, who had held that in certain
cases invalidity could result from mere conflict with a
prior treaty, and might therefore wonder why he had
placed article 14 in section II. His reason was that the
question had been discussed in the context of essential
validity by McNair in his Law of Treaties, by Rousseau 9
and by the previous special rapporteurs, though each
of them had recognized that in some instances the
problem was one of relative priority rather than of
validity. If his general thesis in paragraphs 1 and 2,
with the special provisions laid down in paragraph 3,
were accepted, namely, that mere conflict of treaties did
not raise the problem of nullity, but rather of priority,
there might be good reason to transfer the article to
another section. It did, of course, have obvious links
with article 19, which dealt with implied termination
by entry into a subsequent treaty. He had not yet formed
any definite opinion as to the appropriate place for
article 14 and wished to hear the views of the Commission
before doing so.
8 LCJ. Reports, 1957, judgement of 6 July 1957.
9 Rousseau, C, Principes g&ntraux de droit international public.
686th meeting – 24 May 1963 79
54. The general problem dealt with in article 14 had
some relevance to the question of extended participation
in general multilateral treaties concluded under the
auspices of the League of Nations, which the General
Assembly had asked the Commission to study further.
55. Mr. CASTREN said that once again the Commission
was dealing with a difficult problem on which theory
was divided and which the previous special rapporteur
had treated with great caution. That being so, the
Commission should seek guidance in practice, and in
the first place in the case-law of the International Court,
the body most competent in the matter. That was what
the present special rapporteur had done. His draft of
article 14 was simple and clear; the provisions proposed
were workable, sound and prudent.
56. The Special Rapporteur had rightly emphasized that
the Commission was not called upon to interpret the
Charter of the United Nations, and had taken the
adopted approach in saying that a treaty which conflicted
with an earlier treaty should not be declared void; at
most the draft should specify, without prejudice to the
question of responsibility, which of the two treaties
should prevail. As the Special Rapporteur said in his
commentary, there were different kinds of treaties,
governed by different rules. But it often happened that
a single treaty contained elements of different kinds,
which complicated the problem. The previous special
rapporteur had distinguished a category of treaties
which, in the event of a conflict, should take precedence
over the others. Like the present special rapporteur,
he (Mr. Castren) thought that the concept of jus cogens,
or an equivalent concept, should be the criterion for
deciding that certain treaties had absolute priority; that
was the effect of paragraph 4 of article 14. The exceptions
for which provision was made in paragraph 3 were also
necessary.
57. The only provision of article 14 which he did not
find entirely acceptable was that contained in paragraph
2 (b) (ii), under which the effectiveness of the
second treaty could be contested not merely by a State
which was a party only to the second treaty, but also
by a State which was a party to both of the conflicting
treaties. Such a case was doubtless rare in practice, but
from the theoretical viewpoint it might be considered
that that right should not be granted to such a State.
58. Mr. BRIGGS said that the Special Rapporteur’s
commentary on article 14 was extremely illuminating and
convincingly demonstrated that conflict with a prior
treaty did not raise any major issues of validity. The
cases treated in paragraphs 1, 2 and 3 entailed limitations
on capacity or stated the principle of priority.
That being so, perhaps the Special Rapporteur’s suggestion
that the question of conflicting obligations be dealt
with in a separate section should be adopted, in which
case article 14 should perhaps be held over and re-drafted
for consideration at a later stage.
59. Mr. ROSENNE said that he supported the views
expressed by Mr. Briggs, but would go further than the
Special Rapporteur, who seemed to favour combining
parts of articles 14 and 19 in a separate section, and
urge that article 14 belonged to an entirely separate
part of the draft – namely, that to be devoted to the
application of treaties. Perhaps the Special Rapporteur
should be asked to reconsider the whole question in
that context.
60. He endorsed the general conclusion reached by the
Special Rapporteur in his commentary.
61. Sir Humphrey WALDOCK, Special Rapporteur,
said that if the Commission agreed with the arguments
he had set out in his commentary, perhaps after consulting
the Drafting Committee he might be asked to
state his views as to how the subject of article 14 should
be handled.
62. Mr. TUNKIN said that the Commission needed
time for reflection on the complex problem dealt with in
article 14; no hasty decision ought to be taken.
63. Mr. PAL did not consider that the question of conflicts
between treaties belonged to section II. He agreed
with Mr. Tunkin that no immediate decision could be
taken on the matter.
64. Mr. AMADO said that the Special Rapporteur had
certainly had sound reasons for placing article 14 in the
section concerned with essential validity. Moreover, in
most textbooks the conflict of treaties was considered
immediately after their validity. He hoped the Commission
would take the opportunity of throwing new light
on a question which, as he had observed at the previous
meeting, was closely linked with that of the legality of
the objects of treaties.
65. Mr. ROSENNE said he wished to withdraw the
comment he had made regarding the second world war
(para. 10 above) as a result of having misunderstood a
statement made by Mr. Tunkin at the 682nd meeting.
The meeting rose at 1 p.m.
686th MEETING
Friday, 24 May 1963, at 10 a.m.
Chairman: Mr. Eduardo JIMENEZ de ARfiCHAGA
State responsibility: Report of the Sub-Committee
(A/CN.4/152)
[Item 3 of the agenda]
1. The Chairman, opening the discussion on item 3
of the agenda, invited the Chairman of the Sub-Committee
on State Responsibility to introduce the Sub-
Committee’s report (A/CN.4/152).
2. Mr. AGO, Chairman of the Sub-Committee on
State Responsibility, summarizing the Sub-Committee’s
work, drew attention to the conclusions given
in paragraph 5 and to the proposed programme of
work set out in paragraph 6 of the report. The Sub-
Committee had worked in an excellent atmosphere;