유엔국제법위원회687차회의 이시우 2006/05/11 626

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A/CN.4/SR.687
Summary record of the 687th 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)
86 Yearbook of the International Law Commission, Vol. I
70. Sir Humphrey Waldock, with the very wide experience
he had gained during two years as Special Rapporteur,
had said that the instructions given to the special
rapporteur on State responsibility should not impose
induly strict limitations on his work. A plan of work,
which was what the Sub-Committee had drawn up,
could include fairly detailed suggestions; but the Special
Rapporteur would inevitably find some gaps when he
came to the heart of the matter, and would have to make
some adjustments. Even though the Commission and
the Sub-Commission were in full agreement on the main
lines of the programme, it must be possible to depart
from it when going into the subject more thoroughly.
71. It had also been asked whether the main emphasis
should be on codification or on progressive development.
There again, just as he did not believe it possible to draw
a clear dividing line between those two activities, he did
not think it possible, either, to foresee whether one of
them should take precedence over the other. A final
conclusion on the matter could not be reached until
the substance of the problems had been examined.
Neither the Commission, nor the General Assembly
or the Sixth Committee, could decide beforehand which
points should be codified and which were suitable for
progressive development. The Special Rapporteur would
first have to submit rules on each point in the light of
experience, of reality and of the case-law, which was
fairly abundant on certain aspects.
72. Another question was what work the Commission
might ask the Secretariat to carry out. A kind of index
of everything done or said by the various organs of the
United Nations about State responsibility would be
very useful to the Special Rapporteur. The work of the
1930 Codification Conference was certainly quite well
known and the memorandum which the Secretary had
mentioned might be very useful. The documentation
on the subject was sufficient, but what would be especially
useful would be a collection of the leading cases. It
would suffice if the Secretariat prepared a full and
accurate index, showing the sources.
73. Provisional work and discussion would probably
be of little use, and would duplicate the Sub-Committee’s
work. The connexion between a principal provision
and secondary provisions would only become apparent
when the subject was studied as a whole. Thus there
was some danger of doing work which would have to
be entirely revised the following year. For that reason,
and because the Commission would first need to have
all the documentary material the Secretariat could
provide, and because a great deal of research would be
needed before a report could be written, he thought the
item should not be placed on the agenda for the 1964
session; a preliminary report should not be scheduled
until 1965. Besides, it would be a pity to take up valuable
time which might be spent completing the work on the
most important subject of the law of treaties.
74. The first report need not necessarily cover the whole
subject; it could be confined to the first point, leaving
the second till later. That division would be practical,
and consistent with the method adopted for the law of
treaties. But those were merely suggestions; the Commission
could take the necessary decisions as its work
proceeded.
75. The CHAIRMAN, after thanking Mr. Ago for his
able summary of the discussion, said that, if there were
no objections, he would consider that the Commission
agreed to approve the report of the Sub-Committee
on the understanding that the outline programme of
work it contained was without prejudice to the position
of any member regarding the substance of any of the
questions mentioned in the programme. It was also
understood that the outline would serve as a guide to
the Special Rapporteur without, however, obliging him
to follow it in detail.
It was so agreed.
76. The CHAIRMAN said that other points, such as
the time for submission of the report, would be taken
up at the end of the present session. There remained,
however, the important question of the appointment
of a special rapporteur for the topic of state responsibility.
Mr. Ago, Chairman of the Sub-Committee on
State Responsibility, had already been mentioned several
times as the member best qualified to undertake the task.
He therefore invited the Commission to indicate its
approval of Mr. Ago’s nomination.
Mr. Ago was appointed Special Rapporteur for state
responsibility by acclamation.
The meeting rose at 1 p.m.
687th MEETING
Monday, 27 May 1963, at 3 p.m.
Chairman: Mr. Eduardo JIMENEZ de ARfiCHAGA
Law of Treaties (A/CN.4/156 and Addenda)
[Item 1 of the agenda]
(resumed from the 685th meeting)
1. The CHAIRMAN invited the Commission to resume
consideration of article 14 in section II of the Special
Rapporteur’s second report (A/CN.4/156).
ARTICLE 14 (CONFLICT WITH A PRIOR TREATY) (continued)
2. Mr. LACHS, stressing the importance of article 14,
commended the Special Rapporteur for his approach
and particularly for his commentary. The article raised
certain issues of principle and his doubts had not been
dispelled by the discussion. In view of the increasing
number of treaties and of the danger of incompatibility
of their provisions, the Commission must lay down rules
for the guidance of States. Its primary concern should
be the security of international transactions and the
protection of the interests of parties to a treaty who
687th meeting – 27 May 1963 87
wished to rely on its provisions. The parties could not
be left helpless when certain signatories entered into a
new treaty that conflicted with obligations under the
former treaty.
3. Paragraph 4 was the most important provision and
should be placed first. Treaties which confirmed general
principles of law or gave greater precision to binding
rules of law could not be altered, since they confirmed
what had been termed jus cogens. The source of the
obligation lay outside the treaty itself and article 13
applied. Any conflict that might arise in such a case
concerned not the treaty, but the very existence of jus
cogens, of which the treaty only constituted evidence. ‘
4. The second provision in order of importance was
that embodied in paragraph 3 (b), which reproduced
the terms of article 103 of the United Nations Charter.
The Charter occupied a special place among instruments
of contemporary international law and it was therefore
appropriate that paragraph 3 (b) should be placed immediately
after paragraph 4, which should be placed first.
Article 103 of the Charter had wider implications, in
particular in point of time, than, for example, article 20
of the Covenant of the League of Nations. Provisions
similar to article 103 were to be found in the Paris Peace
Treaties of 1947: in article 44 of the Treaty with Italy,
article 10 of the Treaty with Rumania, article 8 of the
Treaty with Bulgaria, article 10 of the Treaty with
Hungary and article 12 of the Treaty w*th Finland.1
5. An interesting illustration of the practice under
Article 103 of the Charter was furnished by the Agreement
of 1 July 1948 between the Universal Postal Union
and the United Nations, article VI of which specified
that ” no provision in the Universal Postal Convention
or related arrangements shall be construed as preventing
or limiting any State in complying with its obligations
to the United Nations.” 2
6. The Special Rapporteur’s paragraphs 1 and 2 dealt
with cases in which the freedom of action of States
was not limited by a higher law. It would of course be
desirable in those cases for States concluding a new
agreement to define its relationship to agreements already
in existence – as was done in the case of the relationship
between the Geneva Protocol of 1924 and the Covenant
of the League by article 19 of that Protocol3 – or to
provide for the termination of the old treaty as soon
as the new one came into force. An instance of that
kind was to be found in International Labour Convention
No. 28 of 1929, article 23 of which provided that:
” Should the Conference adopt a new Convention
revising this Convention in whole or in part, the ratification
by a Member of the new revising Convention
shall ipso jure involve denunciation of this Convention
without any requirement of delay.. ..” 4
7. A somewhat different approach had been adopted
in the Universal Copyright Convention,5 concluded
under the auspices of UNESCO in 1952, to which a
declaration6 had been attached containing a set of
principles to prevent any conflict which might result
from the coexistence of that convention and the earlier
Berne Convention.
8. Unfortunately, States often failed to include specific
clauses on the subject in their treaties and it was necessary
to deal with that contingency. It might be advisable
also to include principles covering cases in which such
stipulations did exist, bearing in mind that article 15
dealt with such situations in relation to the termination
of treaties.
9. With regard to the serious problem raised by the
case contemplated in paragraph 1 (a), he thought it
would be desirable to place at the very outset of that
provision a confirmation of the principle of unanimity
- a principle to which the Special Rapporteur subscribed.
The provisions on the various cases to which
the rule applied, and the various exceptions to the rule,
should follow.
10. However, the main problem was that of the cases
contemplated in paragraph 2. The Special Rapporteur
had perhaps attached too much importance to the two
cases cited in paragraph 15 of the commentary, which
had been decided by the Permanent Court of International
Justice; he seemed to rely not so much on what the Court
had said, but on what it had not said.
11. The principle of unanimity could not be questioned.
In another case, that of the Act of Algeciras of 1906,7
concerning Tangiers, which had not reached the Court,
some of the parties to an older instrument had proceeded
to revise it without the consent of the others; the parties
which had revised the Act had tried to remedy the
situation by communicating their decision to the absent
parties with a view to obtaining their consent. Similar
action had been taken for the revision of the Treaty of
1839 establishing the neutrality of Belgium.8
12. Article 14 did not deal with those treaties which
specifically prohibited the conclusion by the parties of
special agreements on the same subject, either between
themselves or with third States, as was the case with
the Berne Convention of 1886,9 the General Act of Berlin
of 1885 10 and the Declaration of Brussels of 1890.11
The conclusion might be drawn that such stipulations
had no legal effect. It was true that treaties containing
provisions of that type were few in number, but it was
essential to uphold the principle of unanimity and to
take the existence of those provisions into account.
As Judge Anzilotti had said in his separate opinion in
the Lighthouses Case, ” . . . it is a fundamental rule in
1 United Nations, Treaty Series, vols. 41, 42, 48 and 49.
2 Agreements between the United Nations and the specialized
agencies (United Nations publication, Sales No.: 1951.X.I), p. 99.
3 League of Nations Official Journal, Geneva, 1924, Special
Supplement No. 23, p. 502.
4 Conventions and Recommendations, 1919-1949, Geneva, 1949,
International Labour Office, p. 165.
5 United Nations, Treaty Series, Vol. 216, pp. 134 ff.
8 Ibid., pp. 150 ff.
7 British and Foreign State Papers, Vol. 99, pp. 141 ff.
8 Op. cit., Vol. 27, pp. 990 ff.
9 Op. cit., Vol. 77, pp. 22 ff.
10 Op. cit., Vol. 76, pp. 4 ff.
11 Op. cit., Vol. 82, pp. 55 ff.
88 Yearbook of the International Law Commission, Vol. I
interpreting legal texts that one should not lightly admit
that they contain superfluous words. . . .” 12
13. Another question he wished to raise was that of
treaties which had an effect on States that were not
parties to them. Some treaties had played a decisive
part in the formation of new States or had guaranteed
the vital rights of States that were not parties. Such
third-party beneficiaries should not be left helpless in
the face of attempts to revise the treaties or to conclude
new instruments which conflicted with the earlier ones.
14. He proposed that the provisions of article 14 should
be rearranged, paragraph 4 being placed first and paragraph
3 second. On the points of substance he had
raised, he would make no concrete proposals at that
stage, but would await the explanations of the Special
Rapporteur.
15. Mr. YASSEEN said that a conflict with an earlier
treaty having the same substantive force would raise
no difficulties if there were a single international community
with a single legislative body. As in municipal law,
if the judicature and the legislature were part of the same
system it would be merely a matter of interpretation,
since in the last resort the solution would depend on
the will of the legislature.
16. But the situation was quite different in the sphere
governed by international law, and especially by conventional
law, since there were a large number of communities
and legislative bodies. No problem arose where
completely different international communities existed
side by side, for every rule would then remain in force
within its own sphere; but where conventional rules
came into force successively in international communities
which differed from each other only in part, that overlapping
complicated matters.
17. Two principles had then to be borne in mind. First,
respect for acquired rights: a later treaty should not
impair the interests of the States parties to an earlier
treaty. As a general rule, however, it would be wrong
to go so far as to invalidate the later treaty. Secondly,
the interests of States, which were parties to the later,
but not to the earlier, treaty should be safeguarded.
The contractual principle should be ignored, since the
Commission was drafting rules de lege ferenda, and the
development of international law should not be impeded
merely for the sake of some States which might not be
willing to bow to modern requirements.
18. The line taken by the Special Rapporteur was
therefore both moderate and justifiable; it did not
impair the rights of the States parties to an earlier treaty,
since that treaty was held to prevail. At the same time
there was no bar to the treaty’s amendment. The later
treaty was not invalidated, but could be carried into effect
provided that the States signatories to the later treaty
fulfilled their obligations to the States parties to the
earlier treaty.
19. The Special Rapporteur had not laid down any
absolute rule, but had provided for justified exceptions.
The proviso regarding the constituent instruments of
international organizations seemed perfectly reasonable
in view of the importance of such instruments and the
need to provide international organizations with certain
guarantees. The other exception, relating to jus cogens
rules, was also essential. Moreover, the solutions adopted
in article 14 could be more easily accepted in view of
the approval of article 13.
20. Further exceptions might be conceivable, especially
for conventions of great political importance based on
a balanced compromise achieved with great difficulty,
particularly those prohibiting derogation from their
provisions by means of later conventions. They might
be regarded as somewhat analogous to jus cogens rules.
21. The principles on which article 14 was based and
the solutions put forward in it were acceptable as a
whole, subject to the reservations he had mentioned.
22. Mr. TUNKIN said it was important to avoid the
temptation to adopt an approach borrowed from municipal
law; in article 14, it would be inappropriate to
take a position based on the concept of civil liability.
The situation in international relations was very different
from that obtaining under municipal law; international
treaties were of greater importance than contracts
concluded under municipal law, for world peace could
depend on the fulfilment of treaty obligations. Consequently,
the provisions of article 14 were of vital
importance.
23. The problems of principle involved had some bearing
on the pacta sunt servanda rule. A State which was a
party to a treaty would violate that rule if it entered
into a later treaty which conflicted with its obligations
under the earlier treaty. The question then arose what
the legal consequences would be with regard to the
validity of the later treaty; he would leave aside, for the
time being, the problem of responsibility, which would
be dealt with by Mr. Ago as Special Rapporteur for that
topic.
24. The principle stated in paragraph 2 was correct,
but the problem arose of whether that principle could
be applied to every situation. Some speakers had quoted
instances in which exceptions might have to be made.
Personally, he thought there could be international
treaties of which it was not sufficient to say that ” the
later treaty is not invalidated by the fact that some or
all of its provisions are in conflict with those of the
earlier treaty.” One example was the recent agreement
on the neutrality of Laos,13 which prohibited the establishment
of foreign military bases on Laotian territory.
It a treaty were concluded in violation of that provision,
it would clearly not be sufficient merely to say that the
provisions of the earlier treaty would prevail; such a
statement might cover most of the practical points
involved, but it would also be necessary to state that the
second treaty was void.
25. Paragraph 1 dealt with the case where all the parties
to the later treaty were also parties to the earlier treaty.
In that case, the principle to be applied was that the
parties could always change the provisions of the earlier
12 P.C.I.J., Series A/B, No. 62, p. 31.
13 Command Papers, H.M. Stationery Office, London. Cmd. 9239,
pp. 18 ff.
687th meeting – 27 May 1963 89
treaty by subsequent agreement. The problem of validity
did not arise and paragraph 1 did not properly belong
to the subject matter of article 14; he suggested that
it should be removed from the article.
26. Mr. de LUNA said he was glad to see that the
Special Rapporteur had departed from the approach
adopted by his two predecessors, Sir Hersch Lauterpacht,
who had held that a treaty should be void ” if
its performance involves a breach of a treaty obligation
previously undertaken by one or more of the contracting
parties “,14 and Sir Gerald Fitzmaurice, who had drawn
a distinction between cases in which a previous treaty
imposed reciprocal obligations and those in which the
obligations imposed were of the ” interdependent”
or ” integral ” type.15
27. The Special Rapporteur had adopted a more correct
approach, which had, moreover, the support both of
judgements of the Permanent Court of International
Justice and of the principle that conflicts between treaties
should be resolved on the basis of the relative priority
of conflicting legal norms, not on the basis of the nullity
of the later treaty.
28. The most useful idea in the arguments of the two
previous Special Rapporteurs, the idea that a treaty
conflicting with a jus cogens rule was invalid, had been
retained; any other solution would needlessly impair
the stability of conventional law. Wherever jus cogens
rules did not apply, the principles to be respected were
the autonomy of the will of the parties, the principle
that so far as third States were concerned treaties were
res inter alios acta and the principle pacta tertiis nee
nocent nee prosunt. Where a party to an earlier treaty
assumed a subsequent obligation, it would be sufficient
to follow the general principles governing the interpretation
and application of treaties, their amendment and
termination. Where a State was unable to fulfil one or
other of its successive obligations, the principle of responsibility
would apply, with its consequence: compensation.
29. In many instances States in a particular region which
were parties to multilateral treaties had concluded
among themselves regional agreements containing provisions
that differed from those of the earlier treaties.
For such States it was the regional agreements which
had effect, by virtue of the principle tractatus specialis
derogat generali. Many cases similar to those quoted
by the Special Rapporteur and by Mr. Lachs existed in
general international law; for example, not all the States
parties to the Hague Convention of 1899 had become
parties to the Hague Convention of 1907, but both
conventions had operated simultaneoulsy by virtue of
a special clause in the latter.16
30. Mr. ROSENNE said the discussion had strengthened
his opinion that article 14 dealt with the interpretation
and application of treaties rather than with their validity.
14 Yearbook of the International Law Commission, 1954, Vol. II
(United Nations publication, Sales No. 59.V.7, Vol. II), p. 133,
article 16.
15 Op. cit., 1958, Vol. II (Sales No.: 58.V.I, Vol. II), pp. 27-28,
articles 18 and 19.
16 Scott, J. B., Hague Conventions and Declarations of 1899 and
1907, 3rd edition, New York, 1918, Oxford University Press.
31. In most cases, subject to the overriding rules of
jus cogens, the real problem was that of determining
which set of obligations was to prevail in the event of
conflict between an earlier treaty and a later one. As
pointed out by the eminent French internationalist
Rousseau, that could give rise to delicate situations
in which legal considerations were not always predominant.
32. He believed that the guiding principles should be
expressed in terms of a residual rule. Indeed, the Special
Rapporteur had begun his formulation on that basis,
but his approach should be more emphatic. The residual
rule would apply where both treaties were completely
silent on the question of other treaties and where there
had been no real negotiations to try to bridge the gap
between them. It was quite common for a clause to be
included in a treaty dealing with its relationship with
past treaties, with future treaties, or with both. It was
essential that that practice should be encouraged and
that the efficacy of that type of clause should not be
impaired by the adoption of too general a rule. All
United Nations conventions codifying international
law concluded since 1958 contained a clause on the
subject. On the other hand experience showed that
provisions for resolving that type of conflict did not
always appear on the face of the treaty, but could be
agreed in the antecedent negotiations. Accordingly, the
residual rule would have to be carefully formulated.
33. Paragraph 9 of the commentary referred to the effect
of knowledge of the conflict between the earlier and the
later treaty; he wondered whether compliance with the
provisions on the registration of treaties might affect
that question of knowledge.
34. With regard to paragraph 3 (a) of the article, he
found it difficult to accept the proposition that the
Charter of the United Nations or the constitution of
a specialized agency limited the treaty-making powers
of member States or raised questions of capacity. What
article 108 of the United Nations Charter and similar
provisions did was to lay down modalities for the conduct
of negotiations, a matter which was covered by article 5
of Part I of the draft.
35. Finally, paragraph 3 (b) seemed unnecessary, because
the matters it dealt with were already covered by other
provisions of the draft.
36. Mr. ELIAS said he found the provisions of article 14
acceptable, except that they omitted to deal with one
situation which merited attention. They dealt with the
case in which the parties to the later treaty were the
same as those to the earlier treaty, the case in which
the later treaty had a larger number of parties and the
case in which the later treaty had fewer parties; there
was, however, a fourth case, admittedly a somewhat
rare one: the case in which the later treaty was concluded
by parties entirely different from the parties to the
earlier one.
37. The provisions proposed by the Special Rapporteur
were based on the attitude adopted by the Permanent
Court of International Justice in the Oscar Chinn 17 and
17 P.C.U., Series A/B, No. 63.
90 Yearbook of the International Law Commission, Vol. I
European Commission of the Danube 18 cases. The situation
which he had in mind, and which had been the
subject of attention at a conference held at Niamey,
in the Republic of the Niger in February 1963, on the
subject of the River Niger, went beyond those cases.
38. The Act of Berlin of 1885 had established an international
regime for the Congo and the Niger. That
regime had been confirmed and slightly modified by the
Convention of St. Germain of 1919.19 As far as the
Niger was concerned, France and the United Kingdom
had been the riparian signatories of those treaties at
the time. The territories which had then been colonies
of France and the United Kingdom had, of course,
since become independent. Nine independent riparian
States had thus met at the Niamey Conference to
consider arrangements for the development of the Niger
and its utilization, in particular for the generation of
hydroelectric power and the exploitation of the river’s
resources. The question which had arisen was whether,
and if so to what extent, those nine States could seek to
provide, in a treaty establishing a River Niger Commission,
for the abrogation of the General Act of Berlin
of 1885 and the Convention of St. Germain of 1919,
in so far as those States were concerned.
39. That question could be considered from several
different angles, one of which was that of State succession.
Since the nine independent States had taken over
the rights and duties of the former colonial Powers
under the two treaties in question, they had also taken
over the right to abrogate the treaties and substitute
for them arrangements more acceptable from the point
of view of their development schemes. The doctrine of
rebus sic stantibus had also been invoked and, more
broadly, the problem of the obsolescence of treaties.
The conclusion reached by almost all the members of
the prospective River Niger Commission was that the
Act of Berlin, the Convention of St. Germain and
the intervening Declaration of Brussels of 1890 must
be deemed inapplicable to the new situation in which
the riparian States found themselves.
40. The States attending the Niamey Conference had
reached agreement on a Convention and on a Statute
for the River Niger Commission. Those instruments
had been communicated to the United Nations and
circulated to France and the United Kingdom, the
Powers formerly responsible for the Niger Basin, and
there appeared to be general agreement that the course
adopted had been unexceptionable. In any event, the
nine riparian States had reaffirmed the main principles
which the Act of Berlin had sought to protect: equality
of treatment for the nationals of all States, and freedom
of navigation for vessels of all flags.
41. He accordingly suggested that the Special Rapporteur
should deal with the case of a treaty concluded between
parties entirely different from the parties to an earlier
treaty and with the subrogation of new States to the
rights and duties of the former colonial Powers.
18 P.C.U., Series B, No. 14.
19 League of Nations, Treaty Series, Vol. 8, pp. 27 ff.
42. Mr. TSURUOKA said it seemed to him that the
essential point in article 14 was not the substantial
validity of a later treaty, since under the Special Rapporteur’s
draft such a treaty was not invalidated by the
fact that some or all of its provisions were in conflict
with those of an earlier treaty, but rather the position
under conventional law of a State which had concluded
two treaties and thereby assumed two mutually conflicting
treaty obligations. It would be better to consider that
point in connexion with the question of the application
and effects of treaties. Any other problems that might
arise in connexion with article 14 were relevant either
to the revision of treaties or to jus cogens rules.
43. Accordingly, the questions dealt with in article 14
might be gone into in the commentary on article 2 or
article 13, or even in connexion with the succession of
States and governments.
44. Mr. TABIBI said that the length of the commentary
on article 14 testified to the complexity of the subject.
It was one which ought not to be approached exclusively
with a view to codification, as had been done by the
two previous special rapporteurs on the law of treaties,
but also with a view to progressive development.
45. He agreed with the views expressed by the present
Special Rapporteur, in paragraphs 3 and 4 of his commentary,
as to the kind of cases in which a question of
essential validity might arise, and with his statement
in paragraph 18 that international jurisprudence was not
perhaps entirely conclusive on the question whether
and, if so, in what circumstances, a treaty might be
rendered void by reason of its conflict with an earlier
treaty. That was probably the main reason why Sir
Hersch Lauterpacht and Sir Gerald Fitzmaurice had
been chary of admitting that such conflicts ever led to
nullity.
46. Although he was in general agreement with the
fundamental purpose of the article, he feared that it
might lead to difficulties in application, especially if
the points raised by Mr. Lachs were not elucidated,
and might detract from the force of the other articles
on essential validity. It also appeared from the general
trend of the discussion that the article in its present
form would not prove acceptable. It might be preferable
for the Special Rapporteur to reconsider the subject
and submit a new text to the Commission.
47. Mr. AGO said that his doubts regarding the need
for article 14 – which had been strengthened by the
critical examination made by the Special Rapporteur
himself – had not been dispelled by the discussion.
48. Paragraph 1 of the article, concerning the case in
which the parties to two treaties were the same, stated
an obvious truth which no one would think of disputing
and which it was therefore unnecessary to reaffirm in
the draft.
49. Paragraph 2 dealt with the problem of conflict
between two successive treaties to which only some of
the parties were the same and the effects of the conflict
on the validity of the second treaty. The Commission
was not concerned at that point with the problem of
revision, which it would consider later. Nor could it,
687th meeting – 27 May 1963 91
of course, hold that the earlier treaty ceased to be valid
with respect to States not parties to the later one; for
manifestly, if some of the parties to a treaty concluded
another treaty inter se which conflicted with the earlier
one, the second instrument was valid as between those
parties; but equally obviously, as between those parties
and the other parties to the earlier treaty, the validity
of the earlier treaty remained intact. If the second instrument
made it impossible to carry out some of the obligations
deriving from the first, the question which
would arise would not be one of validity, but one of
international responsibility. Of the two solutions proposed
in paragraph 2 (b), the first was obvious and the second
seemed to deal with a purely theoretical situation, for
a State which had participated in the conclusion of the
second treaty could hardly contest its effectiveness.
50. Paragraph 3 dealt first, in sub-paragraph (a), with
the case of a special treaty concluded between States
members of an international organization, some provisions
of which conflicted with provisions of the constitution
of that organization. There could be no doubt
that problems of that kind could only be solved by
interpretation and application of the constitution concerned.
Sub-paragraph (b) was not necessary, as it merely
reproduced article 103 of the Charter.
51. Paragraph 4 merely repeated what had already
been said in article 13.
52. There remained the case mentioned by Mr. Tunkin
and Mr. Lachs: that of a State which, having first concluded
with other States a treaty placing certain obligations
on all of them, subsequently concluded with some of
its partners or with other States, a treaty some of whose
provisions conflicted with the first treaty. There would
appear to be two possibilities: either the first treaty
expressly limited the capacity of the parties to conclude
other treaties conflicting with its provisions, in which
case the second treaty was void; or else the first treaty
prescribed no such limitation, in which case the second
treaty was valid as between the States which had concluded
it, but the State or States which were parties to both
treaties had failed to fulfil their obligations under the
first treaty and thereby incurred international responsibility,
one of the consequences of which was that they
were under a duty to eliminate the conflict between the
two instruments by terminating or amending the second.
53. To sum up, article 14 contained only provisions
which, if not unnecessary, merely reproduced clauses
already embodied elsewhere in the draft articles or
dealt with problems which the Commission would take
up later. He therefore suggested that the Commission
should suspend consideration of the article and pass
on to the following articles, reverting to article 14 later,
if necessary, to see whether any part of it need be retained
or not.
54. Mr. VERDROSS said he shared the view of Mr. Tunkin
and Mr. Ago that paragraph 1 of article 14 did not
apply to the case of a conflict between two treaties, and
should therefore be deleted.
55. According to the prevailing doctrine, if a State
party to a treaty concluded with another partner a
second treaty conflicting with the first, then that State
was undoubtedly bound to do everything it could to
annul the second. Admittedly, it was reasonable to ask
whether the Commission, one of whose tasks was to
develop international law, should not go further than
that doctrine; he would prefer not to give a categorical
answer to that question.
56. If the Commission wished to take a decision concerning
a possible conflict between the Charter of the United
Nations and the provisions of another international
agreement, then it should be a clear decision. It was
unnecessary to reproduce Article 103 of the Charter,
which had been intentionally drafted in rather vague
terms so that it could also apply to a treaty concluded
by a Member State with a State which was not a Member;
according to Article 103, the Charter obligations prevailed
in such a case, but the treaty conflicting with
the Charter was not declared void.
57. Mr. PAL said that, after listening to the observations
of other members and examining some of the literature
on the subject, he had come to the conclusion that there
was authority for the view that conflict with a prior
treaty at some points touched upon the issue of validity.
For instance, according to Oppenheim, a treaty conflicting
with a prior treaty was illegal, a view clearly stated
in the following passage:
” Treaties, whether general or particular, lay down
rules of conduct binding upon States. As such they
form part of international law. They are, in the first
instance, binding upon the contracting parties, who
must refrain from acts inconsistent with their treaty
obligations. This implies the duty not to conclude
treaties inconsistent with the obligations of former
treaties. The conclusion of such treaties is an illegal
act which cannot produce legal results beneficial to
the law-breaker.”20
58. Article 14 should remain in section II among the
articles dealing with essential validity, but should be
amplified to cover both the important case raised by
Mr. Elias and the case in which the earlier treaty contained
clauses restricting or purporting to restrict the
capacity of the parties to enter into the later treaty.
The latter point needed general treatment, whereas
the provision in paragraph 3 (a) was limited to the constituent
instruments of international organizations.
59. Mr. GROS said it had been his understanding at
the previous meeting that most members approved of
the Special Rapporteur’s approach in proceeding from
the assumption that article 14 was concerned less with
the validity of treaties than with the conflict between
two treaties. However, the conflict between successive
rules of law raised problems concerning the revision and
the termination of treaties and the interpretation of
the constitutions of international organizations; he
therefore supported Mr. Ago’s suggestion that consideration
of article 14 should be deferred.
60. With regard to the substance, he particularly endorsed
paragraph 20 of the commentary, for he did not think
80 International Law, 8th edition, 1955, Vol. I, p. 894.
92 Yearbook of the International Law Commission, Vol. I
it was by applying a theory of the nullity of treaties that
certain breaches of international law could be effectively
penalized. The rule of estoppel was much more
practical, as the Permanent Court of International
Justice had indicated in its advisory opinion on the
European Commission of the Danube, when it had
stated the governments ” cannot, as between themselves,
contend that some of its [the Statute's] provisions
are void as being outside the mandate given to the
Danube Conference . . .” 21
61. Mr. AM ADO said that from the length of the
commentary it was evident that the Special Rapporteur
had had serious doubts about article 14. Indeed, the
article did not stand up to searching scrutiny. It was
inconceivable that States would behave in a manner
that would make such rules necessary. The Commission’s
task was to give form, not to the doubts of scholars,
but to scientific certainties and to the rules accepted by
States. He did not think that any of the provisions of
the article should be retained, since the whole of its
substance was already embodied in articles 2 and 19 and
whatever few points were not settled by those two
articles would be covered by the provisions governing
the interpretation, revision and deposit of treaties.
62. Sir Humphrey WALDOCK, Special Rapporteur,
summarizing the discussion, said that although a few
members of the Commission were hesitant about removing
article 14 from section II, the majority seemed to
agree with him that the article did not really raise any
issues of essential validity. He had explained, when
introducing the article, that it had been inserted in that
section because the two preceding Special Rapporteurs
had treated its subject-matter in that context, having
found that some of the problems arising from conflict
with a prior treaty touched upon validity. Until the
Commission had expressed its view on the question
whether any matters of validity were raised by article 14,
he had thought it better to present the article in the
context of validity in section II of the report.
63. As he had already suggested, the substance of the
article might need to be discussed in connexion with
article 19 which raised questions of implied termination
of a treaty brought about by concluding a subsequent
treaty. But generally speaking, if the Commission did
not think the article raised any question of essential
validity, it ought to be taken up at the sixteenth session
when he would be presenting his draft articles on the
application of treaties. It would be easier to deal with
the matter of conflict after the Commission had discussed
the question of the effects of treaties on third parties.
64. Some members had touched upon the question of
revision. That certainly had links with the question
of conflict between treaties, but had no relevance to
article 14 if it were dealt with in its present context as
an article on essential validity.
65. Commenting on some of the detailed observations
put forward during the discussion, he said that Mr. Lachs’
suggestions about rearranging the order of the clauses
21 P.C.IJ., Series B, No. 14, p. 23.
had some justification, though perhaps he would differ
as to emphasis. But those suggestions called for consideration
only if the article were left in section II.
66. Mr. Lachs had drawn attention to treaties containing
provisions dealing with the problem of incompatible
obligations, or expressly prohibiting the parties from
assuming incompatible obligations under some other
instrument or giving the treaty priority over other treaties;
but the question of validity was usually not touched
upon by those provisions. A number of treaties, including
the Charter, contained such provisions, and he also
knew instances of two treaties containing inconsistent
provisions and both claiming priority for their own
provisions. But the mere introduction of such clauses
did not, in his opinion, transform a conflict into an
issue over validity. It was noteworthy that in the European
Commission of the Danube case the Permanent Court
had attached no special significance to the existence
of an express prohibition in the Treaty of Versailles
against inconsistent agreements, although the point had
been stressed in the opinions of the dissenting judges.
If the Commission as a whole accepted the general
conclusion set out in article 14, that would certainly not
mean that it sanctioned entry into inconsistent obligations;
such action would be a violation of a previous
treaty and would raise a question of responsibility.
The injured State could always bring the matter before
the United Nations and rely upon such procedural
remedies as existed.
67. He would be encroaching on the territory of the
Special Rapporteur to be appointed on State succession,
if he were to comment on the special case brought up
by Mr. Elias of an agreement to which none of the parties
were the same as those to the previous treaty. He had
not dealt with the matter in the article or in the commentary,
because such a situation did not raise a question
of validity. The question might have to be taken up in
another context. The particular example of the regime
of the river Congo mentioned by Mr. Elias was of the
greatest legal interest. But it seemed to raise other issues
than those of validity – issues of State succession and
of rebus sic stantibus.
68. Mr. Tunkin had raised the very difficult problem of
the possible existence of special cases in which conflict
between two treaties might involve validity even if the
general thesis propounded in article 14 were accepted,
but he would have thought that the example of Laos
raised a problem of capacity, and in particular the
difficult problem of when diminution of capacity took
place as a result of a treaty. The matter had been touched
upon during the previous session, but the Commission
had shown itself reluctant to press it to any conclusion.
In any event, he did not regard such a case as constituting
an exception to the general rule he had sought to lay
down in article 14 and which appeared to have gained
general support. The case seemed, as he had indicated,
rather to raise a possible question of capacity and
certainly a question of responsibility. In such an instance,
the State regarding itself as the injured party could raise
the matter in the United Nations and also seek application
of the various remedies open to it under general
international law*
688th meeting – 28 May 1963 93
69. Mr. TUNKIN said that the question at issue was
not what was the proper place for article 14 but what
should be its substance, and the discussion had not
sufficiently clarified that. Few members had put forward
really definite opinions and, with all respect to the
Special Rapporteur, he himself was not convinced that
treaties in violation of a previous agreement only raised
problems of responsibility and not of validity.
70. As for the action to be taken by the Commission,
he supported Mr. Ago’s suggestion that the discussion
on article 14 should be suspended, so that it could be
decided later where the article should be placed and in
what form.
71. Sir Humphrey WALDOCK, Special Rapporteur,
said he would like to make it plain that he too favoured
the course suggested by Mr. Ago.
72. The CHAIRMAN said that article 14 might be left
aside until the Commission was in a position to determine
whether it should be included in some part of the
draft, or whether the question of conflict with a prior
treaty ought to be dealt with under the topic of state
responsibility or of state succession.
73. Mr. TUNKIN said it should be understood that the
Commission would resume the discussion of article 14
at the present session.
74. Mr. ELI AS agreed with Mr. Tunkin: the argument
that some of the issues raised by conflict with a prior
treaty did not involve essential validity had not convinced
him. The matter should not be held over until the following
session.
75. The CHAIRMAN proposed that the decision on
article 14 be deferred and that the article be taken up
again at a later stage in the session.
It was so agreed.
The meeting rose at 5.55 p.m.
688th MEETING
Tuesday, 28 May 1963, at 10 a.m.
Chairman: Mr. Eduardo JIMENEZ de ARfiCHAGA
Law of Treaties (A/CN.4/156 and Addenda)
[Item 1 of the agenda] {continued)
1. The CHAIRMAN invited the Commission to consider
section III of the Special Rapporteur’s second report
(A/CN.4/156/Add. 1), which began with article 15.
SECTION III (THE DURATION, TERMINATION
AND OBSOLESCENCE OF TREATIES)
ARTICLE 15 (TREATIES CONTAINING PROVISIONS
REGARDING THEIR DURATION OR TERMINATION)
2. Sir Humphrey WALDOCK, Special Rapporteur,
said that articles 15, 16 and 17 were clearly linked together
and could be regarded as a unity. Article 15 dealt
with the case in which the treaty contained provisions
intended to regulate either its duration or its termination.
Article 16 was, strictly speaking, of the same kind; it dealt
with the case in which the treaty, on its face, appeared
to contemplate an indefinite duration, making no provision
of any kind for denunciation or for termination
by other means; its chief relevance was its link with
article 17. Article 17 dealt with the case in which the
treaty contained no provisions regarding either its duration
or its termination.
3. In article 15 he had stated possible rules, in case the
Commission wished or thought it right to state in terms
the methods by which the duration or termination of a
treaty could be determined, in accordance with the
various types of clause which a treaty could contain for
that purpose. He fully realized that, as already appeared
from one or two of the proposals for amendment, the
article could be dealt with quite differently; indeed,
it could be said simply that ” a treaty shall endure, or
terminate, in accordance with its terms, where the
treaty itself makes provision for that purpose “; if that
method of approach were adopted, it would be possible
to shorten article 15 very considerably.
4. There were very few points in article 15 on which
the matter did not really follow directly from the treaty.
Perhaps the main point was in paragraph 4(c), where
there was a little problem to which he had suggested
an answer, but which he did not think could be said to
be settled by the treaty itself. There were quite a number
of treaties which contained a clause preventing the
treaty from coming into force until a certain number
of ratifications had been obtained; the problem was what
was to happen if denunciations should reduce the
number of parties below the number originally specified.
He had dealt with that point in the commentary, and
proposed a rule.
5. Apart from that problem, the provisions set out in
the article really followed from the particular provisions
of the treaty itself, so that if the Commission wished
to adopt a different method it would be quite possible
to dispense with some of the paragraphs. It was simply
a question of whether, in a codification of that kind, it
was useful or not useful to try to state explicitly the
rules which would, in fact, be applied under the various
forms of treaty clauses.
6. A point which might possibly be raised in connexion
with paragraph 5 was that two possible methods of
termination were sometimes provided for in the same
treaty. Even then, it followed from the treaty itself how
the two clauses would operate in conjunction, but it
might be argued that it was worth noting that particular
point, as he had done in paragraph 5 (a).
7. Article 17 dealt with quite a complicated question
on which there might be different views. If the Commission
were to take a widely different view from the
Special Rapporteur as to the extent to which implied
rights of denunciation were to be understood in treaties,
then the provisions of article 17 could be greatly shortened.