The Vienna Convention On Law Treaties

The Vienna Convention on the Law of Treaties
Author(s): J. S. Stanford
Source: The University of Toronto Law Journal , Winter, 1970, Vol. 20, No. 1 (Winter,
1970), pp. 18-47
Published by: University of Toronto Press
Stable URL: https://www.jstor.org/stable/825403
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J. S. Stanford* THE VIENNA CONVENTION ON
THE LAW OF TREATIES
'History will surely prove this Convention to be one of the most sig
adopted in the course of the progressive development and codificati
national law.' U Thant.
The Vienna Convention on the Law of Treaties was opened for signatur
23 May 1969, marking the climax of almost twenty years of work by t
international legal community. In 1949, the first session of the Internat
Law Commission included the law of treaties among the topics for codifi
tion and appointed J. L. Brierly as Special Rapporteur for the subject. I
ensuing years the Commission considered a series of reports by Profess
Brierly and his successors as Special Rapporteur on the law of treaties,
Hersch Lauterpacht and Sir Gerald Fitzmaurice. Then in 1961 the C
mission appointed Sir Humphrey Waldock as Special Rapporteur on
law of treaties and from 1962 to 1966 carried on an intensive examination
of this subject. During this period sets of articles were provisionally adopted
by the Commission, submitted to governments for comments, and then re-
examined in the light of these comments. Finally, at its eighteenth session
in 1966, the Commission adopted seventy-five draft articles on the law of
treaties, as well as an accompanying commentary.1 The draft articles and
commentary were submitted to the 21st (1966) session of the General
Assembly, which decided to convene an international conference to draw up
a convention on the law of treaties, using the ILC draft articles as the basic
proposal.
The United Nations Conference on the Law of Treaties took place in
Vienna in two sessions, from 26 March to 24 May 1968 and from 9 April
to 22 May 1969, and the Vienna Convention on the Law of Treaties was
opened for signature the following day. Statistics are dry, but a few facts
and figures convey some idea of the effort which went into the preparation
of the Convention. The International Law Commission devoted 292 meet-
ings to study of the subject and preparation and adoption of its draft
*Head, Treaty and Economic Section, Legal Division, Department of External Affairs.
The views expressed herein are the personal views of the writer only.
1. The text of the ILc draft articles and commentary appears in the Reports of the
International Law Commission on the second part of its seventeenth session and on its
eighteenth session. General Assembly Official Records: Twenty-first Session, Supplement
no. 9 (A/6309/Rev.1).
(1970), 20 UNIVERSITY OF TORONTO LAW JOURNAL 18

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VIENNA CONVENTION ON THE LAW OF TREATIES 19
articles and commentary. The subsequent diplomatic conference, in which

110 states participated and to which fifteen international organizations sent
observers, held 141 meetings in Committee of the Whole and Plenary. In
addition to the 75 ILC draft articles, the conference dealt with almost 450
proposals for amendments and new articles.
The first session of the conference devoted most of its time to the discus-
sion and resolution of legal issues to which the ILc draft articles gave rise.
The second session, on the other hand, devoted most of its time and effort
to the difficult political issues presented by the proposed convention on the
law of treaties. Procedurally, the conference considered the draft articles
first in Committee of the Whole, which occupied the whole of the first
session and the first part of the second session and in which articles were
adopted by a simple majority, then in Plenary, which occupied the last four
weeks of the second session and in which articles recommended by the
Committee of the Whole were finally adopted. Each article had to receive
a two-thirds majority vote in Plenary in order to be included in the Con-
vention.
Any review of a convention on a subject as complex as the law of treaties
must, for space reasons, be highly selective. The writer has already com-
mented on the more significant legal issues dealt with at the first session.2
The present article first discusses the major political issues confronted by
the conference, for it was upon the resolution of these issues that the success
or failure of the conference turned. The article then examines the Con-
vention itself, with particular reference to the changes made by the con
ference to the draft articles proposed by the International Law Commissio
While most of the time of the conference was devoted to resolving the le
issues raised by the various draft articles, two major political issue
dominated the conference, particularly at the second session, and cam
within a hair's breadth of bringing about its failure. These issues were: fir
universal participation in general multilateral treaties and, second, t
procedures for the peaceful settlement of disputes arising out of the appli
tion of the articles in the Convention which establish grounds for t
invalidity, termination, suspension, or withdrawal from treaties.
The question of universal participation arose in two contexts. The first
was a proposal to introduce in the body of the Convention a provisi
establishing, as a general rule of treaty law, the principle that all states ar
entitled to participate in all general multilateral treaties. The second was
the discussion of the final clauses governing participation in the treaties
Convention itself. This question occupied all or part of twelve meetings
the conference.
Although this issue, which arises in one form or another in the preparation
of most general multilateral treaties, is commonly referred to as 'universality,'
the problem is really one of recognition. No one seriously questions the
2. 'United Nations Law of Treaties Conference: First Session,' 19 U.T.L.J. 59 (1969).

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20 UNIVERSITY OF TORONTO LAW JOURNAL
principle that the largest possible number of states should be able to adhere
to general multilateral treaties. Members of the international community
have differing views, however, on whether certain territorial entities, of
which East Germany is the prime example (Biafra was another), are sover-
eign states, and it is in the application of the principle of universality to these
territories whose legal status is disputed that the difficulty arises. Those who
seek to advance the claim of a disputed entity to statehood wish to enable
the entity to participate in treaties as a state, while those who dispute the
claim to statehood object to the adoption of any procedures which would
enable the disputed entity to adhere to treaties or otherwise conduct itself
as a state. At the treaties conference the issue was whether the Convention
was to contain provisions which would have the effect of permitting such
entities to adhere to all general multilateral treaties and to the treaties
Convention in particular. The advocates of such provisions urged that the
concept of sovereign equality of states and the necessity of promoting the
widest possible acceptance of the rules of law contained in general multi-
lateral treaties required the widest possible participation in such treaties.
Those who opposed provisions which would allow disputed entities to
adhere to general multilateral conventions replied that the international
community should not be obliged to treat as a state every entity which
claims to be a sovereign state. In this view, the question whether an entity
is a state is a political issue which, in the absence of any other organ to
determine claims to statehood, ought to be resolved in the General Assembly
as the main political organ of the United Nations. They pointed to the fact
that even the most general of all multilateral treaties, the United Nations
Charter, requires a vote of the General Assembly as a prerequisite to parti-
cipation and to that extent is not 'universal' in the sense of authorizing
participation by unilateral action, the sense in which the proponents of
universality use the term. With respect to the proposal of general applica-
tion, the opponents of 'universality' argued further that it is for the parties
negotiating the treaty, rather than for the treaties Convention, to determine
who may become parties to each particular treaty.
The proposal for a new article which would have permitted the disputed
entities to adhere to all general multilateral treaties, was made at the first
session but, along with other politically controversial articles, was deferred
for consideration in Committee of the Whole at the second session. Follow-
ing prolonged debate the proposal for a new article was defeated in Com-
mittee of the Whole, and subsequently in Plenary, by a rather large majority.
Discussion of the participation provisions of the treaties Convention itself
centred on two competing texts: one, the traditional Vienna formula, which
opens participation to 'all States Members of the United Nations or of any
of its specialized agencies or of the International Atomic Energy Agency or
parties to the Statute of the International Court of Justice and by any
other State invited by the General Assembly of the United Nations to

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become a party to the Convention,' the other, the Moscow formula, which
opens participation to 'all States' without further qualification.
The difficulty to which the 'all States' formula gives rise is perhaps best
explained in a statement by the UN Secretary General. During the General
Assembly debate in 1963 the Secretary General was asked to indicate the
practice he would follow if the 'all States' participation clause were in-
corporated in a treaty of which he was the depositary. He replied that as
depositary, he must ascertain that any instrument of accession to the treaty
emanates from an authority entitled to become a party to the treaty in
question. His reply continued:
There are certain areas in the world the status of which is not clear. If I
were ... to receive an instrument of accession from any such area, I would b
in a position of considerable difficulty, unless the Assembly gave me explici
directives on the areas coming within the 'any State' formula. I would not wish
to determine on my own initiative the highly political and controversial que
tion whether or not the areas, the status of which was unclear, were States
within the meaning of the amendment to the draft resolution now being con
sidered. Such a determination, I believe, falls outside my competence.
In conclusion, I must therefore state that if the 'any State' formula were t
be adopted, I would be able to implement it only if the General Assembly
provided me with a complete list of the States coming within that formula
other than those which are Members of the United Nations or the specialize
agencies, or parties to the Statute of the International Court of Justice.8
The Moscow formula is contained in the Partial Test Ban Treaty,4 th

Outer Space Treaty,5 the Agreement on the Assistance and Return o
Astronauts,0 and the Nuclear Non-Proliferation Treaty.' In each case, how-
ever, it is coupled with a multiple depositary system under which USA, the
USSR, and the UK are joint depositaries. Thus, although the UK and th
USA refused to accept East German signature or ratification of these treaties
the Soviet Union has accepted East German signature and ratification i
respect of the first three and signature in respect of the fourth. The Moscow
formula and multiple depositary system amount, in effect, to an authoriza-
tion to any one of the three depositaries to decide whether an entity seekin
participation in a treaty is a state.
During the treaties conference Ghana and India, in an effort to achieve
a compromise between the Vienna and Moscow formulae, proposed th
amendment of the Vienna formula to add two new categories to the classe
3. General Assembly, 1258th meeting, 18 November 1963.
4. The Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space
and Under Water. Done at Moscow, 5 August 1963 cTS 1964/1; UNTS 480/43.
5. The Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Including the Moon and Other Celestial Bodies. Done at Washing
ton, London, and Moscow, 27 January 1967. BTS 1968/10; TAS 6347.
6. The Agreement on the Rescue of Astronauts, Return of Astronauts, and the Retur
of Objects Launched into Outer Space. Done at London, Washington, and Moscow, 22
April 1968. BTS 1959/56; TIAS 6599.
7. The Treaty on the Non-Proliferation of Nuclear Weapons. Done at London
Washington, and Moscow, 1 July 1968, British Command Paper 3940.

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of states authorized, under the Vienna formula, to participate in the treaties

Convention, namely parties to the Partial Test Ban Treaty and parties to
the Outer Space Treaty. To overcome the Secretary General's problem
concerning his functions as depositary, they proposed that the Austrian
government be the 'Initial Depositary' and the Secretary General the 'Final
Depositary' and that all instruments of ratification and accession be de-
posited with the Austrian government and transmitted by it to the Secretary
General who would be obliged to receive them.
Because the two treaties to which the Ghana-India proposal related
contain 'all States' participation clauses, the effect of the amendment was
to convert the Vienna formula into an 'all States' formula with the addi-
tional feature, which some supporters of the principle of universality con
sidered objectionable, of requiring any disputed territory which wished to
accede to the treaties Convention to enter by means of the 'gateway' of the
quite unrelated arms control treaties. As a result, the Ghana-India amend-
ment received no more votes in Committee of the Whole than did the
Moscow formula. Both were defeated and the Vienna formula was accep
by a majority of more than two-thirds, indicating that it would i
likelihood be adopted in Plenary. Later events proved, however, t
despite the voting results in Committee of the Whole the issue of universalit
in the Convention was far from resolved.
Debate over procedures for the settlement of disputes arising out of the
application of the articles establishing grounds for challenging the validity
of treaties occupied even more of the conference's time than the universality
question. All or part of nine meetings of the Committee of the Whole at
the first session and, at the second session, eight further meetings of Com-
mittee of the Whole and seven Plenary meetings were devoted to this issue.
The draft articles prepared by the International Law Commission in-
cluded an article setting out the procedures to be followed by a party claim-
ing that a treaty is invalid or alleging a ground for terminating, withdrawing
from, or suspending the operation of a treaty under the provisions of the
other draft articles. The ILC text provided that, in the event of an objection
to a claim of invalidity, etc., 'the parties shall seek a solution through the
means indicated in article 33 of the Charter of the United Nations.' Article
33 provides for 'negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.' The ILC draft article made no pro-
vision for automatically available procedures for compulsory third-party
settlement of these disputes. Recourse to any of the steps referred to in
article 33 required the special agreement of the disputing parties.
The ILC recognized both the importance of this article and the short-
comings of the text which the Commission had adopted, as appears from
the commentary which accompanied the ILC text:

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Many members of the Commission regarded the present article as a key article
for the application of the provisions of the present part dealing with the
invalidity, termination or suspension of the operation of treaties ... the Com-
mission considered it essential that the present articles should contain
procedural safeguards against the possibility that the nullity, termination or
suspension of the operation of a treaty may be arbitrarily asserted as a mere
pretext for getting rid of an inconvenient obligation ...
In 1963, some members of the Commission were strongly in favour of
recommending that the application of the present articles should be made
subject to compulsory judicial settlement by the International Court of Justice,
if the parties did not agree upon another means of settlement.
After referring to the general obligation of states under article 33 of the

Charter and 'the present state of international opinion in regard to accept-
ance of compulsory jurisdiction,' the commentary continues: 'The Com-
mission concluded that the article ... represented the highest measure of
common ground that could be found among Governments as well as in the
Commission on this question.' This conclusion of the Commission reflected
the view of those states, most notably the eastern European group, which
consider that a requirement to agree in advance to submit disputes to
compulsory adjudication is an unacceptable derogation from their national
sovereignty.
There was a large body of opinion at the treaties conference, however,
which took the contrary view. This group, which included virtually all the
western states as well as many from every other geographical area but
eastern Europe, took the view that the invalidity, termination, and suspen-
sion articles would be acceptable only if accompanied by satisfactory safe-
guards in the form of procedures for compulsory third-party settlement of
disputes. If states wished formally to incorporate into treaty law concepts
drawn from domestic law and containing such a high subjective content as
is found in the concepts of fraud, error, and corruption, they should be
prepared to accept at the same time the discipline of domestic legal systems
in the form of independent adjudication of disputes arising in the applica-
tion of these principles. A number of states, including the major treaty-
making nations of the world, whose abstention from the Convention would
seriously impair its usefulness, expressed the view that without satisfactory
safeguards the invalidity articles, and hence the Convention as a whole,
would be unacceptable.
Proposals for an article on compulsory settlement of the invalidity disputes
were debated, but not voted upon, at the first session. At the second session,
a proposal by 19 European, Latin American, African, and Middle Eastern
states for a dispute settlement procedure, consisting of conciliation followed
if necessary by compulsory arbitration, in respect of claims of invalidity and
termination was adopted by the Committee of the Whole by a simple
majority of 54 (including Canada) in favour, 34 opposed, and 14 absten-

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tions. When the proposed new article came before Plenary it was debated
again at length. The article was finally put to the vote less than a week
before the deadline by which the conference had to conclude its substantive
work. The result was 62 (including Canada) in favour, 37 opposed, and
10 abstentions. The proposed article had failed to obtain the two-thirds
majority necessary for its adoption in Plenary and inclusion in the Con-
vention. In addition, the universality issue had still to be disposed of in
Plenary. Opinion among delegates had hardened on both issues and for the
first time delegates faced the possibility that the UN's most ambitious
codification conference might end in failure.
Several days of intensive informal consultations followed while the
Plenary meetings disposed of remaining non-controversial issues. During
this period the initiative for proposing a compromise solution passed to the
Afro-Asian group, whose support would be necessary to secure acceptance
of any compromise. Then, on the eve of the conclusion of the conference,
the crisis came to a head. At the 34th Plenary meeting a proposed general
article on universality, which had been defeated in Committee of the Whole
and re-introduced in Plenary, was defeated by a vote of 34 in favour, 50
(including Canada) opposed, and 22 abstentions. Then Dr T. O. Elias of
Nigeria, who had been Chairman of the Committee of the Whole, intro-
duced on behalf of a group of ten African and Asian sponsors a 'package'
proposal designed as a compromise on both the universality and disputes
settlement issues. The first element in the package, designed to meet the
views of western states and others on disputes settlement, was a new article
providing for the compulsory jurisdiction of the International Court of
Justice in respect of claims of invalidity or termination of a treaty for
conflict with a norm of jus cogens, and for compulsory conciliation only
(not arbitration) in respect of disputes arising out of the other invalidity
and termination articles of the Convention. The second part of the package,
designed to meet the views of the eastern European states and others on the
question of universality, related to participation in the treaties Convention
rather than in all general multilateral treaties. It took as its point of depar-
ture the last of the categories mentioned in the Vienna formula participation
clause, 'any other State invited by the General Assembly of the United
Nations to become a party to the Convention,' and consisted of a Declara-
tion on Universal Participation in the Vienna Convention on the Law of
Treaties. In the preamble of the Declaration the Conference asserts that
'multilateral treaties which deal with the codification and progressive de-
velopment of international law, or the object and purpose of which are of
interest to the international community as a whole, should be open to
universal participation.' The principal operative paragraph of the Declara-
tion 'Invites the General Assembly to give consideration, at its twenty-fourth
session, to the matter of issuing invitations in order to ensure the widest
possible participation in the Vienna Convention on the Law of Treaties.'

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The fact that the Declaration did not require states which supported it
also to support an invitation by the General Assembly to any particular
entity to accede to the treaties Convention, plus the provision in the new
article for the compulsory jurisdiction of the Court on the jus cogens
articles, made the compromise package unacceptable to the eastern Euro-
peans. Almost all the western states accepted the package, though with
considerable reluctance in most cases because of the absence of any provision
for compulsory arbitration in respect of the application of the invalidity and
termination articles other than those relating to jus cogens.
Following a brief debate, the package was put to the vote as a whole and
adopted by a vote of 61 (including Canada) in favour, 20 opposed, and
26 abstentions. The new article became article 66, with accompanying
annex, in the Convention. Then the conference proceeded to consider the
final clauses. The 'all States' participation clauses were reintroduced and
defeated and the Vienna formula participation clauses adopted. All the
major political obstacles had been surmounted at the eleventh hour and
only the tidying up remained. This 34th Plenary meeting, which took place
on the afternoon of 21 May ended at 8:30 P.M. As delegates left the
Festsaal of the Neue Hofburg they passed tables already set and decorated,
awaiting their return to attend a dinner offered by the President of the
Conference. Fortunately they were able to look forward to the balance of
the evening as a celebration of the success of the conference. It could very
easily have been a wake.
The substance of the compromise merits a brief comment. With respect
to the peaceful settlement of disputes, the absence of a compulsory arbitra-
tion procedure applying to all the invalidity articles is a serious weakness,
but the provision for compulsory conciliation is a distinct improvement over
the merely hortatory reference to 'the means indicated in Article 33 of the
Charter,' contained in the ILC text.
The provision for reference of jus cogens disputes to the International
Court of Justice is clearly preferable to the arbitration of such disputes,
which was the procedure provided for in the article adopted by the Com-
mittee of the Whole. First, the question whether a treaty conflicts with a
rule of jus cogens involves primarily a consideration of legal issues and is
therefore much more suitable for judicial settlement than arbitration.
Second, while arbitration is appropriate for disputes between parties over
the application of a treaty, the jus cogens articles involve the imposition
from outside of a restriction on the action of parties which have concluded
or continue to apply a treaty in contravention of a rule of jus cogens.
Consequently a case in which the jus cogens articles are applied may well
be quite unsuitable for arbitration.
The acceptability of a provision for the compulsory jurisdiction of the
Court, and the fact that a Swiss proposal for an article placing the whole
of the Convention under the compulsory jurisdiction of the Court received

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a simple majority (41, including Canada, in favour, 36 opposed, 27

abstentions) in Plenary, gives reason to believe that the Court may be re-
gaining some of the stature it lost in the eyes of many members of the
international community following its 1966 decision in the South West
Africa case.8
The General Assembly has decided to postpone consideration of the
Declaration to its twenty-fifth (1970) session, and it is therefore not yet
possible to assess the full impact of the conference's action on this question.
The essential issue at stake, of course, is recognition, and the conference
debate on universality was useful in that it included a great many state-
ments by representatives that participation by a disputed entity in a general
multilateral treaty does not entail recognition of that entity by other states
parties to the treaty. If East Germany purports to adhere to other treaties,
as it has purported to adhere to the Partial Test Ban and Outer Space
treaties, it is still open to other states who wish to do so to take the view
that, as East Germany is not a state, it lacks the capacity to adhere to the
treaty. In such a case the treaty would not be in force between the non-
recognizing state and East Germany.
There is at least one difficulty, however, which this purely subjective
approach does not resolve. The participation clauses proposed in the Ghana-
India amendment called on the Secretary General, as Final Depositary, to
notify signatories and contracting parties of the entry into force of the Con-
vention following the deposit of the required number of instruments of ratifi-
cation or accession. Had East Germany purported to ratify or accede to the
treaties Convention under the Ghana-India or Moscow formulae, before
its entry into force, the Secretary General would have been obliged to take
a position on the validity or otherwise of the East German instrument in
determining whether it counted as one of the number required for entry into
force.
This problem has not yet arisen in the application of the Moscow for-
mula-multiple depositary system. The Partial Test Ban Treaty required only
ratification by the three depositary states for entry into force. The Outer
Space Treaty and the Agreement on the Assistance and Return of Astro-
nauts required ratification by the three depositaries and two others for entry
into force. By the time the former was ratified by the three depositaries,
several other states had already ratified so that the East German ratification
was not relevant to entry into force. In the case of the latter, East German
ratification took place after initial entry into force.
The problem may well arise, however, in connection with the Non-
Proliferation Treaty which requires ratification by forty states in addition
to the three depositaries. The UK has already ratified and the USSR and USA
8. South West Africa, Second Phase, judgment; (1966) I.C.J. Reports, at 6, in
which the Court held (on the casting vote of its President) that Ethiopia and Liberia
lacked legal status to maintain an action against South Africa for alleged contraventions
of the League of Nations Mandate for South West Africa.

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are reported to have completed all internal action necessary to permit ratifica-
tion, though their instruments of ratification have not yet been deposited. East
Germany has already deposited its instrument in Moscow. If the USA and
USSR ratify before forty non-depository states have done so, there will almost
inevitably be a dispute, between those who recognize the East German ratifi-
cation and those who do not, concerning the date of entry into force of the
treaty.
As mentioned earlier, the basic proposal before the conference consisted of

the International Law Commission's draft articles on the law of treaties.
The Convention follows the ILc draft very closely in most of its provisions
and the ILC commentary on its draft articles is consequently an indispensable
companion to the Convention. Given the enormous complexity of the sub-
ject matter, the ILC draft articles stood up remarkably well in the con-
ference. On very few matters of substance did the conference reverse the
opinion of the Commission and on such highly controversial doctrinal issues
as the regime governing reservations and the interpretation of treaties
(especially the role of the travaux pre'paratoires) the conclusions of the Com-
mission were adopted virtually unchanged by the conference.' This is a
tribute to the Commission, and in particular to its four successive Special
Rapporteurs.
The Convention consists of eight parts and an annex. Part I, the Intro-
duction, contains the definitions article and articles on the scope of the
Convention. Part II, on the conclusion and entry into force of treaties,
consists of three sections. The first, on the conclusion of treaties, includes
articles on capacity, full powers, adoption and authentication of the text,
and the various means by which a state may express its consent to be bound
by a treaty. The second section deals with reservations and objections to
reservations and the third with the entry into force (including provisional
application) of treaties. Part m of the Convention deals with the observance,
application, and interpretation of treaties.'0 In addition to the important
9. For a discussion of these issues, see supra note 2, at 61-4.
10. Articles 19 and 20 on reservations and objections to reservations and articles 31
and 32 on the general rule and supplementary means of interpretation raised two of the
most controversial legal (as distinct from political) issues faced by the conference. The
discussion of these two issues took place almost entirely at the first session. In relating
how these issues were dealt with by the conference in determining the text in the Con-
vention, there is little the writer can add to the comment appearing in the note referred
to in note 2 above. Reference should be made, however, to the effect of an objection to
a reservation. The ILC text, adopted by the Committee of the Whole, provided that
(with certain exceptions) where one state objects to a reservation by another state the
treaty does not enter into force between the two states unless the objecting state expresses
a contrary intention. As a result of a Soviet initiative the Plenary reversed this presump-
tion. Under the Convention, therefore, if a state enters a reservation which another state
declines to accept, the latter state may object to the reservation. But if it does no more the
treaty is in force between the two states except to the extent of the reservation (article
21(3)). If the objecting state considers the reservation so objectionable that it is not pre-
pared to accept the reserving state as a treaty partner, it must go one step further and
formally declare that it does not consider the treaty to be in force between itself and the
reserving state.

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and controversial articles on interpretation, this part includes articles on

pacta sunt servanda, internal law, territorial scope, the application of suc-
cessive treaties, and the effect of treaties on third states. Part Iv contains
articles on the amendment and modification of treaties.
Part v is probably the most important and was certainly the most
politically sensitive and controversial part of the Convention. In it are set
out, exhaustively, the grounds for invalidity, termination, and suspension of
the operation of treaties, the procedures to be followed in dealing with
claims of invalidity, termination, withdrawal, or suspension, and the con-
sequences of invalidity, termination, or suspension. The grounds for in-
validity established by the Convention merit specific mention. They are (i)
manifest violation of a provision of internal law of fundamental importance;
(ii) a restriction on the authority of a representative, if it was notified to
the other negotiating states; (iii) an error concerning a fact which formed
an essential basis of the state's consent to be bound by the treaty; (iv) the
fraudulent conduct of another negotiating state; (v) corruption of a repre-
sentative of a state; (vi) coercion of a representative of a state; (vii)
coercion of a state by the threat or use of force; and (viii) conflict with a
norm of jus cogens. The grounds for termination or suspension established
in the Convention are, for the most part, based either on the terms of the
treaty or the subsequent agreement of the parties. However, the section on
termination also contains articles on the effect of breach of a treaty, im-
possibility of performance, fundamental change of circumstance, and the
emergence of a new norm of jus cogens.
Following part vi containing 'miscellaneous provisions,' the Convention
concludes with part vii, containing provisions on the designation and func-
tions of depositaries, notifications and communications, correction of errors,
and registration and publication of treaties, and part viii containing the final
clauses. The annex contains details concerning the conciliation procedure
established under article 66 for dealing with certain claims of invalidity,
termination, withdrawal, or suspension made under part v of the Con-
vention.
Because the ILC draft articles were not exhaustive, and because the con-
ference did not consider it wise to attempt to deal with areas of treaty law
on which it did not have the benefit of the studies and recommendations
of the Commission, the Convention is not exhaustive of the law of treaties.
By article 1, 'The present Convention applies to treaties between States.'
The Convention therefore does not extend to the treaty-making activities of
international organizations and other non-state subjects of international law.
Article 73 specifically excludes from the application of the Convention
questions of state succession, state responsibility, and the effect of an out-
break of hostilities between states. The first two of these three exclusions, as
well as the operation of the most-favoured-nation clause, are the subject of
separate studies currently underway in the ILC.

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While the conference made numerous amendments, both in substance

and in drafting, to the ILC text, there were only three substantive provisions
proposed by the ILC which were rejected by the conference and consequently
omitted from the Convention.
The first of these concerned a question of particular interest to Canada -
the treaty making capacity of members of a federal state. The ILC draft
article on capacity to conclude treaties consisted of two paragraphs: '1.
Every State possesses capacity to conclude treaties. 2. States members of a
federal union may possess a capacity to conclude treaties if such capacity
is admitted by the federal constitution and within the limits there laid
down.' Paragraph 2 of the article had been adopted by the Commission
(by a vote of seven in favour, three opposed, and four abstentions in the
25-member Commission) on the ground that the practice exists in certain
federal states and should therefore be mentioned.
Paragraph 2 encountered vigorous opposition from federal states at both
the first and second sessions. At the first session Australia, Mexico, and
Malaysia proposed the deletion of the paragraph, which was also opposed
in varying degrees by Austria, Brazil, Canada, the Federal Republic of
Germany, India, the USA, and Venezuela. It was apparent from the ILC
text that the word 'States' was used in the two paragraphs of the article in
two quite different senses. In the first paragraph, 'State' referred to an
independent sovereign state, whereas in paragraph 2, 'States' referred to
entities which, ex hypothesi, possessed only a limited treaty-making capacity,
or possibly even none at all, and were therefore not sovereign states in
international law. At the first session the Committee of the Whole adopted
paragraph 2, amended only by the deletion of the word 'States,' by a
narrow majority. When the article came before Plenary at the second
session it was the subject of much more adverse comment by both federal
and unitary states. The latter argued that, by failing to take account of the
constitutive effect of recognition in international law, the paragraph made
the constitution - an internal law of the federal state - alone determinative
of status and capacity in international law, thereby establishing a principle
potentially disruptive of state representation in the international community.
For the federal states, however, the danger posed by paragraph 2 was more
immediate and direct. The constitution of a state is an internal law of the
state and its interpretation falls within the exclusive jurisdiction of the
internal tribunal of the federal state having jurisdiction in constitutional
matters. By failing to recognize that only the federal state may interpret its
own constitution, by failing to specify that it was for the federal state itself,
through its appropriate organs, to determine whether the constitution con-
ferred a treaty-making capacity upon members of the federation, the para-
graph amounted to an invitation to third states to interpret the federal
constitution for themselves and thereby intervene in the internal affairs of
the federal state. For federal states, therefore, the issue was non-intervention,

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a principle which most federal states considered would be endangered by

paragraph 2. In the Plenary debate on the article on capacity, all federal
states represented at the conference, except those in eastern Europe, opposed
paragraph 2. In addition to statements in opposition to paragraph 2 by a
number of unitary states, representatives of Argentina, Australia, Brazil,
Cameroon, Canada, Federal Republic of Germany, India, Mexico, Switzer-
land, Tanzania, and the USA, all federal states, spoke against paragraph 2.
The common view of the federal states were reflected in the statement by
the representative of India, who said that 'paragraph 2 might give the
impression that a State could claim the authority of international law in
seeking to interpret the constitution of another State, a development which
could amount to intervention of the most serious kind.'11 The Swiss delegate
noted that, with respect to treaty making capacity of its members, 'it was
exclusively for the central authorities of the federal State to interpret the
constitution of the State.'12 Even those who spoke in Plenary in support of
paragraph 2 (the USSR, Ukrainian SSR, Byelorussian SSR, Bulgaria, Poland,
and Cuba) recognized that the issue raised by the paragraph was that of
non-intervention. The Polish representative asserted that, from the point of
view of international law, the question whether the members of a federal
union had treaty-making capacity could only be settled by the domestic law
of the federal state concerned, and 'other States could do no more than take
cognizance of that decision.'13 Similarly, the Soviet representative had noted,
during discussion of the article in Committee of the Whole, that 'Any
question as to whether a state member of a federal union possessed capacity
to conclude treaties must be decided in accordance with the constitutional
rules of the State concerned and no outside State was entitled to regulate
the question.'14
Because paragraph 2 is of particular interest to Canada, having been
advanced at the Constitutional Conference in February 1969 in support of
a treaty-making capacity for the provinces,15 and because the attitude of
the international community of states is of significance in determining ques-
tions of international capacity, relevant portions of the text of the Canadian
statement by the Canadian delegate, Ambassador Max H. Wershof, Qc, and
the results of the roll-call vote are set out in an annex to this article.
By a vote of 28 in favour of paragraph 2, 66 opposed, and 13 abstentions
the conference decided to delete the paragraph. The paragraph, which
required a two-thirds affirmative vote for inclusion in the Convention, in
fact received less than one-third. The overwhelming majority against the
11. Provisional Summary Record of the Eighth Plenary Meeting, at 5.
12. Ibid., at 7.
13. Provisional Summary Record of the Seventh Plenary Meeting, at 21.
14. UN Conference on the Law of Treaties, First Session, Official Records,
A/CONF.39/11, at 64.
15. Constitutional Conference, Continuing Committee of Officials: Working Paper on
Foreign Relations; Notes Prepared by the Quebec Delegation. Quebec, 5 February 1969,
at 13.

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draft text constituted a clear rejection by the international community of

the possibility, implicit in paragraph 2, that outside states may decide for
themselves whether the constitution of a federal state allows its component
parts to make treaties. The speeches in the Plenary debate on the article
confirm unequivocally the illegal character of any attempt by one state to
intervene in the affairs of another by purporting to interpret its con-
stitution.16
A major share of the limited support which existed for paragraph 2
came from the Soviet Union and its associates, a fact attributable to Soviet
concern for the international status of Byelorussia and the Ukraine. Had it
not been for this preoccupation of the Soviet Union with the special status
of its constituent republics,1 the Convention would almost certainly have
included a provision asserting the control of the central authority over the
treaty making activities of members of a federal state. A proposal to this
effect by Austria in Committee of the Whole at the first session failed of
adoption by only six votes.
Article 15(a) of the ILc draft articles dealt with the obligations of a state
arising from a treaty prior to the treaty's entry into force. The article pro-
vided in part that 'A State is obliged to refrain from acts tending to
frustrate the object of a proposed treaty when: (a) It has agreed to enter
into negotiations for the conclusion of a treaty, while these negotiations are
in progress ...' The Commission had taken the view not only that an obliga-
tion to refrain from acts calculated to frustrate the object of a treaty exists
from the time of signature subject to ratification but that the obligation first
arises at an earlier stage, when the state agrees to enter into negotiations for
the conclusion of the treaty. This obligation was considered to arise from
the duty of states to act in good faith in their relations with each other at
every stage of the treaty-making process. While no delegate questioned the
importance of the principle of good faith upon which the provision was
based, the conference took the view that the principle set out in sub-
paragraph (a) was not codification of existing law but the enunciation of a
proposed new principle of law, and that it is exceedingly difficult if not
impossible, as a practical matter, to anticipate the results of negotiations in
order to determine what acts might be considered to frustrate the object of
a treaty which had not yet been drawn up. For this reason the conference
decided by a substantial majority (which included Canada) to delete sub-
paragraph (a).
16. This principle is confirmed by the ILC itself in its commentary to draft article 43,
which asserts that 'any questioning on constitutional grounds of the internal handling
of the treaty by another Government would certainly be regarded as an inadmissible
interference in its affairs.'
17. In the Plenary debate on the Article on capacity the representative of the
Ukraine claimed the status of independent sovereign states not only on behalf of th
Ukraine but on behalf of all fifteen republics of the USSR. The fact that the internationa
community deals only with two of the fifteen Soviet republics illustrates the significanc
of the role of recognition in determining international capacity.

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Article 38 of the ILC draft articles provided that 'A treaty may be modified
by subsequent practice in the application of the treaty establishing the
agreement of the parties to modify its provisions.' This provision is to be
distinguished from article 31(3) (b) of the Convention, under which sub-
sequent practice in the application of a treaty which establishes the
agreement of the parties regarding its interpretation shall be one of the
factors to be taken into account in interpreting the treaty. Whereas prac-
tice, to be considered as interpretative under article 31, would have to be
consistent with the provisions of the treaty, ILC draft article 38 dealt with
the case in which the subsequent practice was inconsistent with the pro-
visions of the treaty. The ILC commentary accompanying draft article 38
makes it clear that 'modification' was used in the article in the sense of
'amendment.' In support of the principle embodied in article 38, the com
mentary referred to the decision in a 1963 arbitration between France an
the USA by an arbitral tribunal two of whose members were members of
the Commission at the time the draft articles on the law of treaties were
adopted. The conference raised several objections to ILO draft article 38
The first concerned the treaty-making power and the constitutions of states
Many state constitutions prescribe definite procedures which must be fol-
lowed before the state may bind itself to a treaty. These procedures apply
equally to the amendments of treaties. Under proposed article 38, however,
a state could find itself bound by an amendment to a treaty as a result of
nothing more than the inaction of officials, and certainly without the ob-
servance of any constitutional requirements. This problem would be parti-
cularly acute for states whose constitutions require legislative approval of a
treaty both for its conclusion on the international plane and to give it
provisions force of law on the internal plane. In such cases a state would
not have the legislative basis to give effect within its territory to a modifica
tion resulting only from subsequent practice in accordance with the pro-
posed article. A second major objection to article 38 was that it would tend
to derogate from the rule pacta sunt servanda by placing a premium on
conduct which was in fact a violation of the treaty. A state could conduct
itself in a manner inconsistent with its treaty obligation in the hope o
securing, through tacit acquiescence, a substantive modification of these
obligations. Correspondingly, to prevent this sort of conduct, a state would
be required to object to every violation of its treaty rights, no matter how
technical or unimportant, lest by its failure to do so it would forfeit the
rights in question. The effect of the proposed article therefore, would be to
introduce an undesirable rigidity in treaty relations between states. Th
draft article was consequently deleted in Committee of the Whole by a
majority of better than three to one.
Undoubtedly the most significant addition by the conference to the draft
articles prepared by the ILC is article 66 and the annex to the Convention,
establishing procedures for conciliation and judicial settlement. This addi-
tion is discussed above in comments on political issues before the conference.

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There were a number of other new provisions written into the Convention
by the conference which merit brief comment.
The ILC draft contained three articles concerning the manner in which a
state may express its consent to be bound by a treaty. These dealt respec-
tively with consent expressed by signature, by ratification (including accep-
tance and approval), and by accession. These three draft articles were
incorporated in the Convention as articles 12, 14, and 15 respectively. How-
ever, the conference added two new articles on the method of expressing
consent to be bound. The first of these is article 11, which is intended to
serve as an introductory provision to the four articles which follow it.
Article 11 enumerates the three means referred to by the ILC by which a
state may express its consent to be bound by a treaty, and adds a fourth,
the exchange of treaty instruments. The article goes on to provide that
consent may be expressed 'by any other means if so agreed.' Article 11 thus
establishes that the means of expressing consent specifically referred to in
the article and dealt with in the four articles immediately following are not
exhaustive and that states are free to establish other procedures by agree-
ment among themselves. This saving provision is intended to cover the
practice, which has been established in certain recent bilateral treaties, of
stipulating that a treaty will enter into force upon notification by one or
both parties of compliance with statutory or constitutional requirements or
the performance of some other acts not specifically covered by the succeed-
ing articles.18 In addition it may also cover the case where newly indepen-
dent states assume by declaration treaty obligations which were initially
incurred on their behalf by the former metropolitan power and which did
not devolve automatically by virtue of the laws of state succession.")
The second new article added to this group of articles by the conference
was article 13, which provides that the consent of states to be bound by a
treaty may be expressed by an exchange of instruments between them. The
most common example of this practice is, of course, treaties in exchange of
note form. Of 494 treaties concluded by Canada in the period 1946 to
1965, 351 were in the form of exchanges of note or exchanges of letters.20
The inclusion of an article dealing specifically with this practice was there-
fore eminently desirable. Article 13 provides that consent is expressed by
an exchange of instruments when '(a) the instruments provide that their
exchange shall have that effect; or (b) it is otherwise established that those
18. The Canada-us Agreement for Co-operation Concerning Civil Uses of Atomic
Energy of 15 June 1955 provides that it shall enter into force 'on the date of receipt by
the Government of Canada of a notification from the Government of the United States
of America that the period of thirty days required by Section 123 (c) of the United
States Atomic Energy Act of 1954 has elapsed.' Four amendments to that Agreement
all provide that they shall enter into force upon notification by one or both parties that
internal legal requirements have been complied with; CTs 1962/10.
19. Sir Humphrey Waldock, Expert Consultant to the conference, queried the view
of the Polish representative that post-independence declarations could properly be con-
sidered as acts expressing a State's consent to be bound by a treaty. (Provisional Sum-
mary Record of the Ninth Plenary Meeting, at 17.)
20. Gotlieb, Canadian Treaty-Making (1968), at 57.

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States were agreed that the exchange of instruments would have that
effect.'21
A discussion of the conference's consideration of the methods of expressing
consent to be bound to a treaty would be incomplete without reference to
a problem which had concerned the ILC when it prepared the draft articles
and which received a great deal of attention during the first session of the
conference. Many delegations considered that the Convention should estab-
lish a residual rule concerning entry into force, raising a presumption which
would operate in the absence of any indication of the intention of the
parties. Delegates were unable to agree, however, on whether in such cases
the residual rule should provide that consent to be bound is expressed by
signature or by ratification. The Convention, therefore, contains no residual
rule operative in respect of treaties which do not specify the method of
expressing consent to be bound.
The draft articles prepared by the ILO included an article on the pro-
visional entry into force of a treaty. Neither that draft article nor the
articles on termination, however, contained any special provision governing
the termination of the provisional application of a treaty. The Commission
had earlier proposed a provision for the termination of the provisional
application of a treaty by agreement between the parties but deleted the
provision from the text finally adopted. In its comments on the ILC text,
the Netherlands government expressed the view that 'a Government should
also be entitled to terminate a provisional entry into force unilaterally if it
has decided not to ratify a treaty that has been rejected by Parliament or
if it has decided for other similar reasons not to ratify it.'22 Similarly the
Swedish comments, in urging a provision for unilateral withdrawal, noted
that '... provisional application is often provided for because internal consti-
tutional procedures have not been completed and ... there is often no
absolute assurance that the outcome will be to confirm the provisional
acceptance of the treaty ...'23 At the first session it was proposed that a
paragraph be added to the ILC text to provide for unilateral termination of
the provisional application of a treaty. This suggestion was adopted in
principle with only a single opposing vote. The principle is embodied in
paragraph 2 of article 25 of the Convention, which provides that 'Unless
the treaty otherwise provides or the negotiating States have otherwise
agreed, the provisional application of a treaty or a part of a treaty with
respect to a State shall be terminated if that State notifies the other States
between which the treaty is being applied provisionally of its intention not
21. The first note in an exchange normally concludes 'I have the honour to propose
that, if the foregoing is acceptable to your government, this Note and your reply to
that effect shall constitute an agreement between our two Governments which shall
enter into force on the date of your reply.' The second note then confirms not only the
substance of the agreement contained in the first note but also the fact that the exchange
constitutes an agreement.
22. Supra note 1, at 141.
23. Ibid., at 163.

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to become a party to the treaty.' The necessity for a special provision

governing termination of provisional application arises largely from the fact
that the executive, after having negotiated the treaty and agreed to its
provisional application, may be unable to obtain the necessary legislative
approval or to accomplish other internal requirements to enable the state
to become definitively bound to the treaty. The text incorporated in the
Convention does not, however, limit the right of unilateral withdrawal to
cases of parliamentary disapproval. Nor does the text place any time limit
on the right of unilateral withdrawal. The question of a possible time limit
was raised but not adopted when the article was debated in Plenary at the
second session. The object of such a time limit would, of course, have been
to prevent a state from accepting the provisional application of a treaty
and then, by delaying ratification indefinitely, retaining for itself a right of
unilateral withdrawal. The effect of article 25(2), therefore, is that a state
which has agreed to apply a treaty provisionally is free to withdraw from
the treaty for any reason and at any time before it expresses its formal
consent to be bound to the treaty.
The ILO draft article on pacta sunt servanda, which became article 26
of the Convention, provided that 'Every treaty in force is binding upon the
parties to it and must be performed by them in good faith.' During the
debate on this article in Committee of the Whole at the first session a
proposal was made to add to the ILO text the following: '... and no p
may invoke the provisions of its constitution or its laws as an excuse for
failure to perform this duty.' A later article in the ILO draft, which bec
article 46 of the Convention, dealt with the question of a state invokin
internal law to invalidate the expression of its consent to be bound
treaty (it may do so only when there has been a manifest violation of
internal law of fundamental importance). The proposed addition to arti
26, however, was directed not to the expression of consent but to the
formance of the obligations of the treaty after the state had become bo
The Committee of the Whole was unanimous in accepting the princ
contained in the proposal, which is but one application of the doctrine
the supremacy of international law on the international plane, but was
of the view that the principle should not be included in an article limi
to the formulation of the rule pacta sunt servanda. In view of the fun
mental importance of the pacta rule, the conference wished to keep
formulation succinct. Accordingly the proposed addition was mad
separate article in the Convention. As finally adopted, article 27 provid
that, without prejudice to article 46, referred to above, 'A party may n
invoke the provisions of its internal law as justification for its failure
perform a treaty.'
Article 60 of the Convention deals with the termination or suspension
a treaty as a consequence of its breach and, as one would expect of
article so fundamental to the law of treaties, was the subject of consider

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discussion at both the first and second sessions of the conference. The first
paragraph of the ILC draft article established the right of termination or
suspension as a consequence of a material breach of a bilateral treaty. The
second paragraph established the right of termination or suspension as a
consequence of a material breach of a multilateral treaty. The third para-
graph defined a 'material breach' and the fourth paragraph provided that
'The foregoing paragraphs are without prejudice to any provision in the
treaty applicable in the event of a breach.'
When this article was considered in Committee of the Whole, the Swiss
representative proposed orally the addition of a fifth paragraph exempting
humanitarian treaties from the operation of the article. The object of the
Swiss proposal was to preserve the obligations of states to observe certain
standards of conduct towards persons, as set out in humanitarian treaties
such as the Genocide Convention and the 1949 Geneva Conventions for
the protection of war victims, by preventing states from invoking the brea
of such a treaty by another state as a ground for violating the essentially
humanitarian provisions of such treaties. Because the amendment had not
been formally submitted it was not voted upon and consequently was not
reflected in the text recommended by the Committee of the Whole to th
Plenary. When the article came before Plenary the Swiss representativ
formally proposed and the Conference adopted an amendment which be-
came the basis for paragraph 5 of article 60. This paragraph reads 'Par
graphs 1 to 3 do not apply to provisions relating to the protection of the
human person contained in treaties of a humanitarian character, in parti-
cular to provisions prohibiting any form of reprisals against persons pro
tected by such treaties.'
The Conference was virtually unanimous in support of the principle in
the Swiss amendment and the adoption of the paragraph provides ye
another example of circumstances in which international law apparently
confers rights on individual persons independent of the rights of states. Y
it is not entirely clear to what extent the text of the paragraph, as it wa
incorporated in the Convention, really represents a step forward in th
protection of human rights by international law.
The Swiss proposal for paragraph 5, which was adopted in Plenary
opened with the words 'The foregoing paragraphs do not apply ...' The
were changed by the Drafting Committee to 'Paragraphs 1 to 3 do no
apply ...' thereby excluding paragraph 4, quoted above, from the operatio
of the new paragraph. The effect of this change by the Drafting Committ
is that while a right of termination or suspension arising from the operatio
of the rules of treaty law codified in the first three paragraphs of article 6
cannot affect the validity of treaty provisions intended to protect the hum
person, it is nevertheless open to the parties to include in the treaty itse
any provisions for its termination or suspension, even provisions mor
permissive than those contained in paragraphs 1 to 3, and these provision

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may be invoked to terminate or suspend even humanitarian provisions of

the kind referred to in paragraph 5.
As appears from the comments of Sir Humphrey Waldock, at the first
session and the Swiss representative when speaking of his amendment in
Plenary,25 the more fundamental provisions in treaties such as the Genocide
Convention and the 1949 Geneva Conventions, designed to protect the
human person, may be said to have acquired the status of customary rules
of international law binding upon states independently of treaty obligations.
They would thus be protected from the operation of article 60 through the
application of article 43.26 The failure to make paragraph 4 of article 60
subject to paragraph 5, however, may imply recognition of a right in states
to 'contract out' of the sort of humanitarian provisions to which paragraph
5 refers.
Thus effective protection for these provisions is found not in paragraph
5 but in article 43 and that protection extends only to those humanitarian
provisions which have acquired the status of rules of customary international
law. Moreover, the distinction between customary rules which are jus cogens
and those which are of a non-peremptory character is, of course, relevant,
and only articles 53 and 64 of the Convention27 will operate to prevent
'contracting out' of humanitarian provisions. Paragraph 5 would have
represented a much clearer step in the entrenchment of humanitarian treaty
provisions in customary international law if the original Swiss text had been
retained and the right to 'contract out' had not been recognized, as it
appears to have been in the present text.
Reference should also be made to two other issues which arose in the
debate on article 60. Some delegates sought, at the first session, to introd
to the article the idea that, in the event of a breach, the response of th
injured party should be proportionate to the nature and extent of the bre
and the extent to which the treaty obligations had already been perform
Because the issue of proportionality was closely related to that of separabil
(article 44 of the Convention) the Committee of the Whole decided to d
with the proposed amendment to the article on breach when dealing wi
the article on separability. When the separability article was subsequent
24. Supra note 14, at 359, para. 76.

25. Provisional Summary Record of the Twenty-first Plenary Meeting, at 9.
26. Article 43 provides that 'The invalidity, termination or denunciation of a treat
the withdrawal of a party from it, or the suspension of its operation, as a result of
application of the present Convention or of the provisions of the treaty, shall not in
way impair the duty of any State to fulfil any obligation embodied in the treat
which it would be subject under international law independently of the treaty.'
27. The texts of the articles are as follows. Article 53: 'A treaty is void if, at t
time of its conclusion, it conflicts with a peremptory norm of general international
For the purposes of the present Convention, a peremptory norm of general internati
law is a norm accepted and recognized by the international community of States
whole as a norm from which no derogation is permitted and which can be modified o
by a subsequent norm of general international law having the same character.' Ar
64: 'If a new peremptory norm of general international law emerges, any existing tre
which is in conflict with that norm becomes void and terminates.'

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debated, an amendment to introduce the concept of proportionality to that

article was adopted (article 44 (3) (c) ) but a proposal to include a paragraph
which would have applied the concept of proportionality to article 60 was
defeated. The objection was raised, in respect of article 60, that because
the article allowed for termination or suspension only in the event of a
material breach, which was defined as a repudiation of the treaty or the
violation of a provision essential to the accomplishment of its object or
purpose, article 60 would only operate in cases where the breach was so
serious that termination of the whole treaty was justified. This reasoning
appears inconsistent, however, with the decision of the Plenary at the second
session to allow separability at the option of the injured party or parties in
respect of all rights of termination and suspension set out in the article.28
Article 60, therefore, does not require the injured party to confine his
response to a breach to measures which are proportionate to the injury
inflicted by the breach.
The second issue raised during discussion of article 60 had to do with
the procedures to be followed by an injured party acting under that article;
specifically, whether the article permits the injured party to act unilaterally
or requires it to follow the disputes settlement procedures of articles 65 and
66 before it may terminate or suspend the treaty. The ILC commentary to
its draft article on breach states that 'The formula "invoke as a ground" is
intended to underline that the right arising under the article is not a right
arbitrarily to pronounce the treaty terminated.'" Thus paragraph 1 of the
ILC draft provided that 'A material breach of a bilateral treaty by one of
the parties entitles the other to invoke the breach as a ground for terminat-
ing the treaty or suspending its operation in whole or in part.' Similarly, a
party specially affected by a breach of a multilateral treaty is entitled, under
paragraph 2 (b), to 'invoke it as a ground for suspending the operation of a
treaty ...' But the 'invoke as a ground' formula was conspicuously absent
from the ILC draft of paragraph 2(a) and (c), which provide that 'A
material breach of a multilateral treaty by one of the parties entitles: (a)
The other parties by unanimous agreement to suspend the operation of the
treaty or to terminate it ... (c) Any other party to suspend the operation of
the treaty ...'
When the Chairman of the Drafting Committee reported this article
back to the Committee of the Whole he noted that 'The Drafting Com-
mittee had observed that sub-paragraph 2 (a) and 2 (c), if read literally,
seemed to establish rights to terminate a treaty or to suspend its operation,
which were not subject to the procedure laid down in article 62. Since
some doubts had been expressed as to whether that had been the intention
of the Committee of the Whole when it had approved article 57, the
28. See in this connection, with respect to paragraph 2(a), the comment of Mr
Rosenne, Provisional Summary Record of the Thirtieth Plenary Meeting, at 12.
29. Supra note 1, at 83 (para. 6 of the commentary to draft article 57).

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Drafting Committee had decided to submit the article to the Committee of

the Whole without any change, but it drew attention to the legal conse-
quences involved.'30
When the article came before Plenary at the second session an amend-
ment was proposed adding the formula 'invoke as a ground' to paragraphs
2(a) and 2(c). The phrase was added to 2(c), but failed narrowly to
secure the two-thirds support necessary for its addition to paragraph 2(a).
It was argued that the requirement of paragraph 2(a) that all the parties
to a multilateral treaty (other than the party or parties in breach) act by
unanimous agreement was adequate safeguard against arbitrary action and
there was therefore no need for the additional safeguard of the disputes
settlement articles. To this the reply was made that the protection afforded
by the requirement in paragraph 2(a) for unanimous agreement would be
slight in the case of multilateral treaties with few parties; moreover, the
fact that the other parties acted by agreement did not mean they acted
justly. In any case, paragraph 2(a) as finally adopted is the only provision
for termination or suspension contained in part v of the Convention the
operation of which, according to its text, is not subject to the disputes
settlement provisions of articles 65 and 66.
The ILc draft articles did not contain final clauses for the proposed
Convention; consequently the final clauses were discussed, in both Com-
mittee of the Whole and Plenary, after the substantive draft articles had
been considered. One of the issues which arose during discussion of the
final clauses was the temporal application of the treaties Convention. There
were three courses available to the conference in dealing with this question.
One was to make the treaties Convention apply to all treaties in force after
the entry into force of the Convention. This approach was open to the
objection that it would result in those provisions of the Convention which
constitute progressive development having retroactive effect contrary to the
rule on retroactivity contained in article 28. Another course was to include
no article dealing specifically with the temporal application of the treaties
Convention, leaving the matter to be regulated by article 28, as has been
done, for example, in the case of reservations. The practical effect of the
application of article 28 to the treaties Convention is not entirely clear,
however,31 and this course would therefore have left uncertainty on this
important question. The third course was to provide specifically that the
treaties Convention would apply only to treaties which enter into force after
the Convention enters into force, without prejudice of course to the present
operation of those provisions of the Convention which are mere codification.
The third course, in addition to having the virtue of certainty, had a very
practical political advantage. It meant that the Convention as such would
30. Supra note 14, at 478, para. 23. ILC articles 57 and 62 referred to became articles
60 and 65 respectively, in the Convention. The provisions of the latter were supple-
mented by article 66.
31. See Supra note 2, at 67.

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not apply to treaties now in existence. This in turn meant that delegates
were able to deal with the substantive articles and, of even greater im-
portance, the disputes settlement procedures in article 66, in a more dis-
interested way than would otherwise have been the case. For if there was a
possibility that the treaties Convention might, upon its entry into force, have
applied to existing treaties, then delegates would unavoidably have sought
to resolve their governments' current treaty disputes through the inclusion
in the Convention of provisions favourable to their own side in such
disputes. It is not surprising, therefore, that with only five negative votes
the Conference adopted the third course. On the recommendation of the
Drafting Committee, the provision was removed from the final clauses to
the opening articles on the scope of the Convention and appears as article
4.82
Brief reference should be made to a number of other substantive pro-
visions in the Convention which constitute additions by the Conference to
the draft articles adopted by the International Law Commission. These
include:
paragraph 4 of article 24, providing that certain provisions of a treaty
(e.g. those regulating the manner of becoming bound, the manner of entry
into force, and the duties of a depositary) apply from the time the text is
authenticated rather than from the time of entry into force.
paragraph 3(c) of article 44, introducing the concept of proportionality
in the rules governing separability of treaty provisions (referred to above
in connection with article 60).
paragraph 2 of article 46, defining a manifest violation of internal law
(which a state may invoke as invalidating its consent to be bound by a
treaty) as one which 'would be objectively evident to any State conducting
itself in the matter in accordance with normal practice and in good faith.'
the definition in article 53 of a norm of jus cogens as 'a norm accepted
and recognized by the international community of States as a whole as a
norm from which no derogation is permitted.'"
paragraph 1 (b) of article 56, which establishes that when a treaty con-
tains no provision for denunciation 'a right of denunciation may be implied
by the nature of the treaty.' The proposal upon which this provision was
based was adopted in Committee of the Whole by a vote of 26 (including
Canada) for, 25 against, and 37 abstentions. But when the article came
back to Committee of the Whole from the Drafting Committee the pro-
vision was upheld on a separate vote, by 56-10-13. A request for a separate
vote on paragraph 1 (b) in Plenary was withdrawn for lack of support and
the article was adopted, 95 (including Canada) -0-6.
32. Article 4 provides that 'Without prejudice to the application of any rules set
forth in the present Convention to which treaties would be subject under international
law independently of the Convention, the Convention applies only to treaties which are
concluded by States after the entry into force of the present Convention with regard to
such States.'
33. See, re jus cogens generally, supra note 2, at 65-6.

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paragraph 2 of article 58, requiring that where certain of the parties to

a multilateral treaty wish to suspend the operation of a treaty among them-
selves they must give prior notice to the other parties to the treaty.
paragraph 2 of article 61, precluding a party to a treaty from pleading
impossibility of performance when the impossibility results from a violation
by that party of an obligation in international law to another party to the
treaty.
paragraph 3 of article 62, providing that a fundamental change of
circumstances may give use to a right of suspension.34
an addition to article 63, providing, in effect, that severance of diplomatic
or consular relations between parties to a treaty may affect the legal relations
established by the treaty only to the extent that these relations are indispens-
able to its application.
the provision in article 73 that the Convention is without prejudice to
questions arising from the outbreak of hostilities between states. The rac
text had referred only to the other two matters covered by the article, state
succession and state responsibility, although the introduction to the ILC
Report containing the draft articles and commentary had stated that the
articles did not deal with the question of hostilities.
article 74, which provides that the severance or absence of diplomatic or
consular relations between states does not prevent the conclusion of treaties
between them and, conversely, that the conclusion of a treaty does not
affect the question of diplomatic or consular relations.
It is perhaps not premature to make a tentative and preliminary assessment

of the impact which the Convention is likely to have upon the law of
treaties.
Sir Humphrey Waldock remarked at one point in the debates that Sir
Hersch Lauterpacht, one of his predecessors as ILC Special Rapporteur on
the law of treaties, had expressed the view that there was virtually nothing
that was settled in the law of treaties. The ILO stated in its report that the
draft articles included provisions which were codification of existing law as
well as provisions which constituted progressive development of the law.
While the Commission did not attempt, for obvious practical reasons, to
indicate in its report into which of these two categories each particular
article fell, it appears clear from the debates that the large majority of the
articles were regarded as statements of existing law. The codification of
these existing rules of law in the Convention may be regarded as adding a
useful degree of precision and clarity to the generally recognized principles
of treaty law which they embody. To that extent at least, the adoption of
the Convention may have removed some of the uncertainty to which Sir
Hersch referred.
It is less clear, perhaps, to what extent adoption of the Convention may

contribute to the incorporation into customary international law of those
34. Ibid., at 66-7.

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principles embodied in the convention which are, in terms of customary

law, de lege ferenda. The International Court of Justice has very recently
indicated, in its judgment in the North Sea Continental Shelf cases,38 the
limitations on the extent to which the preparatory work of the International
Law Commission, followed by the adoption at diplomatic conferences of
general multilateral conventions, may in itself lead to the crystallization of
emerging norms as customary international law. More than the adoption of
the Convention will be required. The Court accepted, as one of the recog-
nized methods by which new rules of customary international law may be
formed, the process by which a rule originally formulated as a rule of
conventional international law becomes, through state practice, a rule of
general international law. Much depends, therefore, upon the influence
which the codification of rules as expressed in the Convention has upon
subsequent state practice.
Another means, affirmed by the Court, by which the contents of the
Convention may become part of general international law is through 'a very
widespread and representative participation in the Convention,' including
'that of States whose interests were specially affected' which leads to the
related question of the prospects for the entry into force of the Convention
within the reasonably near future. The Convention requires 35 ratifications
or accessions for entry into force. Of the 99 states which participated in
the vote on the Convention as a whole, only one, France, voted against the
Convention. Of the nineteen states which abstained, eight were Soviet bloc
states. Canada was among the 79 states which voted in favour of the Con-
vention as a whole. The Soviet bloc abstention reflects its dissatisfaction
with the disputes settlement provisions. This is not an insurmountable
obstacle, however, for those states which wish to do so are free to enter
reservations, as they have done in respect of other treaties, concerning the
disputes settlement provisions. In this connection it should be noted that the
conference purposely omitted an article on reservations to the treaties Con-
vention from the final clauses of the Convention, preferring to let the matter
be governed by the liberal regime embodied in articles 19 to 23. This should
facilitate ratification or accession by states with problems over one or two
articles, although excessive resort to reservations could lead to uncertainty
bordering on chaos in the law of treaties.
The position of the major treaty-making states of the world, the 'States
whose interests were specially affected' to which the Court refers and which
must certainly include Canada, remains uncertain. The delegates of many
of these states accepted the omission of compulsory arbitration from article
66 in the realization that the text which was adopted was the best that
could be obtained at the conference. Whether the best was good enough has
yet to be determined. One of the states whose acceptance or otherwise of
the treaties Convention will be of considerable importance to its impact on
35. North Sea Continental Shelf Judgment (1969) I.C.J. Reports 3, at 37--45.

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general treaty law is, of course, the USA. During the debate the USA repre-
sentative affirmed on several occasions the importance which his govern-
ment attached to a satisfactory disputes settlement procedure. Less than two
months after the adoption of the Convention, John R. Stevenson, Legal
Adviser in the us State Department and a member of the us delegation at
the second session of the treaties conference, described the disputes settle-
ment procedures in the Convention as 'highly satisfactory.'36 If this view
is shared by the us government and by other states which attach importance
to the disputes settlement issue, then the prospects are encouraging not only
for the entry into force of the Convention but for the eventual incorporation
of the provisions of the Convention in general international law.
It is very much to be hoped that the question of participation in the
treaties Convention will be given early consideration by all the governments
which participated in its preparation. It would be a most unfortunate set-
back to the codification and development of international law if, through
mere inertia of governments, the Convention failed to attract within a
reasonable time sufficient ratifications and accessions to bring it into force.
The Convention may not hold out the prospect of immediate and direct
tangible benefit to a large number of states, but its entry into force would
constitute a giant step forward toward the common goal of the international
community, the rule of law among nations.
Appendix 1
Results of the roll call vote, in the Eighth Plenary Meeting, on paragraph
2 of ILr draft article 5, dealing with the treaty-making capacity of members
of federal states.
Voting to retain paragraph 2: Afghanistan, Algeria, Bulgaria, Byelo-
russian SSR, Central African Republic, Cuba, Czechoslovakia, Ecuador,
France, Gabon, Hungary, Indonesia, Iraq, Ivory Coast, Kuwait, Madagas-
car, Monaco, Mongolia, Morocco, Nepal, Poland, Romania, Syria, Turkey,
Ukrainian SSR, USSR, UAR, Yugoslavia; total 28.
Voting to delete paragraph 2: Argentina, Australia, Austria, Barbados,
Belgium, Bolivia, Brazil, Burma, Cameroon, Canada, Ceylon, Chile, China,
Colombia, Congo (Kin.), Costa Rica, Cyprus, Denmark, Dominican Re-
public, El Salvador, Ethiopia, Federal Republic of Germany, Ghana, Greece,
Guatemala, Guyana, Holy See, Honduras, India, Iran, Ireland, Israel,
Italy, Jamaica, Japan, Liberia, Liechenstein, Luxembourg, Malaysia, Malta,
Mauritius, Mexico, Netherlands, New Zealand, Nigeria, Norway, Pakistan,
Panama, Peru, Philippines, Portugal, Republic of Korea, Republic of Viet-
nam, San Marino, Singapore, South Africa, Spain, Sweden, Switzerland,
Trinidad and Tobago, Uganda, United Kingdom, United States of
America, Uruguay, Venezuela, Zambia; total 66.
36. U.S. Department of State Bulletin, vol. LxI, no. 1573 (18 August 1969), at 127,
containing the text of an address given on 15 July 1969.

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Abstentions: Cambodia, Congo (Brazz.), Finland, Kenya, Lebanon,

Libya, Saudi Arabia, Senegal, Sierra Leone, Sudan, Thailand, Tunisia,
United Republic of Tanzania; total 13.
Appendix 2
PLENARY, 28 APRIL 1969: SEVENTH MEETING;
STATEMENT BY MR WERSHOF (CANADA) ON ARTICLE 5
Mr President
The Canadian delegation has grave reservations concerning paragraph 2
of article 5 which, in our view, deals inadequately with the treaty-making
capacity of members of a federal state, both from a political and from a
strictly legal viewpoint. The reasons for my delegation's concern were made
known to distinguished representatives at the first session last year. Now,
however, the conference must take its final decision on whether or not a
provision of the kind proposed in the second paragraph of this article is to
be included in the convention we are to adopt. It is the view of my delega-
tion that the implications and possible consequences of the adoption of this
paragraph are sufficiently serious to warrant further consideration by this
conference at this time. It is for this reason, Mr President, that I propose to
deal in some detail with the issues raised by this paragraph since, although
these issues were discussed at the Committee stage of our deliberations, they
were not resolved at that time.
It would be helpful, I believe, to review briefly the history of paragraph
2 of this article, because such a review reveals that there has never, at any
stage of the consideration of this question, been a consensus in favour of
the desirability of including paragraph 2. The first draft articles (including
an article on capacity to conclude treaties) were considered by the Inter-
national Law Commission as early as 1950. In 1958 the then Special
Rapporteur, Sir Gerald Fitzmaurice, included, in what was then proposed
as a code rather than a convention, the proposition that 'The component
states of a federal union, not possessing any international personality apart
from that of the union, do not possess treaty-making capacity.' It is not
until 1962 that we find, in draft article 3 dealing with capacity generally
to conclude treaties, a specific provision relating to treaty-making by mem-
bers of a federal state. I should like particularly to draw the attention of
distinguished representatives to the fact that this provision, which was para-
graph 2 of article 3, was formulated by the ILc at a time when the Com-
mission had not yet decided to limit the scope of its draft articles to treaties
between states. Thus the proposed article 3 also contained a paragraph on
the treaty-making capacity of international organizations.
Paragraph 2 was at that time the subject of prolonged and deep contro-
versy within the Commission, with a number of its most distinguished
members expressing serious reservations about its provisions. At the 779th
meeting of the Commission, the Special Rapporteur, in suggesting that the

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whole of the proposed article on capacity be deleted, noted that the article
(and I quote now from the Summary Record) 'had given rise to con-
siderable difficulty in the Commission, which had been almost equally
divided on the issues it raised; in the truncated form in which it had finally
emerged, it was not very useful and the best course would probably be to
drop it altogether.'
Finally, however, after considerable redrafting and continued controversy,
what is now paragraph 2 of article 5 was adopted by a vote, in a Com-
mission consisting of 25 members, of only 7 in favour, with three opposed
and four abstentions. In other words, only 7 out of 25 members actually
recorded approval of the paragraph.
Distinguished representatives will recall that when article 5 was con-
sidered by the Committee of the Whole at the first session of this conference,
paragraph 2 of the article was the subject of two votes. In both cases the
paragraph was retained by only a narrow majority. The result of the first
vote was 45 in favour and 38 opposed, with 10 abstentions. On the second
vote 46 voted in favour, 39 against, with 8 abstentions.
The conclusion to be drawn from the foregoing is that the desirability of
including in this convention a provision incorporating the principle con-
tained in the second paragraph of draft article 5 has been the subject of
serious controversy among eminent jurists and, on those occasions on which
it has been voted upon, paragraph 2 has failed to attract the support of
even a simple majority of the members and representatives who considered
it.
I turn now, Mr President, to the considerations which lead my delegation

to believe that the proposed formulation of the rule found in paragraph 2
is unsatisfactory from a legal viewpoint and, moreover, is beyond the scope
of the convention which we are now drafting.
First, I should like to reiterate that the paragraph was originally proposed
when the ILC draft articles were intended to cover treaty-making not only
by states but also by other subjects of international law, including inter-
national organizations. Subsequently however, the Commission decided to
confine the draft articles to treaties between states and, in consequence, the
third paragraph dealing with treaty-making by international organizations
was deleted from the article on capacity. The paragraph on treaty-making
by members of a federal union was retained, however. It will be recalled
that the word 'state' was used in two quite different senses in the two
paragraphs of article 5, as adopted by the ILC. When this article was con-
sidered last year by the Committee of the Whole and by the Drafting
Committee of this conference, it was recognized that the word 'States' in
article 1, on the scope of the convention, and in paragraph 1 of article 5,
meant independent sovereign states. Recognizing that members of a federal
state are not themselves independent sovereign states in that sense, the
Committee deleted the word 'States' from paragraph 2 of article 5. Thus a

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provision dealing with the capacity of these entities to conclude treaties is

as much beyond the scope of the present convention, as defined in article 1,
as would be a provision on the treaty-making capacity of an international
organization or of any other entity which is not a sovereign state.
Quite apart from the question whether paragraph 2 falls outside the
scope of this convention, the question arises whether paragraph 2 formulates
a desirable legal principle which ought to be adopted in the interest of
orderly treaty relations. I wish to make clear that my delegation is not
questioning the relevance of the provisions of the federal constitution to the
practice whereby certain federal states permit, within the limits of their
constitutions and subject to various forms of federal control, component
parts of the federation to conclude agreements with sovereign states. We
are concerned however, that this formulation, as expressed in paragraph 2,
is dangerously incomplete. There are clearly at least two prerequisites, both
of which must exist together, if a component unit of a federal state is to
have effective treaty-making capacity. One is the conferring on it of such
capacity by the federal state, the other is the recognition by other sovereign
states of the capacity so conferred. With respect to the first element, the
paragraph assumes, quite incorrectly, that the constitution speaks for itself
and is alone determinative. It ignores the state practice of federal states
both on the municipal and international plane, in particular, for example,
the process whereby the constitution is continuously amended in certain
states by means of judicial decision.
A further problem is that the proposed formulation also says nothing
about who is to be responsible for any breach by a member of a federal
state of its treaty obligations. One may answer that the present convention
expressly excluded from its ambit all questions of state responsibility. There
nevertheless exists, independent of the present convention, a body of inter-
national law governing the responsibility of sovereign states for the breach
of their treaty obligations. No similar rules exist, however, in respect of
treaties concluded by members of a federal state. A review of the discussion
of this issue in the ILC quickly reveals the absence of any consensus among
jurists on this issue.
There is a further consideration, Mr President, of considerable practical
significance, which serves to underline the inadequacy of paragraph 2 as a
formulation of the rule of international law relating to the treaty-making
capacity of members of a federal state. The paragraph proposes that such
a capacity may exist if it is admitted by the federal constitution and within
the limits there laid down. As distinguished representatives will readily
realize, the constitution forms part of the municipal law of the federal state
and its interpretation falls exclusively within the internal jurisdiction of that
state. This is particularly obvious when one considers that the constitution
of a state is an organic statute interpreted and developed by the appropriate
internal organs of the state. Paragraph 2 contains no provision, however,

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recognizing that only the federal state itself may interpret its own constitu-
tion. Thus the paragraph may lead to the totally unacceptable practice of
one member state of the UN presuming to interpret the constitution of
another member state which happens to be a federal state. In federations
where the constitution is entirely written and deals expressly with treaty-
making, there may be relatively little danger of this practice arising. The
paragraph seems to ignore, however, situations like that of Canada where
the constitution is in large part unwritten. Constitutional practice, in such
cases, is as important as the written documents. But our experience confirms
that, in a country like Canada, which gained its independence through the
gradual evolution of constitutional practice, not all of which was reduced
to written form, the possibility of one state purporting to interpret the
constitution of another federal state is all too real. The failure of paragraph
2 to deal with this problem is probably its most important defect.
In discussing the question whether a provision such as paragraph 2
should be included in the present convention, the observation is occasionally
made that the practice of treaty-making by members of certain federal
states exists and should therefore be mentioned. An examination of state
practice confirms that certain federal states do permit, within the limits of
their constitutions and subject to various forms of federal control, the con-
clusion of certain types of international agreements by their member units.
These practices have been going on for years, they have long since been
accepted under international law and their continuance is not dependent
upon the adoption of paragraph 2 of article 5. I should like to make clear,
Mr President, that the Canadian delegation does not question either the
legality or the desirability of these practices. Indeed Canada, whose constitu-
tion does not provide for such action by its provinces, has nonetheless
authorized, by means of umbrella agreements between Canada and other
sovereign states, the conclusion of various agreements between its provinces
and such states. We do not believe, however, that state practice supports
the particular and defective formulation of the relevant rule of law as
proposed in paragraph 2, leaving it open to other states to interpret the
constitutions of federal states.
My delegation considers that the only satisfactory remedy for the dan-
gerous inadequacies of paragraph 2 is the deletion of the paragraph. We
consider that the conference should take into account the fact that, at the
first session, paragraph 2 was opposed by the large majority of federal states
represented here. I would hope, Mr President, that non-federal states will
not seek to impose upon federal states a rule which particularly concerns
federal states and to which the large majority of such states are opposed.
There is no suggestion that the omission of paragraph 2 of article 5 would
in any way impair the existing rights of the members of any federal state,
whereas many federal states have indicated that its inclusion is unnecessary
and undesirable.

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articles and commentary. The subsequent diplomatic conference, in which

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The Moscow formula is contained in the Partial Test Ban Treaty,4 th

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of states authorized, under the Vienna formula, to participate in the treaties

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After referring to the general obligation of states under article 33 of the

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a simple majority (41, including Canada, in favour, 36 opposed, 27

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As mentioned earlier, the basic proposal before the conference consisted of

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and controversial articles on interpretation, this part includes articles on

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While the conference made numerous amendments, both in substance

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a principle which most federal states considered would be endangered by

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draft text constituted a clear rejection by the international community of

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to become a party to the treaty.' The necessity for a special provision

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may be invoked to terminate or suspend even humanitarian provisions of

24. Supra note 14, at 359, para. 76.

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debated, an amendment to introduce the concept of proportionality to that

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Drafting Committee had decided to submit the article to the Committee of

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paragraph 2 of article 58, requiring that where certain of the parties to

It is perhaps not premature to make a tentative and preliminary assessment

It is less clear, perhaps, to what extent adoption of the Convention may

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principles embodied in the convention which are, in terms of customary

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Abstentions: Cambodia, Congo (Brazz.), Finland, Kenya, Lebanon,

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I turn now, Mr President, to the considerations which lead my delegation

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provision dealing with the capacity of these entities to conclude treaties is

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