Document:-

A/CN.4/120

Fourth report on the Law of Treaties by Mr. G. G. Fitzmaurice, Special Rapporteur

Topic:
Law of Treaties

Extract from the Yearbook of the International Law Commission:-

1959 , vol. II

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 LAW OF TREATIES
[Agenda item 3]
DOCUMENT A/CN.4/120

Fourth report by Sir Gerald Fitzmaurice, Special Rapporteur

[Original text: English/French]

[17 March 1959]

CONTENTS
Page
INTRODUCTION 39

I. Text of articles

SECOND CHAPTER. THE EFFECTS OF TREATIES

Part I. The effects of treaties as between the parties (operation, execution and enforcement)
Article 1. Scope of part I 41
Division A. Operation and execution of treaties
Section 1. Character, extent and limits of the treaty obligation
Article 2. Fundamental principles governing the treaty obligation 42
Sub-section i. Nature and extent of the treaty obligation
Article 3. Obligatory character of treaties : ex consensu advenit vinculum . . . . 42
Article 4. Obligatory character of treaties : pacta sunt servanda 42
Article 5. Obligatory character of treaties : relationship of obligations to rights . . 42
Article 6. Obligatory character of treaties: the principle of the unity and continuity
of the State 43
Article 7. Obligatory character of treaties : the principle of the supremacy of inter-
national law over domestic law 43
Article 8. Obligatory character of treaties: the case of conflicting treaty obligations 43
Sub-section ii. Limits of the treaty obligation (circumstances justifying non-performance)
Rubric (a) General principles and classification
Article 9. General definition of non-performance justified by operation of law . . 43
Article 10. Scope of the present subsection 44
Article 11. Classification 44
Article 12. Certain general considerations applicable in all cases where a right of
non-performance by operation of law is invoked 44
Rubric (b) Non-performance justified ab extra by operation of a general rule of inter-
national law
Article 13. Acceptance of non-performance by the other party or parties . . . . 44
Article 14. Impossibility of performance 44
Article 15. Legitimate military self-defence 45
Article 16. Civil disturbances 45
Article 17. Certain other emergency conditions 45
Article 17A. Previous non-performance by another party 45
Article 18. Non-performance by way of legitimate reprisals 45
Rubric (c) Non-performance justified ab intra by virtue of a condition of the treaty
implied in it by international law
Article 19. Scope of the present rubric 46
Article 20. Conditions implied in the case of all treaties : condition of reciprocity or
continued performance by the other party or parties 46
Article 21. Conditions implied in the case of all treaties: condition of continued
compatibility with international law 46
Article 22. Conditions implied in the case of all treaties: condition of unchanged
status of the parties 46

37
38 Yearbook of the International Law Commission, Vol. II

Page
Article 23. Conditions implied in the case of particular classes of treaties . . . . 47
Section 2. Particular questions of treaty application
Sub-section i. Temporal and territorial application of treaties
Rubric (a) Temporal application
Article 24. Beginning and duration of the treaty obligation 47
Rubric (b) Territorial application
Article 25. General principles 47
Article 26. Application to metropolitan territory 48
Article 27. Application to dependent territories 48
Article 28. Determination of the status of metropolitan and dependent territories . . 48
Sub-section ii. Effect of the treaty on the internal plane
Rubric (a) Effect of treaties on and respecting the institutions of the State
Article 29. Relevance of the domestic aspects of treaty application 48
Article 30. Duties of States in relation to their laws and constitutions 49
Article 31. Position and duties of particular organs of the State 49
Rubric (b) Effects of treaties on and in respect of private individuals and juristic
entities within the State
Article 32. Treaties involving obligations for private individuals or juristic entities 49
Article 33. Treaties involving benefits for private individuals or juristic entitites . . 49
Sub-section iii. Miscellaneous particular questions of treaty application 49
Division B. Consequences of and redress for breach of treaty
Section 1. Consequences of breach of treaty
Article 34. Basic principles 49
Article 35. Method of discharging the responsibility arising from breach of treaty 50
Article 36. Consequences of breaches of treaties involving benefits for individuals 50
Section 2. Modalities of redress for breaches of treaty
Sub-section i. General statement of available remedies
Article 37. Action by way of redress open to the parties 50
Sub-section ii. Special procedural considerations affecting certain means of redress
Article 38. Case (c) of Article 37 51
Article 39. Cases (e) and (/) of Article 37 51

II. Commentary on the articles

SECOND CHAPTER. THE EFFECTS OF TREATIES

Part I. The effects of treaties as between the parties (operation, execution and enforcement)
Article 1. Scope of part I 51
Division A. Operation and execution of treaties
Section 1. Character, extent and limits of the treaty obligation
Article 2. Fundamental principles governing the treaty obligation 52
Sub-section i. Nature and extent of the treaty obligation
Article 3. Obligatory character of treaties : ex consensu advenit vinculum . . . . 53
Article 4. Obligatory character of treaties : pacta sunt servanda 53
Article 5. Obligatory character of treaties : relationship of obligations to rights . . 54
Article 6. Obligatory character of treaties: the principle of the unity and continuity
of the State 54
Article 7. Obligatory character of treaties: the principle of the supremacy of inter-
national law over domestic law 58
Article 8. Obligatory character of treaties: the case of conflicting treaty obligations 61
Sub-section ii. Limits of the treaty obligation (circumstances justifying non-performance)
Rubric (a) General principles and classification
Article 9. General definition of non-performance justified by operation of law . . 62
Article 10. Scope of the present sub-section 62
Article 11. Classification 63
Article 12. Certain general considerations applicable in all cases where a right of
non-performance by operation of law is invoked 63
Rubric (b) Non-performance justified ab extra by operation of a general rule of inter-
national law
Article 13. Acceptance of non-performance by the other party or parties . . . . 63
Article 14. Impossibility of performance 64
Article 15. Legitimate military self-defence 64
Article 16. Civil disturbances 65
Article 17. Certain other emergency conditions 66
Article 17A. Previous non-performance by another party 66
Article 18. Non-performance by way of legitimate reprisals 66
 Law of treaties 39

Page
Rubric (c) Non-performance justified ab intra by virtue of a condition of the treaty
implied in it by international law
Article 19. Scope of the present rubric 70
Article 20. Conditions implied in the case of all treaties : condition of reciprocity or
continued performance by the other party or parties 70
Article 21. Conditions implied in the case of all treaties: condition of continued
compatibility with international law 71
Article 22. Conditions implied in the case of all treaties : condition of unchanged
status of the parties 72
Article 23. Conditions implied in the case of particular classes of treaties . . . . 73
Section 2. Particular questions of treaty application
Sub-section i. Temporal and territorial application of treaties
Rubric (a) Temporal application
Article 24. Beginning and duration of the treaty obligation 74
Rubric (b) Territoral application
Article 25. General principles 74
Article 26. Application to metropolitan territory 74
Article 27. Application to dependent territories 75
Article 28. Determination of the status of metropolitan and dependent territories . 76
Sub-section ii. Effect of the treaty on the internal plane
Rubric (a) Effect of treaties on and respecting the institutions of the State
Article 29. Relevance of the domestic aspects of treaty application 76
Article 30. Duties of States in relation to their laws and constitutions 76
Article 31. Position and duties of particular organs of the State 78
Rubric (b) Effects of treaties on and in respect of private individuals and juristic
entities within the State
Article 32. Treaties involving obligations for private individuals or juristic entities 78
Article 33. Treaties involving benefits for private individuals or juristic entities . . 79
Sub-section iii. Miscellaneous particular questions of treaty application 79
Division B. Consequences of and redress for breach of treaty
Section 1. Consequences of breach of treaty
Article 34. Basic principles 80
Article 35. Method of discharging the responsibility arising from breach of treaty . 80
Article 36. Consequences of breaches of treaties involving benefits for individuals 81
Section 2. Modalities of redress for breaches of treaty
Sub-section i. General statement of available remedies
Article 37. Action by way of redress open to the parties 81
Sub-section ii. Special procedural considerations affecting certain means of redress
Article 38. Case (c) of Article 37 81
Article 39. Cases (d), (e) and (/) of Article 37 81

Introduction 2. This is obviously a matter that depends primarily

. . T 1 . , . < ii- T» on the terms of the treaty itself, and which, in that
1. In his three previous reports,' the Rapporteur sen .g U a r t o e a c h i n d i v i d u a l t r e a t y - o r , up to a
covered the subjects of the conclusion and termination . ^ of t r e a t i e s I n t h a t s e n no al r u l e s
of treaties (formal and temporal validity), and also c a n b e f o r m u l a t e d o n t h e subject o t h e r t h a n t h e rules of
that of essential validity ; and although he may wish to t interpretation—and these do not consist so much
suggest modifications in some of the articles proposed of ^ a§ tQ w h a t t h e e f f e c t s of t r e a t i e s i n f a c t ^ but
and the views expressed in those reports, they complete r a t h e r of m l e s for (so t0 k) d e d d i h o w to decide
a chapter on the general topic of validity for a Code what is the effect of a articular treaty or treaty
on the Law of Treaties. It remains to deal with the rest provision5 o r c l a s s of e i t h e r I n short5 r u l e s of ( o r for)
of the subject. Having considered what brings a treaty interpretation represent adjectival rather than substan-
into existence what makes it valid, and what brings it tiye law M o r e o v e ] % s u c h r u l e s a r e n e cessary for deter-
to an end it then becomes necessary to consider what mini not omy t h e effect of a iyen treat but also
effects it has during the period of its existence. questions relating to its conclusion and entry into force,
~~~~=:
1
A ,™T „ , , „ . . . , , , , , , , • , its essential validityJ and its termination. In other words,
Document A/CN.4/101 in Yearbook of the International th
. . . . . ,.f , , ,
Law Commission, 1956, vol. II (United Nations publication, e rules of treaty interpretation qualify the whole
Sales No.: 1956.V.3, vol. II), p. 104 ; document A/CN.4/107 subject, and not merely that part of it that relates to the
in Yearbook of the International Law Commission, 1957, vol. II topic of the effects of treaties. Therefore, despite the
(United Nations.publication. SalesiNo. = J957.V.5, vol. II), p 16 ; fact that "interpretation" and "effects" are often
document A/CN.4/115 in Yearbook of the International Law , , , - . , , «-TM, • *
Commission, 1958, vol. II (United Nations publication, Sales coupled together—witness such phrases as The inter-
No. : 58.V.1, vol. II), p. 20. pretation and application of treaties"—the Rapporteur
40 Yearbook of the International Law Commission, Vol. II

considers that they are separate, and must be separately and more comprehensive than most writers. The Har-
dealt with. The subject of interpretation would accord- vard Volume on Treaties3 deals fairly exhaustively
ingly form a separate and later chapter of the Code, with the positive aspects of the character of the treaty
the provisions of which would, so far as requisite, be obligation, but hardly goes beyond that. Arnold D.
relevant to and capable of use in connexion with all McNair's Law of Treaties,4 based on the opinions of
other parts of the Code. the English Law Officers of the Crown, deals illumi-
natingly with a large number of miscellaneous points.
3. But if the subject of interpretation must be treated Some of the private codes (Field, Fiore, Bluntschli,
separately from that of effects, and if also the effects of Bustamante, and others)5 contain a number of provi-
any given treaty depend primarily on the individual sions on the subject. Many writers, however, hardly
terms of that treaty, and to that extent cannot therefore touch on it, or do so only as part of the subject of treaty
be determined on an a priori basis, what then is left for interpretation. The Rapporteur has therefore had to
a chapter on the " Effects of Treaties "? Clearly what rely somewhat heavily on his own experience or incli-
will be left, and what will be comprised in such a nations for filling up gaps or dealing with obscurities.
chapter, will be all those rules which combine the two
following characteristics, namely: 6. Another difficulty is that, while the Rapporteur
(a) Of depending not on the interpretation of the has tried to make the draft as comprehensive as possible,
particular treaty, but on objective rules of general inter- it is probable that further study of the matter might
national law outside the treaty—rules that apply to bring to light a considerable number of points which, if
treaties but do not derive from them ; by no means pertinent to the subject of the effects of
(b) Of being applicable generally and indifferently, " all" treaties, might be relevant to a sufficiently large
either to all treaties irrespective of their particular con- number (or to sufficiently prominent classes) of
tent ; or, in some cases, only to certain well-defined treaties, to warrant inclusion. But to take this further
classes of treaties—but again, irrespective of the par- would require not only a systematic study of a great
ticular content of the treaty within its class. Under these many individual treaties, but also, in all probability,
heads would come, first of all, an important set of information from Governments as to their practice in
general rules governing the juridical nature of the relation to these treaties or classes of treaties. The Rap-
treaty obligation—its extent (i.e., in what circumstances porteur has not yet been able to make such a study;
and despite what conflicts or impediments it must and further, although reference is made to the matter
always be performed or responsibility be incurred for in the body of the report,6 he doubts whether, for the
non-performance); and its limits (i.e., in what circum- immediate purposes of the present report, it is necessary
stances non-performance will be justified and will not to do so. It will be better to establish the more general
give rise to responsibility). Next there are rules gov- principles first. If later it is thought desirable and
erning more particular questions of application (but practical to do so, it will always be possible to add
questions still common to all or most treaties) such as one or more sections dealing with matters of detail
territorial application, application to and in respect of arising with reference to the application of certain
the individual organs or institutions of the State on the kinds or classes of treaties.
domestic plane, and application to and in respect of 7. Then there are the usual difficulties of classifi-
private individuals or entities within the State. Finally, cation, arrangement and overlapping. These are, so to
there is the topic of the consequences of breach of a speak, both "internal" and "external". "Internally",
treaty obligation, and of redress for such breach (some- parts of the present draft could be differently classified
times, though not very appropriately, known as "en- or arranged, and tend to overlap with others. For
forcement"). It can be maintained that this last topic is instance, the whole subject of the consequences of breach
not really part of the subject of treaty "effects". of treaty is closely linked to that of what justification
Nevertheless, as will be seen, it is so closely linked to it there may be in certain cases for the non-observance of
as not in practice to be separable. a treaty. Again, the more detailed aspects of the topic
4. The topics just mentioned arise principally in the of the effect of a treaty on the domestic plane, in
application of the treaty for, or as between, the actual relation to its organs and governmental institutions, is
parties to it. They are treated of in the present report as really part of, and derives from, such general principles
part I of a chapter on " The Effects of Treaties ". There concerning the juridical character of the treaty obli-
is, however, also the subject of the effects of treaties for gation, as that of the supremacy of international over
and in relation to "third States", not parties to the domestic law with reference to the discharge by a State
treaty concerned. This will constitute part II of the of its international obligations. Yet again, there must be
chapter and will be covered by a later report. some doubt under precisely which head to classify the
reciprocity principle in the application of treaties. All
5. The subject-matter of the present report has
presented the Rapporteur with various difficulties. One
3
of these (probably precisely because the effects of a Harvard Law School, Research in International Law, III.
treaty depend primarily on its particular terms, rather Law of Treaties, Supplement to the American Journal of Inter-
national Law, vol. 29, 1935, Washington, D.C., The American
than on general rules of law) is that most authori- Society of International Law, ed., pp. 707-710.
ties devote extremely little space to it, and few make 4
Oxford, Clarendon Press, 1938.
any attempt to deal with it systematically—still fewer 5
to treat of it comprehensively. Rousseau2 is systematic The texts of some of these figure in the annexes to the
Harvard Volume.
2 6
Charles Rousseau, Principes generaux du droit international See article 23, and paragraphs 113 and 162 of the com-
public (Paris, Editions A. Pedone, 1944), vol. I, pp. 355-451. mentary.
 Law of treaties 41

these matters are further discussed in the body of the in the more colloquial and less formal language that
report.7 In general, the Rapporteur has, in matters of (within certain limits, of course) is permissible, and up
classification and arrangement, followed in the present to a point desirable, in a code; secondly, in putting as
report the system of Rousseau but is not satisfied that he much into the articles themselves as is reasonably pos-
(i.e., the Rapporteur) has made the best use of it. It sible without overloading them, so that they are rela-
may be possible to suggest improvements later, before tively self-explanatory and could stand without a com-
the time when the Commission comes to deal with this mentary, though the latter is in fact provided; and
part of the subject. thirdly, in not shirking or minimizing, but rather at-
tempting to bring out, the difficulties of the subject,
8. "Externally", there is inevitably some overlap- which are often glossed over, or completely ignored.
ping with previous reports. The whole subject of treaties
is one that is rather specially susceptible to the possi- 11. With reference to the last of these points, the
bility that theoretically distinct portions of it have Rapporteur feels that it is only in the light of a full
strong practical affinities or relationships with others. appreciation of the difficulties involved that the Com-
Several of the general principles considered in the mission will eventually be able to devise a satisfactory
present report have already proved relevant in con- and probably simplified and much improved text. He
nexion with the subject-matter of previous reports. has, therefore, in the present report as in previous ones,
Again some of the grounds justifying non-performance regarded it as part of his duty as Rapporteur to try and
of a particular treaty obligation are identical with some draw attention to all the relevant factors and aspects of
of those causing or justifying the termination of a the subject.
treaty. Yet, for reasons fully explained in the body of
the report,8 the two subjects are quite distinct, if only
because in the case of termination (considered in the I. TEXT OF ARTICLES
Rapporteur's second report) the treaty ends altogether,
while in the other (considered in the present report) Second Chapter. The effects of treaties
it does not in general do so, and (if a paradox is per-
missible) the non-performance is not only justified, [1. The present report starts a second chapter of a
but "looks towards" a resumption of performance so draft Code on treaties, covering the effects of treaties.
soon as the factors causing and justifying the non-per- The Rapporteur's previous three reports (dated 1956-
formance are no longer present, or have ceased to exist. 1958 inclusive) completed a first chapter on validity
It may eventually be possible to " marry" certain ele- (formal, temporal and essential; or the conclusion, ter-
ments at present treated of in different reports, but for mination and essential validity of treaties).
the moment this must await further consideration.
2. Subject to possible modification later, the present
9. Finally, there are difficulties inherent in the whole (second) chapter, which is to be followed in due course
subject, of a kind that has been mentioned in the intro- by a third chapter on the interpretation of treaties, will
ductions to previous reports—for instance, that of consist of two main parts:
finding formulae or principles that really are applicable
to all treaties, and the necessity for some purposes of Part I. The effects of treaties as between the parties
distinguishing certain categories from others. Similarly, (operation, execution and enforcement), which is the
general phrases such as "breach of treaty" are con- subject of the present report.
stantly employed; but not all breaches or infractions
are of the same order. Infractions may take such diverse Part II. The effects of treaties as regards third States,
forms as (a) failure by a party to perform some posi- to form the subject of a subsequent (1960 report.]
tive obligation which it is itself under a duty to per-
form ; (b)—a subdivision or other aspect of (a)—failure Part I. The effects of treaties as between the parties
or refusal to grant the other party treatment to which (operation, execution and enforcement)9
that party is entitled under the treaty; (c) failure or
refusal to allow the other party to perform some act, or
to exercise some right or licence, which, under the
treaty, it is entitled to perform or exercise ; (d) the Article 1. Scope of part I
taking of any action by one party which is subject to a
treaty prohibition. At least for the purpose of dealing 1. The effect of a treaty as between the parties
with the consequences of breach of treaty, it is necessary
thereto depends primarily on the substantive content
to distinguish between these different cases; a closer
and terms of the treaty, as correctly interpreted and
study might well show that this should also be done
determined according to the principles of interpretation
for certain other purposes.
9
10. In conclusion, the Rapporteur would like to The present part I has two main divisions :
say that he has followed the precedents of his previous A. Operation and execution of treaties.
B. Consequences of and redress for breach of treaty (enforce-
reports in three respects: first, in drafting the articles ment).
not in the precise and rather tight language appropriate These divisions are subdivided as follows :
to such an instrument as an international convention, Division A :
intended to be signed and ratified by States, but rather Section 1. Character, extent and limits of the treaty obli-
gation.
7 Sub-section i. Nature and extent of the treaty obligation.
See paragraphs 172, 142 and 101 of the commentary. Sub-section ii. Limits of the treaty obligation (circum-
s
See paras. 55-57 and 67 of the commentary. stances justifying non-performance).
42 Yearbook of the International Law Commission, Vol. II

set out in chapter 3 of the present Code (which will SUB-SECTION I. NATURE AND EXTENT OF THE TREATY
form the subject of a later report). In consequence, the OBLIGATION
present chapter purports to contain only those general
principles and rules relating to the effects of treaties Article 3. Obligatory character of treaties:
which are applicable to all treaty instruments indif- ex consensu advenit vinculum
ferently, and irrespective of the particular character of
their content. 1. The immediate foundation of the treaty obligation
is the consent given to it by the parties, it being an
2. Except as regards the fundamental principles of antecedent principle of international law that consent
treaty law set out in article 2 below, and further finally and validly given creates a legally binding obli-
developed in certain subsequent articles, the application gation.
of any provision of this part of the present chapter
may be negatived or modified by an express term of 2. The foundation of treaty rights is equally the
the treaty excluding it. consent given to the enjoyment of those rights, and the
undertaking to accord them.

Article 4. Obligatory character of treaties:

DIVISION A. OPERATION AND EXECUTION pacta sunt servanda
OF TREATIES 1. A treaty being an instrument containing binding
undertakings and creative of vested rights, the parties
SECTION 1 : CHARACTER, EXTENT AND LIMITS are under a legal obligation to carry it out.
OF THE TREATY OBLIGATION 2. A treaty must be carried out in good faith, and so
as to give it a reasonable and equitable effect according
Article 2. Fundamental principles to the correct interpretation of its terms.
governing the treaty obligation 3. In relation to any particular treaty, the application
of the foregoing provisions is conditional on the treaty
1. In general, and subject to the specific provisions possessing the necessary validity under chapter 1 of the
of this part of the present chapter, the effects of treaties present Code—that is to say, on its having been regu-
(apart from such as are derived from the actual content larly concluded and come into force in accordance with
of the treaty) depend on the application of, and on the provisions of part I of that chapter; on its possess-
appropriate inferences to be drawn from, the following ing essential validity under part I I ; and on its being
principles of general international law, namely: still in force and not validly terminated in accordance
(a) The principle of consent (ex consensu advenit with part III. In the case of multilateral treaties, these
vinculum); conditions must obtain not only in respect of the treaty
itself, but also in respect of the participation of the
(b) The principle pacta sunt servanda;
particular party whose rights or obligations are in
(c) The principle of the unity and continuity of the question.
State ;
(d) The principle of the supremacy of international 4. It follows from the foregoing provisions of the
law over domestic law; present article that the existence of circumstances
(e) The principle pacta tertiis nee nocent nee falling within one of the two following classes of cases
pro sunt. cannot of itself justify non-performance of the treaty
obligation:
(a) That there is a dispute or disagreement between
the parties, or a state of strained relations, or that diplo-
virtue of a condition of the treaty implied in it by matic relations have been broken off;
international law.
Section 2. Particular questions of treaty application.
(b) That the treaty obligation has become difficult or
onerous of execution for the party concerned, or is felt
Sub-section i. Temporal and territorial application of
treaties. by that party to have become inequitable or prejudicial
Rubric (a). Temporal application. to its interests.
Rubric (b). Territorial application.
Sub-section ii. Effect of the treaty on the internal plane.
Rubric (a). Effect of treaties on and respecting the Article 5. Obligatory character of treaties :
institutions of the State. relationship of obligations to rights
Rubric (A). Effects of treaties on and in respect of
private individuals and juristic entities within the 1. In general, though with particular reference to the
State. case of multilateral treaties:
Division B : (a) A party to a treaty has a duty towards the other
Section 1. Consequences of breach of treaty. party or parties to carry it out, irrespective of whether
Section 2. Modalities of redress for breaches of treaty.
Sub-section i. General statement of available remedies. any direct benefits to such other party or parties will
Sub-section ii. Special procedural considerations affecting accrue therefrom; and correspondingly, any party to a
certain means of redress. treaty has, as the counterpart of its own obligation, the
Rubric (a). General principles and classification. right to require due performance by any other party of
Rubric (/;). Non-performance justified ab extra by its obligations under the treaty, irrespective of any
operation of a general rule of international law.
Rubric (c). Non-performance justified ab intra by such factor;
 Law of treaties 43

(b) Each party is under an obligation to refrain 3. The foregoing provisions of the present article
from applying a treaty in such a way, from taking such apply where any provision of the local law or consti-
action in relation to it, or from otherwise so conducting tution has the effect of defeating or preventing the
itself, as may be calculated to impair the authority of performance of the treaty obligation, or of justifying its
the treaty as a whole, to diminish the force of the non-performance on the internal plane—irrespective of
treaty obligation, or to prejudice the enjoyment of the the particular subject-matter of that provision, and of
rights or benefits the treaty provides for, whether on whether it does or does not purport to relate specifically
the part of the other party or parties as such, or of to the treaty or the class of matter covered by the treaty,
individual persons or entities. or is said to have an object or purpose different from
that of the treaty.
Article 6. Obligatory character of treaties: the prin-
ciple of the unity and continuity of the State Article 8. Obligatory character of treaties:
the case of conflicting treaty obligations
1. The rights and obligations provided for in the
treaty attach to the parties to it as States, irrespective of 1. Except as provided in paragraph 3 below, a con-
the particular form or method of its conclusion. The flict between two treaties, both of them validly con-
Government or administration of the State for the time cluded, can in principle only be resolved on the basis
being, irrespective of the character of its origin, or of that both have equal force and effect, in the sense that
whether it came into power before or after the con- the parties incur international responsibility under each
clusion of the treaty, acts as the agent of a State to of them. In such a case, the question which of the two
carry the treaty out, or to claim rights and benefits treaties is actually to be carried out, and which, by
under it, as the case may be, and is bound or entitled reason of the fact that it cannot be or is not carried out,
accordingly. gives rise to a liability to pay damages or make other
suitable reparation for a breach thereof, is governed by
2. In consequence, the treaty obligation, once the provisions of articles 18 and 19 of part II of chapter
assumed by or on behalf of the State, is not affected, in 1 of the present Code.
respect of its international validity or operative force,
by any of the following circumstances: 2. Accordingly, the mere fact that a treaty obligation
is incompatible with obligations under another treaty
(a) That there has been a change of government or is not in itself a ground justifying non-performance.
regime in any State party to the treaty;
(b) That some particular organ of the State 3. The foregoing provisions of the present article do
(whether executive, administrative, legislative or judi- not apply:
cial) is responsible for any breach of the treaty; (a) Where an obligation under one treaty is super-
(c) That a diminution in the assets of the State, or seded, cancelled, or replaced by an obligation under a
territorial changes affecting the extent of the area of later treaty between identical parties ;
the State by loss or transfer of territory (but not (b) As between States parties to both treaties, and
affecting its existence or identity as a State), have having intended, as between themselves, to supersede,
occurred, unless the treaty itself specifically relates to cancel, or replace the earlier obligation;
the particular assets or territory concerned.
(c) Where, according to the provisions of article 18
In all such cases, the treaty obligation remains inter- of part II of chapter 1 of the present Code, one of the
nationally valid, and the State will incur responsibility
treaties or treaty obligations concerned is rendered null
for any failure to carry it out.
and void by reason of conflict with the other;
(d) By reason of Article 103 of the Charter of the
Article 7. Obligatory character of treaties: the prin- United Nations:
ciple of the supremacy of international law over (i) As between Member States of the United Nations,
domestic law in respect of any treaty obligation in conflict with
1. In case of conflict, obligations arising under a the obligations of the Charter;
treaty take precedence of, and prevail internationally (ii) As between a Member and a non-member State,
over the provisions of the internal law or constitution as respects the performance of any such conflicting
of any party to it. obligation, but not as respects international
responsibility and liability for the resulting non-
2. Accordingly, the treaty obligation, once assumed, performance.
is not affected in respect of its international validity
and operative force by the existence of inconsistencies
SUB-SECTION II. LIMITS OF THE TREATY OBLIGATION
between it and the provisions of the internal law or
(CIRCUMSTANCES JUSTIFYING NON-PERFORMANCE)
constitution of the party concerned, whether these have
been enacted previously or subsequently to the coming RUBRIC (a). GENERAL PRINCIPLES AND CLASSIFICATION
into force of the treaty ; not by deficiencies or lacunae, Article 9. General definition of non-performance
or special features or peculiarities of the law or con- justified by operation of law
stitution or governmental organization of that party
which may affect the performance of the obligation on 1. In certain special cases, international law operates
the internal plane. In all such cases, the obligation to confer a right of non-performance where this would
remains internationally valid, and the State will incur not otherwise have existed according to the actual terms,
responsibility for any failure to carry it out. express or implied, of the treaty itself.
44 Yearbook of the International Law Commission, Vol. II

2. In such cases, international law necessarily other party or parties to claim execution of the treaty in
operates independently of the terms of the treaty, or of full, provided that the treaty is being duly executed by
any special agreement between the parties as to non- such party or parties.
performance, in the sense that it provides grounds of 3. Where the event, occurrence or circumstances
non-performance that may operate even though they are giving rise to the ground of non-performance by
not specifically contemplated by the treaty or by the operation of law has been directly caused or contributed
agreement of the parties. to by the act or omission of the party invoking it
(unless this act or omission was itself both necessary
Article 10. Scope of the present sub-section and legally justified), such party will either be pre-
1. The present sub-section relates to the circum- cluded from invoking the ground in question, or (if the
stances justifing ad hoc non-performance, either in event, occurrence or circumstances nevertheless in their
whole, or as to a particular provision of the treaty—the nature entail non-performance) will incur responsibi-
latter being itself, and remaining, in full force. The lity for any resulting damage or prejudice, and will be
separate, though related, question of the circumstances liable to make reparation therefor.
causing or justifying termination or indefinite suspen- 4. Mutatis mutandis, the case of non-performance of
sion of a treaty, in whole or in part, is dealt with in a treaty obligation by operation of law is subject to the
part III of chapter 1 of the present Code. same considerations and to the same rules as are set out
2. It follows that, except in cases where the nature of in paragraph 5 of article 16 in part III of chapter 1 of
the circumstances otherwise indicates (as may for in- the present Code for the case of the termination or
stance happen under articles 21, 23 and 24), the present suspension of a treaty by operation of law.
sub-section contemplates cases in which performance
can and must be resumed so soon as the circumstances RUBRIC (b). NON-PERFORMANCE JUSTIFIED ab extra BY OPERATION
justifying non-performance have ceased to exist. OF A GENERAL RULE OF INTERNATIONAL LAW

Article 13. Acceptance of non-performance

Article 11. Classification by the other party or parties
1. Non-performance may take place only under the
treaty itself or by operation of law. It will therefore be 1. Non-performance, or partial non-performance, of
justified if and only if: a treaty obligation will not, or will cease to constitute a
breach of the treaty, if, either by express agreement, or
(a) It occurs in circumstances specifically contem- else tacitly (e.g., by acquiescence or non-objection), the
plated and specified by the treaty, or necessarily to be non-performance is accepted by the other party to the
implied from its terms ; treaty, or, in the case of multilateral treaties, is accepted
(b) The circumstances are such as to give rise to one by all the other parties (unless, in the latter case, the
of the situations provided for in articles 13 to 23 below. obligation is owed to one or more parties only, when
2. It follows that, except where non-performance is acceptance by such party or parties will suffice).
contemplated by an express or implied term of the 2. The acceptance, even though it may be tacit, must
treaty, it can only be justified by operation of law, that be clear and unmistakable, and must in effect indicate
is to say: or warrant an inference of actual agreement to non-
(a) Either ab extra, by the operation of a general performance. The mere fact that a party does not seek
rule of international law permitting non-performance in redress in respect of the non-performance, or avail itself
certain circumstances; of remedies afforded by the treaty or otherwise, or take
(b) Or ab intra, by the operation of a condition counter-action, does not per se amount to acceptance of,
which, whether it is actually expressed in a treaty or or acquiescence in, the non-performance.
not, is deemed by international law to be implied, either
in all treaties, or in the particular class to which the Article 14. Impossibility of performance
treaty concerned belongs.
1. Temporary or ad hoc impossibility of perfor-
Article 12. Certain general considerations applicable in mance 10 justifies non-performance of a treaty obliga-
tion provided that the impossibility is literal and actual,
all cases where a right of non-performance by
in the sense of imposing an insuperable obstacle or im-
operation of law is invoked
pediment to performance in the nature of force majeure,
1. Where the provisions of the treaty specifically and not merely of rendering performance difficult,
exclude any grounds of non-performance, such provi- onerous or vexatious.
sions will prevail, notwithstanding the fact that non-
performance on these grounds would otherwise be 2. Performance of the treaty must be resumed imme-
justified by operation of law. The same applies where a diately the obstacle to it is removed or performance
treaty obligation is specifically entered into with otherwise becomes possible again.
reference (and is intended to apply) to a state of 10
affairs that might otherwise give rise to a right of non- See article 10. A temporary or ad hoc impossibility is
necessarily the only kind that can be relevant in the present
performance. context, since if it were permanent it would be a ground for the
2. In those cases where the operation of international total termination, or at least the indefinite suspension of the
law gives a faculty of non-performance, such faculty treaty, or treaty obligation, and not merely for a particular non-
performance. Impossibility leading to termination or indefinite
must be exercised within a reasonable time after it is suspension is dealt with in article 17 of part III of chapter 1
alleged to have arisen. Failure to do this will entitle the of the present Code.
 Law of treaties 45

3. Changed conditions falling short of rendering per- causes, such as storm devastation, floods, earthquakes,
formance impossible do not in themselves justify non- volcanic eruptions, wide-spread epidemics or plant
performance. The principle rebus sic stantibus which diseases on a national or quasi-national scale.
may, in the circumstances and subject to the conditions
stated in articles 21 to 23 of part 111 of chapter 1 of the 2. In order to justify non-performance in these cases,
present Code, justify the suspension and eventual ter- the circumstances must be such that performance would
mination of a treaty, has no application to the case of aggravate the emergency, or would be incompatible
a particular non-performance of a treaty obligation. with the steps necessary to deal with it, or would render
these ineffective or unduly difficult to take.
Article 15. Legitimate military self-defence 3. Except in those cases where the emergency
renders further performance totally impossible and
1. The requirements of legitimate military self- results on that account in the termination of the whole
defence 11 justify the non-performance of a treaty obli- obligation, performance must be resumed as soon as the
gation on such particular occasions as give rise to these emergency is over or conditions make resumption of
requirements, provided : performance possible.
(a) That, subject to the provisions of paragraph 3
below, actual naval, military or air operations are taking 4. In the absence of emergency conditions of a
place or are in immediate contemplation; character clearly affecting the performance of the treaty
obligation in the manner specified by paragraphs 1 and
(b) That the case is one of legitimate self-defence 2, the fact that there are circumstances rendering per-
according to the recognized principles of international formance difficult or onerous is not a ground justifying
law and to any relevant conventional obligations ; non-performance.
(c) That the non-performance is essential in the
circumstances, in the sense that performance would be Article 17A. Previous non-performance
incompatible with the necessities of self-defence or by another party
would seriously prejudice the defence operations in-
volved ; [See article 20 below. Although an article on this
subject could figure there, it has seemed to the Rap-
(d) That the scope and area of non-performance are porteur preferable, for the reasons given in paragraph
circumscribed as much as possible and confined to what 102 of the commentary, to place it in rubric (c).]
is strictly necessary for the immediate purposes of self-
defence.
Article 18. Non-performance by way
2. Except in those cases where war or other hostili- of legitimate reprisals
ties justify the termination or permanent suspension of
a treaty or treaty obligation, performance of it, or of 1. In those cases where a reciprocal, equivalent and
any part of it which has not been performed, must be corresponding non-observance of a treaty obligation,
following on a previous non-observance by another
resumed as soon as the requirements of legitimate self-
party to the treaty, as provided in article 20 below,
defence are met, or no longer necessitate non-perfor-
would not afford an adequate remedy, or would be im-
mance, or if the circumstances giving rise to these
practicable, the non-observance of a different obligation
requirements have ceased to exist. under the same treaty or, according to circumstances, of
3. A threat of war or other hostilities, or of the a different treaty may, subject to the provisions of para-
occurrence of events calling for the exercise of legiti- graphs 3 and 4 below, be justified on a basis of legi-
mate self-defence, will not justify non-performance of timate reprisals.
a treaty obligation except where the performance would
itself directly contribute to such occurrence or to the 2. The principle of reprisals may also be invoked,
materialization of the threat. subject to the provisions of paragraphs 3 and 4 below,
in order to justify the non-observance of a treaty obli-
gation because of the breach by another party to the
Article 16. Civil disturbances treaty of a general rule of international law.
The provisions of article 15 apply, mutatis mutandis, 3. Whatever the circumstances, action by way of
to the case of riots and other civil disturbances, or of reprisals may only be resorted t o :
civil war.
(a) If, as stated in paragraph 1 of this article, the
Article 17. Certain other matter cannot be dealt with by means of the application
emergency conditions of the reciprocity rule as provided by article 20 below;
(b) If the breach of treaty or illegality against which
1. Under the same conditions, mutatis mutandis, as the reprisals are directed has been established or is
those specified in paragraph 1 (c) and (d) of article 15 manifest;
above, non-performance of a treaty, or of some par-
ticular part of it, is justified if rendered absolutely (c) If prior negotiations or exchanges between the
necessary by a major emergency arising from natural parties have not led to any solution or settlement, or if
requests for negotiations, or for a resumption of per-
11
The case contemplated here is not the same as that of the formance or cessation of the treaty infraction, have been
termination or indefinite suspension of treaties or parts of rejected or not responded to ;
treaties by reason of war or of hostilities amounting to war (see
para. 70 of the commentary below). (d) If, in those cases where the counter-action does
46 Yearbook of the International Law Commission, Vol. II

not consist simply of a corresponding non-observance Article 20. Conditions implied in the case of all
of the same obligation, it can be shown to be necessary treaties of reciprocity or continued performance by the
in the circumstances, in order to provide adequate re- other party or parties
dress or avoid further prejudice ;
1. By virtue of the principle of reciprocity, and
(e) Provided that the treaty concerned is not a except in the case of the class of treaties mentioned in
multilateral treaty of the "integral" type, as defined paragraph 3 (e) of article 18, non-performance of a
in article 19, head (b) of part II, and article 19, para- treaty obligation by one party to the treaty will, so
graph 1 (iv) of part III, of chapter 1 of the present long as such non-performance continues, justify an
Code, where the force of the obligation is self-existent, equivalent and corresponding non-performance by the
absolute and inherent for each party, irrespective and other party or parties.
independently of performance by the others; 1 2
2. In the case of multilateral treaties, however, such
(/) Provided the appropriate procedures set out in non-performance will only be justified in relation to the
article 39 below have first been resorted to. particular party failing to observe the treaty.
4. The particular reprisals resorted to must be appro- 3. Where a treaty provides for certain action to be
priately related to the occasion giving rise to them, taken by the parties jointly or in common, it does not
and must also be proportionate and commensurate in follow that the failure or refusal of one party to take or
their effects to the prejudice caused by the previous co-operate in taking this action will entitle the other or
non-observance of a treaty or international law obliga- others to take it alone. This is a matter depending on
tion by the other State concerned, as well as limited to the interpretation of the particular treaty. However, a
what is necessary in order to counter such non-obser- renunciation of or failure by a party to exercise a joint
vance. They must be conducted in accordance with the right does not affect the right of the other party or
general rules of international law governing self-redress parties.
by way of reprisals.
5. Non-observance based on legitimate reprisals must Article 21. Conditions implied in the case of all
cease so soon as occasion for it has ceased by reason of treaties: condition of continued compatibility with
a resumption of performance by the other party or international law
parties concerned.
1. A treaty obligation which, at the time of its con-
RUBRIC (c). NON-PERFORMANCE JUSTIFIED (lb intra BY VIRTUE OF A clusion, is incompatible with an existing rule or prohi-
CONDITION OF THE TREATY IMPLIED IN IT BY INTERNATIONAL LAW bition of general international law in the nature of jus
cogens, lacks essential validity ab initio, with the conse-
Article 19. Scope of the present rubric quences set out in articles 21 and 22 of part II of
chapter 1 of the present Code. Accordingly, the case
1. Where a right not to perform a treaty obligation contemplated by the present article is that of super-
in certain particular circumstances can be derived, or is vening incompatibility with such a rule or prohibition
said to be derivable, by implication from one of the of international law.
terms of the treaty, the existence and scope of the right
depend on the correct interpretation of the treaty itself, 2. A treaty obligation the observance of which is in-
and this is a matter governed by the general rules compatible with a new rule or prohibition of interna-
relating to the interpretation of treaties contained in tional law in the nature of jus cogens will justify (and
chapter 3 of the present Code (which will form the require) non-observance of any treaty obligation in-
subject of a later report). The present rubric relates volving such incompatibility, subject to the same condi-
only to the case of conditions implied in or attached to tions, mutatis mutandis, as are set out under case (vi)
the treaty by operation of law. in article 17 of part III of chapter 1 of the present Code
in respect of the termination or indefinite suspension of
2. Alternatively, it is implicit in the type of case the treaty.
treated of in the present rubric that, on the face of it, the
treaty concerned creates a specific obligation, so that 3. The same principle is applicable where circum-
the question is whether international law implies a con- stances arise subsequent to the conclusion of a treaty,
dition justifying the non-performance of that obliga- bringing into play an existing rule of international law
tion in certain circumstances. Since the very issue, which was not relevant to the situation as it existed at
whether non-performance is justified, is one that the time of the conclusion of the treaty.
assumes the existence of a prima facie or apparent obli- 4. Where the circumstances do not involve incom-
gation under the treaty, conditions expressed in or im- patibility with a rule or prohibition in the nature of jus
plied by the language of the treaty itself relate to the cogens, but merely a departure from, or variation by,
existence and scope of the obligation, not to the justifi- the parties (for application inter se) of a rule in the
cation for its non-performance. nature of jus dispositivum, no ground for non-obser-
3. A condition implied by law as described in the vance will exist.
preceding paragraphs may be implied in the case of all
treaties or only of certain particular classes of treaties. Article 22. Conditions implied in the case of all
treaties: condition of unchanged status of the parties
12
An example of the type of treaty here contemplated would
be those of the social or humanitarian kind, the principal object 1. In those cases where one or both of the parties to
of which is the benefit of individuals. a bilateral treaty lack treaty-making capacity, the treaty
 Law of treaties 47

will lack essential validity ab initio. In the case of individuals, either on grounds personal to themselves, or
multilateral treaties, the same principle applies to the in pursuance of a general immigration policy, or policy
validity of the participation in the treaty of any entity respecting the taking of employment, applied to all
in this position. These cases are dealt with in article 8 foreigners without discrimination; and similarly to
of part II of chapter 1 of the present Code. The present expel or deport individuals.
article is accordingly confined to the case of super- (c) Commercial treaty clauses relating to the admis-
vening changes in the status of parties originally sion or import or export of goods and cargoes are
possessed of treaty-making capacity. normally to be read as subject to an implied condition
enabling the local authorities to prohibit entirely, or to
2. The case of an alteration in international status institute special regulations for, the importation or
involving a change or total loss of identity of the party exportation of certain categories of articles on grounds
concerned, leading (subject to the rules of state suc- of public policy, health or quarantine, such as arms,
cession) to the termination of the treaty as a whole, is gold bullion, narcotic drugs, works of art, pest-carrying
governed by the provisions of case (i) in article 17 of plants, etc.; or to do so on particular occasions if ren-
part III of chapter 1 of the present Code. dered necessary by local circumstances (e.g., to prohibit
3. Subject to the rules of state succession, a super- the importation of cattle coming from infected areas).
vening change of international status not involving a (d) The operation of treaties of guarantee is subject
complete loss or change of identity will justify non- to an implied condition of appropriate conduct on the
performance of a treaty obligation in those cases where, part of the State in whose favour the guarantee
as a result of the change, performance is no longer operates. Accordingly, the obligation to act in accor-
dependent on the sole will of the party concerned. In dance with the guarantee will not be effective if the
such circumstances, however, there may arise an obliga- State in whose favour it was instituted has itself been
tion for another international entity to perform or responsible for the occurrence bringing the guarantee
ensure performance of the treaty obligation. into play, or has refused or failed to take action, legally
open to it, and possible, which would have rendered the
Article 23. Conditions implied in the case of particular implementation of the guarantee unnecessary, or ma-
classes of treaties terially less onerous.

1. Certain classes of treaties or treaty obligations are SECTION 2. PARTICULAR QUESTIONS OF TREATY
to be regarded as being automatically subject to certain APPLICATION
implied terms or conditions justifying their non-per-
SUB-SECTION I. TEMPORAL AND TERRITORIAL APPLICATION
formance in appropriate circumstances, irrespective of
OF TREATIES
their actual language, unless this language is such as
expressly, or by necessary implication, to exclude any RUBRIC (fl). TEMPORAL APPLICATION
such term or condition.
Article 24. Beginning and
2. The classes and the terms or conditions involved duration of the treaty obligation
depend on the state of international law for the time
being, and on the development of treaty practice and 1. Subject to the provisions of articles 41 and 42 of
procedure, and cannot therefore be exhaustively enume- part I of chapter 1 of the present Code, and unless the
rated. The following are given by way of example: 13 treaty itself otherwise provides, the binding effect of a
(a) Treaties dealing with undertakings relating to treaty arises immediately on, and the obligation to carry
topics of private international law are to be read as it out dates from, its coming into force. The same applies
subject to the implied condition or exception of "ordre to the faculty to claim rights under a treaty.
public "—i.e., that the parties are not obliged to imple- 2. In the case of multilateral treaties, the relevant
ment the treaty in any case where to do so would be date is the coming into force of the treaty in respect of
contrary to the juridical conceptions of " ordre public " the party whose rights and obligations are in question,
as applied by their courts. No such term or condition as provided by paragraph 4 of article 41 in part I of
is, in the absence of an express clause to that effect, to chapter 1 of the present Code.
be read into treaties or treaty clauses not coming within
this category. 3. Subject to the provisions of articles 27 to 31, in-
clusive, of part III of chapter 1 of the present Code, the
(b) The establishment clauses of commercial treaties rights and obligations provided for by a treaty continue
are normally to be read as subject to an implied con- until valid termination in accordance with the provi-
dition to the effect that they do not prejudice the right sions of that part.
of the local authorities to refuse admission to particular
4. Unless a treaty specifically so provides, or a
13
Numerous categories of treaties are involved ; e.g., air traffic necessary implication to that effect is to be drawn from
conventions, maritime conventions, labour conventions, extra- its terms, it cannot give rise to retroactive rights or
dition treaties, etc. An exhaustive consideration of the matter obligations, and there exists a presumption against
(which the Rapporteur does not think it necessary to undertake retroactivity.
at the present juncture) would require a detailed study of a large
number of treaties and conventions belonging to each of the RUBRIC (b). TERRITORIAL APPLICATION
different classes, and also an inquiry of Governments con-
cerning their practice in relation to the application of these Article 25. General principles
treaties. Such a study would probably have to be based on
information provided or collected by the Secretariat. 1. The provisions of the present sub-section have no
48 Yearbook of the International Law Commission, Vol. II

relevance to the case of those classes of treaties or treaty (c) Territories which, though not fully self-govern-
clauses that do not normally involve any question of ing, either generally, or in relation to the subject-
territorial application, such as treaties of alliance, matter or field of the particular treaty, possess their own
guarantee, collective self-defence, peace and friendship, quasi-autonomous or responsible local legislative or
recognition, institution of diplomatic relations, etc. administrative organs ; and where, according to the con-
stitutional relationship between these territories and the
2. In those cases where the question of territorial metropolitan government, such organs must be con-
application is relevant, the matter is governed primarily sulted in regard to the application of any treaty; or
by the terms of the treaty itself, or of any ancillary where action on the part of such organs will be
instruments accompanying it; or, where the treaty so necessary to implement the treaty locally, if it becomes
permits, of any declarations made by a party at the time applicable to the territory.
of signature, ratification or accession.
4. In the cases covered by the preceding paragraph,
3. In all other cases, and unless the application of a the fact that the metropolitan government may possess,
treaty is, by its terms, specifically confined (or by its and may in the last resort be able to exercise, ulterior
nature can only relate) to a certain particular part of powers which would enable it to effect the compulsory
the territory, or of certain particular territories, of one application of the treaty to the territory concerned, is
or more of the contracting parties, its territorial appli- not a ground on which the automatic application of the
cation will be governed by the provisions of the treaty can be predicated.
remaining articles of the present rubric.
Article 28. Determination of the status of metropolitan
Article 26. Application to metropolitan territory and dependent territories
1. Unless a treaty otherwise provides, it applies auto- 1. The determination of the status of any territory,
matically to the whole of the metropolitan territory whether as a metropolitan or a dependent territory, is a
(or to all territories forming part of the metropolitan question of law and fact depending on the correct inter-
territory) of each contracting party. pretation of the relevant constitutional provisions and
international instruments.
2. Subject to the provisions of paragraph 3 below,
the term " metropolitan territory " is to be understood 2. Subject to any relevant treaty provisions, and to
as denoting all those territories of a contracting party any international right of recourse that may exist,
which are administered directly by its central govern- (a) Such determination is, in the first instance, one
ment under the basic constitution of the State, in such a for the metropolitan government to make;
manner that this government is not subject, either in
the domestic or in the international field, to any other (b) The metropolitan government may also indicate
or ulterior authority. what is covered, or not covered, as the case may be,
by any particular territorial appellation or geographical
3. The constituent states, provinces or parts of a description.
federal union or federation, notwithstanding such local
autonomy as they may possess under the constitution 3. Any such determination or indication, where it
of the union or federation, are considered to be part of purports to depart from the apparent geographical or
its metropolitan territory for treaty and other inter- political position as it exists at the time, must, in order
national purposes. to be applicable for the purposes of any particular
treaty, be made and declared at the time of the con-
clusion of the treaty, unless it has already been notified
Article 27. Application to dependent territories or published in advance.
1. The term "dependent territories" denotes any 4. Paragraph 3 of the present article does not, how-
territories of a State that are not metropolitan territories ever, as such, relate to any determination or indication
as defined in paragraph 2 of the preceding article. resulting from a genuine change in the status or con-
2. Subject to the provisions of paragraph 3 below, a stitutional position of the territory concerned, or in the
treaty extends automatically to all the dependent relations between it and the metropolitan government.
territories of the contracting parties unless it otherwise In such cases, the applicability of the treaty in respect
provides, or unless it contains a clause permitting the of the territory will depend on its terms and on the
separate extension or application of the treaty to such rules of (or on rules analogous to those of) state
territories. succession.
3. However, unless a treaty specifically provides to
the contrary, it will have no automatic extension to SUB-SECTION II. EFFECT OF THE TREATY
dependent territories coming within any of the follow- ON THE INTERNAL PLANE
ing classes: RUBRIC (fl). EFFECT OF TREATIES ON AND RESPECTING
THE INSTITUTIONS OF THE STATE
(a) Territories which, though dependent in respect
of the conduct of their foreign relations, are internally
fully self-governing; Article 29. Relevance of the domestic aspects of treaty
application
(b) Territories which, though not fully self-governing
internally, are so in respect of the subject-matter or The treaty obligation produces its effects primarily
field to which the treaty relates ; in the international field, it being the duty of the parties
 Law of treaties 49

to carry it out in that field. The question of its effects of the obligation on the part of its legislative, judicial
in the domestic field is relevant only in so far as it and administrative or other organs, and also internation-
may affect the capacity of the parties to discharge this ally responsible for any failure on their part to do so.
duty.
3. The fact that a particular organ of the State is, on
the domestic plane, justified in not performing (and
Article 30. Duties of States in relation to their laws even possibly obliged not to perform) the treaty, in no
and constitutions way affects the international responsibility of the State.
1. It is the duty of every State to order its law and
constitution in such a way that it can, so far as that law RUBRIC (fe). EFFECTS OF TREATIES ON AND IN RESPECT OF PRIVATE
and constitution are concerned, carry out any treaty it INDIVIDUALS AND JURISTIC ENTITIES WITHIN THE STATE
has entered into, and can give to any treaty obligation Article 32. Treaties involving obligations for private
assumed by it such effect in its domestic field as the individuals or juristic entities
treaty or obligation may require.
In those cases where a treaty provides for duties to
2. From the international standpoint, the achieve- be carried out in their individual capacity by nationals
ment of this object may result indifferently from the (including juristic entities) of the contracting States,
fact that the local law and constitution place no or imposes prohibitions or restrictions on specified
obstacles in the way of the due performance of the kinds of individual conduct, the contracting States are
treaty obligation; or because, under the local law and under an obligation to take such steps as may be neces-
constitution, treaties duly entered into are automatically sary in order to ensure that their nationals and national
applicable and self-executing domestically, without the entities are free under the relevant domestic laws to
intervention of any legislative or other specific internal carry out these duties or to observe these prohibitions
action; or because the necessary legislative or other or restrictions; and also that, in so far as may be
necessary steps have in fact been taken; or because the necessary, they are obliged under those laws to do so.
treaty is of such a character that it can be carried out
without reference to the position under the domestic Article 33. Treaties involving benefits for private
law or constitution concerned. individuals or juristic entities
3. In those cases, however, where the treaty cannot 1. Subject to the provisions of paragraph 2 below,
be carried out without specific legislative, administra- where a treaty provides for rights, interests or benefits
tive or other action in the domestic field, a party to the to be enjoyed by private individuals (including juristic
treaty which finds itself in this position is under a duty entities), or where the treaty otherwise redounds to
to take such action. their advantage, it is the duty of the contracting States
4. A State having assumed a treaty obligation is to place no obstacle in the way of the enjoyment of
equally under a duty not to take any legislative, admi- these rights, interests, benefits or advantages by the
nistrative or other action, whether at the time of the individuals or juristic entities concerned, and to take all
entry into force of the treaty, or at any subsequent such steps as may be necessary to make them effective
time while it remains in force, that would cause the on the internal plane.
obligation to cease to be capable of being carried out in 2. The provisions of the preceding paragraph do not
the domestic field. affect the discretionary power of a State or Government
to waive, compound or forgo rights, interests, benefits
5. Provisions in treaties stating expressly that the or advantages enjoyed by its nationals under a treaty
parties undertake to take the necessary legislative and to which it is a party. Private individuals and juristic
other measures necessary for the execution of the treaty entities may also, in so far as they are concerned, waive,
are merely declaratory in their legal effect. The compound or forgo rights, interests, benefits or
absence of such a provision from a particular treaty in advantages, reserved or accruing to them under or by
no way absolves the parties to it from their obligations reason of a treaty. Such action cannot, however, deprive
in this respect, which are inherent in the character of their State or Government, as a party to the treaty, of
a treaty and in the general rules of international law the right to claim or insist on full performance of it.
applicable to treaties.

Article 31. Position and duties of particular organs SUB-SECTION III. MISCELLANEOUS PARTICULAR
of the State QUESTIONS OF TREATY APPLICATION

1. Internationally, and irrespective of whether its do- [Left blank for the time being for reasons stated in
mestic constitution is a unitary or a federal one, a State the commentary.]
constitutes a single indivisible entity, and it is on this
entity that the duty to carry out treaty obligations rests.
The agency or organ of the State responsible on the DIVISION B. CONSEQUENCES OF AND REDRESS
internal plane for carrying out the treaty, or for any FOR BREACH OF TREATY
failure to carry it out, as the case may be, is a matter of
SECTION 1. CONSEQUENCES OF BREACH OF TREATY
purely domestic, not international, concern.
Article 34. Basic principles
2. It follows that the State, as an international entity,
is, in respect of any treaty obligation undertaken by it, 1. Failure to comply with the provisions of a treaty
both internationally bound to secure due performance will constitute a breach of it, or alternatively involve an
50 Yearbook of the International Law Commission, Vol. II

illegality—i.e., breach of international law—unless this 4. Subject to any specific provisions of the treaty
takes place in circumstances justifying non-performance itself, all such questions as those of the appropriate
as indicated in division A above. measure of damages, indirect damages, remoteness of
damage, payments by way of interest, etc., are governed
2. Where there is a breach of a treaty, it gives rise to by the ordinary principles of international law
international responsibility, irrespective of its character applicable to the reparation of international injuries.
or gravity. This responsibility must be discharged as
soon as possible by such means as may be necesary or
appropriate for the purpose, in accordance with the Article 36. Consequences of breaches of treaties
provisions of the present section. involving benefits for individuals
3. A State which has committed a breach of treaty is Where there has been a breach of a treaty obligation
itself responsible for taking the necessary steps for involving benefits for individuals, the measure of
bringing about a cessation of the breach and for making damages or of other reparation due, apart from any
any reparation due in respect of it, in accordance with obligation of specific performance, will prima facie be
the provisions of the present section. the prejudice caused to the individual concerned. Where,
however, the breach involves a specific prejudice to the
4. A breach of treaty by one party, or a failure by it
contracting State itself, over and above, or indepen-
to take the necessary steps to discharge the responsi-
dently of, that caused to the individual, additional re-
bility arising from the breach, confers on the other
paration will be due in respect of it.
party or parties a right of redress, and of taking re-
medial action, as indicated in section 2 below.
SECTION 2. MODALITIES OF REDRESS FOR BREACHES
Article 35. Method of discharging the responsibility OF TREATY
arising from breach of treaty
SUB-SECTION I. GENERAL STATEMENT OF AVAILABLE
1. The method of discharging the responsibility REMEDIES
arising from a breach of treaty, or of making the repa-
ration due in respect of such a breach, depends in the
first place on the provisions of the treaty, or, if these Article 37. Action by way of redress
are silent on the matter, then, subject to the provisions open to the parties
of the present section, on the general rules of inter-
national law relating to state responsibility. In the event of a breach of treaty by one party or, as
the case may be, of a failure by that party to take the
2. Breaches of treaty may assume various forms, and necessary action by way of reparation as provided in
may in particular arise from: section 1 above, the other party or parties will, subject
(a) Some action prohibited by the treaty; to the provisions of the present section, be entitled:
(b) A failure to carry out a specific requirement of (a) To take any step, or seek or apply any remedy
the treaty (which may consist in the failure to perform or means of recourse, specifically provided for in the
some act, to grant certain treatment, or to allow the treaty itself;
exercise of certain rights or performance of certain
acts); (b) Resort to any other available means of recourse if
none are provided in the treaty ;
(c) Action taken in a manner, or for a purpose, that
is not in conformity with the treaty. (c) Subject to the provisions of article 38 below, to
regard the treaty obligation as finally and definitively
3. In the classes of cases indicated in the preceding terminated in those cases where the breach is of a fun-
paragraph, the measures appropriate to discharge the damental character as defined in articles 18 to 20 of
international responsibility of the State having com- part III of chapter 1 of the present Code, and provided
mitted the breach are as follows: also that the treaty is not a multilateral treaty of the
kind described in paragraph (3) (e) of article 1 8 ;
(i) In case (a): Immediate cessation of the action
in violation of the treaty prohibition where this (d) Subject to the provisions of article 20 and of
is still continuing, and the furnishing of suitable article 39, to have recourse to an equivalent and corre-
reparation, by way of damages or otherwise, in sponding non-performance of the treaty ;
respect of the violation;
(e) Subject to the provisions of article 39, to seques-
(ii) In case (b): Immediate execution of the re- trate, detain or place an embargo on any public property
quirements in question and the furnishing of or assets of the party having committed the breach, and
suitable reparation for its previous non-execution ; situated within the jurisdiction of the other party or
or, if execution is no longer possible, or would parties, not being in the nature of diplomatic or consular
not be adequate in the circumstances, damages or property or assets;
other reparation for non-performance ;
(/) Subject to the provisions of article 18 and of
(iii) In case (c): Correction or cessation of the action article 39, to have recourse by way of reprisals to non-
in question, as may be appropriate, together with performance of some other provision of the treaty, or of
the furnishing of suitable reparation for any pre- another treaty with the party having committed the
judice caused. breach, or, in respect of that party, of some general rule
 Law of treaties 51

of international law which would otherwise require to Second chapter. The effects of treaties
be observed.
Part I. The effects of treaties as between the parties
(operation, execution and enforcement)
SUB-SECTION ii. SPECIAL PROCEDURAL CONSIDERATIONS
AFFECTING CERTAIN MEANS OF REDRESS Article 1. Scope of part I
Article 38. Case (c) of Article 37 1. Part I of the present chapter deals with the effects
In order to justify action under sub-paragraph (c) of of treaties as between the actual parties to the treaty
article 37, the conditions and procedures specified in concerned. The effects in relation to third States, and
articles 18 to 20 of part III of chapter 1 of the present the position of the latter with reference to a treaty to
Code must be strictly complied with. which they are not parties, will be considered in part II,
which will be the subject of a later report.
Article 39. Cases (e) and (f) of Article 37 2. The terms "operation, execution and enforce-
ment " in the title to part I are more or less traditional.
1. In order to justify action under sub-paragraphs Possibly, a better terminology would be " operative
(e) and (/) of article 37, either: force, performance and redress for breach". "Enforce-
(i) The breach, unless admitted, must have been estab- ment", in particular, is of doubtful suitability, since in
lished by the finding of an appropriate inter- the present state of international organization, treaties
national arbitral or judicial tribunal; or cannot normally be directly enforced.
(ii) The counter-action must be accompanied by an 3. Paragraph 1 reflects the fact that, when all is said
offer to have recourse to arbitration or adjudication and done, the effect of a treaty depends first and fore-
if the breach is denied, or by acceptance of a most on the text of the treaty itself. This fact has already
request for it, if made by the other party. been alluded to in the introduction to the present
report, where it is pointed out that a chapter on the
2. Where an offer of, or request for, arbitration or effects of treaties can only be of a very generalized
adjudication has been accepted under paragraph 1 (ii) character, setting out those effects which can be
above, any counter-measures instituted under sub-para- regarded as more or less common to all treaties, what-
graph (e) of article 37 can only take the form of an ever their particular character or content.
embargo or saisie conservatoire pending the final
decision of the tribunal on the substantive merits of the 4. More detailed provisions on the effects of treaties
case. In the case of counter-measures instituted under could only be formulated with respect to particular cate-
sub-paragraph (/) of article 37, however, the tribunal gories of treaties having a common element, and would
may, if it thinks fit, order the suspension of any such require a very close preliminary study of a large
counter-measures. number of such treaties, together with, in all probability,
an inquiry from Governments as to their practice in
3. The counter-measures instituted must: relation to these treaties. It is not possible now, in con-
(a) Be necessary in the circumstances, in order to nexion with the present chapter, to engage in such a
study or inquiry, but if it were eventually thought
provide adequate redress or avoid further prejudice;
desirable that a Code on the law of treaties should deal
(b) Be proportionate to the breach justifying them; in a fairly detailed way with questions affecting
(c) Cease so soon as the occasion for them is past, particular classes of treaties (e.g., commercial treaties,
by reason of resumed performance of the treaty obli- maritime treaties, civil aviation conventions, trading
gation, or cessation of its infraction, provided, however, agreements, and so on), a separate section dealing with
that reparation has been made in respect of the non- these matters could be compiled later.
performance or infraction. 5. Paragraph 2. Although certain rules and principles
of treaty execution and performance apply generally
in respect of all treaties, it is normally open to the
II. COMMENTARY ON THE ARTICLES parties to any particular treaty to exclude or modify the
application to that treaty of some particular rule of
Note: The texts of the articles are not repeated treaty law that would otherwise govern it. It would
in the commentary. Their page numbers are given seem, however, that the more fundamental principles of
in the table of contents at the beginning of the treaty law could not be treated in this way. Such prin-
report.14 ciples as pacta sunt servanda, the continuity of the
General observation. For the purposes of the commen- State, the supremacy of international law over domestic
tary, familiarity with the basic principles of treaty law law, etc. are juridical facts. They are unalterable,
is assumed, and only those points calling for special because without them no binding treaty could exist.
remark are commented on. In addition, in order not to 6. In this last respect, the Rapporteur finds it diffi-
overload an already full report, authorities have not cult to accept the view put forward in such a provision
been cited for principles that are familiar, or where as article 23 of the Harvard Draft Convention on
these can be found in any standard textbook, but only Treaties.15 In that article, the statement of the rule that
on controversial points, or where otherwise specially failure to perform a treaty obligation cannot be justified
called for. 15
Harvard Law School, Research in International Law, III.
Law of Treaties, Supplement to the American Journal of Inter-
14
For the arrangement of the present chapter, see footnote 9. national Law, vol. 29, 1935. In the corresponding provision in
 52 Yearbook of the International Law Commission, Vol. II

on the ground of municipal law deficiencies or con- 10. Article 2 sets out in very general form certain
stitutional difficulties, is prefaced by the phrase fundamental principles of treaty law which have
"Unless otherwise provided in the treaty itself". It is already twice been referred to in previous reports
correctly pointed out in the Harvard Draft that although presented by the Rapporteur. The first of these occa-
" such provisions in treaties . . . have been rare . . . they sions was in the first (1956) report (A/CN.4/101,
have not been entirely lacking"; and examples are pp. 108 and 118). This report, which dealt primarily
cited of treaties containing a clause providing that with the subject of the conclusion of treaties, contained
" should either party be prevented by future action of its a section entitled "Certain Fundamental Principles of
legislature from carrying out the terms of this arrange- Treaty Law ", articles 4 to 6 of which covered some of
ment, the obligations thereof shall thereupon lapse". the principles mentioned in article 2 of the present
section. In his commentary to those articles, the Rap-
7. In the opinion of the Rapporteur, any such porteur expressly mentioned that these principles really
" arrangement" is not properly speaking a treaty, and appertain more to the subject of the operation and effect
does not involve legal, but at most moral obligations, of treaties, but he posed the question whether, notwith-
or a sort of political or administrative understanding— standing that fact, it might nevertheless be desirable to
perhaps a sort of "gentleman's agreement" between have some mention of these important principles at the
governments. The clauses quoted are based on the beginning of the Code. At its eighth session in 1956,
cardinal error of equating the party to the treaty the Commission devoted two or three meetings to a
(which is properly speaking the State, and the whole very general discussion of the Rapporteur's first report,
State) with what is only one organ or part of the State, in the course of which this and certain other matters
namely, the government or administration. Treaties (con- were mentioned. While no final conclusions were reached,
sidered as legal instruments) are binding on all the the Rapporteur had the impression that the Commission
organs of the State, and a failure to carry out the treaty did not think it necessary to deal with these principles
attributable to any of these organs (including the at the beginning of the Code, and would prefer that
legislature) is a breach of it, and entails international they should appear in their logically correct position as
responsibility. The existence in the instrument con- part of the subject of treaty operation and effects.
cerned of a provision on the lines above quoted simply Therefore, there will be no difficulty in eventually
means that the party to the treaty, the State, can at any omitting the articles on this subject which were in-
time (through its legislature) legitimately fail to cluded in the Rapporteur's first report.
perform it, or cause the " obligation " to cease. This is
no more, therefore, than a voluntary undertaking without 11. In the meantime, however, these same principles
ultimate legal continuity or force, and such a position have also shown themselves to be directly relevant to
has no place in the law of treaties proper. the subject of the termination of treaties which was
dealt with in the Rapporteur's second (1957) report
8. The general question of treaties and the domestic (A/CN.4/107, pp. 23 and 39-43). While it was
laws of the parties is discussed in connexion with perhaps not essential to do so, the Rapporteur thought
article 7 below; and exactly the same type of con- it desirable to include in that section of the work an
sideration applies mutatis mutandis to the suggestion article (article 5 in part III of chapter 1 of the Code)
made in article 24 of the Harvard Draft that parties to a stating a number of grounds which do not justify a
treaty can equally " contract out" of the rule (deriving party to a treaty in purporting to terminate it or to
from the principle of the unity and continuity of the treat the obligation as being at an end.16 As has already
State) that changes of government in a State do not been explained in the introduction to the present
affect the treaty obligations of the State; as to this, see report, the subject of the termination of treaties, con-
further below in connexion with article 6. sidered in the 1957 report, has considerable affinities
with part of the content of the present chapter, in so far
DIVISION A. OPERATION AND EXECUTION as the latter deals with the question of the grounds that
OF TREATIES may, and those that will not, justify a party in failing to
carry out a treaty obligation. Just as certain grounds
may, according to circumstances, either justify the ad
SECTION 1. CHARACTER, EXTENT AND LIMITS
hoc non-performance of a particular treaty obligation
OF THE TREATY OBLIGATION
(though without bringing the treaty itself, or the obli-
gation, to an end), or else may justify the complete
Article 2. Fundamental principles governing the treaty termination of the treaty as a whole, so also do some
obligation of the same grounds (although often put forward) not
justify either non-performance of a particular treaty
9. The present section deals with the general topic
obligation or the termination of the treaty or obligation
of the character and extent of the treaty obligation and
of the limits of that obligation. A second main section lfi
of division A treats of certain particular questions of It was not strictly necessary to do so because, as this
section of the work professed to state affirmatively what were
treaty application; while division B deals with the con- the elements that would cause a treaty to come to an end or
sequences of, and redress for breach of treaty (enforce- justify a party in regarding it as terminated, and to state these
ment, so-called). exhaustively, it could be said to follow automatically that any
other ground was necessarily excluded. However, as was ex-
plained in the commentary to article 5 in the Rapporteur's
a previous report, i.e., that on treaty termination (article 5 in the second report, certain other grounds have so frequently been
second (1957) report), the Rapporteur followed the Harvard put forward by Governments, at one time or another, as justi-
draft without commenting on the matter. A revised view is now fying the termination of a treaty, that it seemed desirable in any
presented. Code to indicate them definitely as being insufficient.
 Law of treaties 53

as a whole. In these circumstances, and without pre- party of its obligations will confer on the other party
judice to the arrangement ultimately to be adopted for (or parties) a benefit which the latter can legally
the present Code, it seems better to leave undisturbed claim; and this is normally reciprocal. Even in those
the provisions on this subject, and the commentary cases where a treaty appears to involve nothing but
thereto, which already figure in part III of chapter 1 of obligations for one or more, or all, the parties, never-
the Code (Rapporteur's second (1957) report), and theless each party (although it may itself receive no
refer to these as may be necessary in commenting on direct benefit therefrom) has a right to claim the per-
the corresponding articles of the present chapter. formance of the obligation by every other party.
12. It is clear that any really detailed commentary on
the principles set out in article 2 of the present section Article 4. Obligatory character of treaties:
would involve something like a treatise on the funda- pacta sunt servanda
mental philosophy of international law, and this is not 15. Paragraph 1. This requires no special comment,
necessary for present purposes. As has already been apart from the general observations already made. There
stated, however, certain observations are contained in is no need for philosophical discussion when it is so
the commentary to article 5 in the Rapporteur's second obvious that treaties would lose their entire purpose
report (1957), and reference is accordingly made to and raison d'etre as legal instruments, were it otherwise
these, and also to the commentary to articles 3 to 8 than as here provided.
below.
16. Paragraph 2. The question of the—so to speak—
SUB-SECTION i. NATURE AND EXTENT OF THE TREATY spirit in which a treaty must be carried out perhaps
OBLIGATION belongs strictly to the sphere of treaty interpretation,
which will be the subject of a later report. It seems
Article 3. Obligatory character of treaties : nevertheless desirable to include some general statement
ex consensu advenit vinculum of principle in the present chapter. The principles of
good faith and of reasonableness (which are not quite
13. Paragraph 1. This is sufficiently covered by the identical) in the execution of treaties, are well re-
remarks already made in connexion with article 2 above. cognized, and have been given effect to by international
The paragraph does, however, attempt to give effect to tribunals.18 Indeed the very lack, internationally, of the
the important principle that the foundation of the treaty same possibilities of enforcement as exist in the case of
obligation does not really lie in the treaty itself, even if private law contracts, probably imposes on States and
it may superficially appear to do so. No treaty would Governments something in the nature of a special duty
be binding if there were not already a rule of law to the under international law to use the utmost good faith in
effect that undertakings given in certain circumstances the execution of treaties.19
and in a particular form create binding obligations.
17. " . . . s o as to give it a reasonable and equitable
Such a rule must necessarily lie outside the treaty, since
effect..." The question whether or not, and if so in
no instrument can derive binding force from itself
what circumstances, a treaty ought to be given the
alone. The principle that consent given in due form "maximum" effect of which it is capable, is again
creates a legal obligation is not a treaty rule of law, really a question of interpretation. It is the familiar
though it is a rule on which the whole of treaty law is question of a restrictive versus a liberal interpretation
founded. Such a rule could not be created by treaty of treaty obligations. As such, it does not fall to be
because the very treaty purporting to do so would not dealt with here. It is, however, germane to the present
itself be binding without such a rule already pre- chapter to give some indication as to the general spirit
existing independently, as a rule of general international in which the treaty ought to be carried out, and for that
law (and of course the rule that consent gives rise to purpose to try to give some element of precision to
obligation has applications far wider than those of the the rather vague term " good faith ". Whether, in par-
particular sphere of treaties). ticular circumstances, some provision of a treaty ought to
14. Paragraph 2. The position regarding treaty rights be interpreted restrictively or the reverse is a matter of
is merely the converse of that relating to treaty obliga- the rules of interpretation; but within those limits it is
tions. It has nevertheless seemed desirable to include
this paragraph, because perhaps too much emphasis 18
See, for instance, as an example amongst modern cases, the
tends to be laid on the role of treaties in creating dictum of the International Court of Justice in the Morocco case
obligations as opposed to their role in creating rights. It (I.C.J. Reports 1952, p. 212) when, speaking of the exercise of
is true that some treaties involved only, or mainly, a certain right under a treaty, the Court said " The power . ..
obligations; 17 but as regards the great majority of rests with the . . . authorities, but it is a power which must be
exercised reasonably and in good faith." See also the four-
treaties, the intention is that the performance by one judge minority opinion in the case of Admission of a State to
the United Nations (Charter, Art. 4), Advisory Opinion : I.C.J.
17
For instance, treaties of the social or humanitarian type Reports 1948, pp. 82-93.
19
engage the parties to conform to certain modes of conduct, It has been suggested (Schwarzenberger, International Law
mainly in the interest and for the benefit of individuals as such, as applied by International Courts and Tribunals, vol. 1, 3rd ed.
irrespective of nationality, and with no direct material benefit (1957), p. 448) that "treaties may be described as bonae fidei
for any of the States parties to the treaty, apart from such as negotia as distinct from stricti juris negotia ". The present Rap-
they may indirectly derive from the good will and improvement porteur also, in a course of lectures delivered at The Hague
in international and other relations that may be expected to Academy of International Law in 1957, suggested that a doc-
result from the observance of such treaties. Treaties dealing trine corresponding to the private law doctrine of action uber-
with human rights afford a very good illustration of this type rimae fidei might be applicable generally in the discharge of
of treaty. international obligations.
54 Yearbook of the International Law Commission, Vol. II

always possible for parties to adopt a reasonable and Something was said under this head in connexion with
equitable approach to their duty of carrying out the the subject of "renunciation of rights" dealt with in
treaty, so as to give it an adequate effect. article 15 of part III of chapter 1 of the present Code,21
to which reference may be made. Clearly, and especially
18. " . . . according to the correct interpretation of its in the case of multilateral treaties, a failure by one or
t e r m s . . . " The exact nature of the obligation, of more parties to claim or enforce their rights under a
course, always depends on the correct interpretation of treaty may very much weaken its force, and in practice
the treaty according to its terms. The duty to apply it render it impossible for the other parties to insist upon
in good faith, and so as to give it a reasonable and or obtain its execution. At the same time, it is difficult in
equitable effect, can only exist within the scope of the principle to deny the right of a party to renounce its
treaty obligation itself, according to its correct inter- rights under a treaty or not to insist upon them. The
pretation. What paragraph 2 as a whole means is that conclusion must be that paragraph 2 of article 6 would
the correct interpretation of a treaty having been require to be applied with particular regard to the cir-
ascertained, it then becomes the duty of the parties to cumstances of each case. Nevertheless, as a statement of
carry it out reasonably, equitably and in good faith, principle it appears to be justified.
accordingly.
23. On the other hand, it is necessary to treat as a
19. Paragraph 3. This needs no particular comment. special case the situation that arises in connexion with
The obligation to carry out a treaty naturally pre- multilateral treaties when the provisions of an earlier
supposes that there is a valid treaty, which has been treaty are or may be affected by those of a later one
regularly concluded, is still in force, and which is not concluded by some only of the parties to the earlier
vitiated by any element affecting its essential validity; treaty. Even though the parties to the later treaty still
and, in the case of multilateral treaties, that the State remain technically bound towards those parties to the
concerned is and remains a party to it. Only on those earlier who are not also parties to the later treaty, the
assumptions can there be an obligation to carry out position of these latter parties may be prejudiced in
the treaty, because only on those assumptions is there a fact, if not in law. This case, to which exceptional con-
binding obligation. These matters have of course already siderations apply, in such a way that the later treaty is
been dealt with in chapter 1. not necessarily invalidated, is fully dealt with in con-
20. Paragraph 4. This draws the deduction, so to nexion with the subject of conflicting treaties in
speak, from the positive aspect of the principle pacta article 18 of part II of chapter 1 of the Code and the
sunt servanda, and from the remaining provisions of the commentary thereto.22
article, especially those of paragraph 1. It will be suffi-
cient, by way of comment, to refer to paragraphs 33 to Article 6. Obligatory character of treaties:
36 of the commentary to the corresponding provisions the principle of the unity and continuity of the State
in the sections on termination of treaties (article 5 (iii)
in the Rapporteur's second (1957) report). 24. Paragraph 1. The first sentence of this article
indicates that the treaty obligation always rests upon
Article 5. Obligatory character of treaties : the State, since it is the State which is the international
relationship of obligations to rights entity. A State has, however, always to act through
agents, such as Heads of State, Governments, Ministers,
etc. Provided the agency is a regular one, and the formal
21. This article deals with one or two points which, method of conclusion involved is one that binds the
while basically general, usually arise with reference to State in accordance with the provisions of part I of
multilateral treaties ; and paragraph 1 refers in particular chapter 1 of the present Code, 23 it is immaterial what
to a point already mentioned in paragraph 14 and foot- particular form or method, or what particular agency, is
note 17 above. As there explained, certain kinds of chosen to act on behalf of a State.
multilateral treaties do not involve direct benefits for
any of the participating countries. The benefit is of a 25. The principle embodied in the second sentence of
general character arising from participation in a common the paragraph follows inevitably from the first. Govern-
cause for the general good. What each party has a right ments are the agents of the State, and if a State is bound,
to claim as the counterpart of its own performance of the Government as the agent is obliged to carry out the
the treaty, is that it shall be duly performed by each of treaty.
the other parties.
26. " . . . irrespective of the character of its origin,
22. Paragraph 2. It is considered that as a statement or of whether it came into power before or after the
of principle, the provision here suggested must be conclusion of the treaty . . . ". The obligation of a Gov-
correct. It was stated in general terms by the Inter- ernment, as the agent of a State, to carry out the
national Court of Justice in the case of the Reservations State's treaty obligations is in no way affected by the
to the Convention on Genocide,20 when the Court said fact that the treaty was not actually concluded by that
that none of the parties to an international convention particular Government but by some previous Govern-
" is entitled to frustrate or impair, by means of unilateral
decisions or particular agreements, the purpose and rai- 21
Rapporteur's second (1957) report (A/CN.4/107), paras.
son d'etre of the convention." Difficulties may neverthe- 82-85 of the commentary.
less arise in applying this principle in particular cases. 22
See the Rapporteur's third (1958) report (A/CN.4/115),
commentary, paras. 88-90.
20 23
I.C.J. Reports 1951, p. 21. See Rapporteur's first (1956) report (A/CN.4/101).
 Law of treaties 55

ment or administration; for the change of Government the Harvard Draft Convention on Treaties,25 which
has in no way affected the continuity of the State, and gives the following explanation:
therefore at no point has the treaty obligation been " Forms of government and constitutional arrange-
terminated or diminished. Nor does it matter by what ments in these days are constantly being changed,
means the particular Government concerned has come and if the enjoyment of treaty rights and the duty of
into power, whether in the ordinary course of events or performance were dependent upon the continuance
by some abnormal or "unconstitutional" means. If it of the status quo in respect to the governmental orga-
purports to be and in fact is the Government of the nization or constitutional system of the parties, one
State, it must carry out the State's international obli- State would never be able to count with certainty on
gations. rights which have been promised it by another—and
promised, it may be, for a period of indefinite dura-
27. Paragraph 2 states certain particular consequences tion. Tf changes in the organization of a State's form
of the general principle enunciated in paragraph 1. It is of government or modifications of its constitutional
in relation to these matters that the principle of the system had the effect of terminating or altering its
unity and continuity of the State comes most frequently treaty obligations or of rendering them voidable, a
into play as respects treaty obligations. With refer- State which desired to avoid or reduce its obligations
ence, to the general principle of the identity and con- would need only to introduce a change in the orga-
tinuity of the State, the following passage from Hall is nization of its government or alter its constitutional
cited because of its importance with reference to the system. If such changes produced that effect. States
far-reaching effects (vide infra, passim) of the fact that would hesitate to enter into treaties, because in that
governments are only the agents of the State and not case one of the foundations of the treaty system,
the State itself: 24 namely, the permanence of treaties, would cease to
exist and treaty obligations would be terminable or
" I t flows necessarily from this principle that impairable at the will of any party."
internal changes have no influence upon the identity
of a State. A community is able to assert its right and 29. Of course, a particular treaty obligation may, by
to fulfil its duties equally well, whether it is presided reason of its actual subject-matter, be such that it
over by one dynasty or another, and whether it is applies, and can only apply, on the basis that the par-
clothed with the form of a monarchy or a republic. It ticular form of government prevailing in the contracting
is unnecessary that governments, as such, shall have a States at the time of the treaty continues. Thus, to
place in international law, and they are consequently quote the Harvard Draft again :26
regarded merely as agents through whom the com- " . . . a treaty between two States having the
munity expresses its will, and who, though duly monarchical form of government may provide for the
authorized at a given moment, may be superseded at mutual protection of their respective monarchs or
pleasure. This dissociation of the identity of a State relate to matters affecting their royal families or with
from the continued existence of the particular kind other matters peculiar to the monarchical form of
of government which it may happen to possess is not government."
only a necessary consequence of the nature of the
state person; it is also essential both to its inde- The Harvard Draft continues : 27
pendence and to the stability of all international re- "Manifestly, the obligations of such a treaty
lations. If, in altering its constitution, a State were to would necessarily be affected by a transformation of
abrogate its treaties with other countries, those coun- one or both of these States into a republic."
tries in self-defence would place a veto upon change,
and would meddle habitually in its internal politics. However, as the Harvard Draft goes on to say,28 such
Conversely, a State would hesitate to bind itself by cases are and have always been rare, and no special
contracts intended to operate over periods of some provision is necessary for them. Furthermore, when they
length, which might at any moment be rescinded by do occur, they are clearly covered by the principles
the accidental results of an act done without reference either of impossibility of performance (see below,
to them. Even when internal change takes the form of article 14, and also case (iv) in article 17 of part III of
temporary dissolution, so that the State, either from chapter 1 of the present Code 29 ), or else by that of
social anarchy or local disruption, is momentarily the complete failure of the raison d'etre of the treaty or
unable to fulfil its international duties, personal treaty obligation—a case which, as a ground of termi-
identity remains unaffected ; it is only lost when the nation of a treaty, has already been considered as case
permanent dissolution of the State is proved by the (v) in part III of chapter 1 of the Code.30 In all such
erection of fresh States, or by the continuance of cases, the justification for non-performance lies in the
anarchy so prolonged as to render reconstitution im-
possible or in a very high degree improbable." 25
Harvard Law School, Research in International Law, III.
Law of Treaties, Supplement to the American Journal of Inter-
national Law, vol. 29, 1935, p. 1045.
28. Sub-paragraph (a) of paragraph 2. No better 2
statement of the rationale of this rule could be found " Ibid.
27
than that contained in the commentary to article 24 of Ibid.
2
« Ibid., pp. 1045, 1046.
29
Rapporteur's second (1957) report ( A / C N . 4 / 1 0 7 ) . F o r
24
William Edward Hall, A Treatise on International Law, comment, see paras. 98-100 of the commentary in that report.
30
8th ed., Pearce Higgins, 1924, p. 21. Ibid., commentary, paras. 101-103.
56 Yearbook of the International Law Commission, Vol. II

particular circumstances and in the nature of the treaty, the family of States as long as the State itself retains
not in any general principle that a change of adminis- its personality. The State remains, although the gov-
tration or regime is a ground for non-performance. ernment may change; and international relations, if
they are to have any permanency or stability, can
30. The Harvard Draft goes on to refer to the quasi- only be established between States, and would rest
unanimity of the authorities in the above sense and upon a shifting foundation of sand if accidental forms
cites a large number of them 31 from which it appears of government were substituted as their b a s i s . . . "
that they are " in complete agreement that, as a general
principle, changes in the governmental organization or " A State subject to periodical changes in the form
constitutional system of a country... have no effect on of its government or in the persons of its rulers has a
the treaty obligations of States which undergo such deeper interest, perhaps, in the maintenance of this
changes ",32 It may be of interest to cite some of the doctrine than another more securely rooted in the
more striking passages from these authorities, as given principles of social order, but it is absolutely neces-
in the Harvard Draft. Thus Vattel, as there quoted, sary to the whole family of States, as the only
says: 3 3 possible condition of intercourse between nations. If
it was not the duty of a State to respect its interna-
" Since, therefore, a treaty . . . relates directly to the tional obligations, notwithstanding domestic changes,
body of the State, it continues in force even thought either in the form of the government or in the
the State should change its republican form of gov- persons who exercise the governing power, it would
ernment and should even adopt the monarchical be impossible for nations to deal with each other
form; for State and Nation are always the same, with any assurance that their agreements would be
whatever changes take place in the form of govern- carried into effect, and the consequence would be
ment, and the treaty made with the Nation remains disastrous on the peace and well-being of the world."
in force as long as the Nation exists."
The same principle was affirmed in Protocol No. 19 of 31. Revolutionary changes of social and political
the Conference on Belgian Affairs held in London in orders. While there is little difficulty, and an almost
complete consensus of opinion as regards "ordinary"
or constitutional changes of government, or even
"According to this higher principle, treaties do "normal", "unconstitutional" changes, it has been
not lose their force by reason of any change in maintained in recent times that the same is not the case
policy... the changes which have taken place in the where the change goes beyond the sort of change of
status of a former State do not authorize it to consider government or regime (whether regular or irregular)
itself released from its previous undertakings." that is to be expected as one of the incidents of inter-
Similarly, in the Swiss case of Lepeschkin v. Gosweiler,35 national life, the possibility of which States may be
the Swiss Federal Tribunal said: supposed to have taken into account in entering into
treaties. According to this view, the position is different
" I t is a principle of international law, recognized where the change goes beyond this and affects the whole
and absolutely uncontested, that the modifications in social and political order of the State concerned. A good
the form of government and in the internal organi- statement of this view was given by M. Korovin, Pro-
zation of a State have no effect on its rights and fessor of International Law in the State University of
obligations under the general public law; in par- Moscow, as follows : 3 7
ticular, they do not abolish rights and obligations
derived from treaties concluded with other States." "Every international agreement is the expression
of an established social order, with a certain balance
Finally, Moore stated: 3 6 of collective interests. So long as this social order
" As a person invested with a will which is exerted endures, such treaties as remain in force, following
through the government as the organ or instrument the principle, pacta sunt servanda, must be scrupu-
of society, it follows as a necessary consequence that lously observed. But if in the storm of a social
mere internal changes which result in the displace- cataclysm one class replaces the other at the helm of
ment of any particular organ for the expression of the State, for the purpose of reorganization not only
this will, and the substitution of another, cannot alter of economic ties but the governing principles of
the relations of the socity to the other members of internal and external politics, the old agreements, in
so far as they reflect the pre-existing order of things,
31 destroyed by the revolution, become null and void.
Op. cit., pp. 1046-1051.
32
To demand of a people at last freed of the yoke of
ibid., p. 1046. centuries the payment of debts contracted by their
33
E. de Vattel, Le droit des gens ou principes de la hi natu- oppressors for the purpose of holding them in slavery
relle appliques a la conduite et aux affaires des nations et des would be contrary to those elementary principles of
souverains, vol. I, reproduction of books I and II of 1758 edition
(Washington, D.C., Carnegie Institution of Washington, 1916), equity which are due all nations in their relations
book IT, chap. XII, para. 185. with each other. Thus in this sense the Soviet Doctrine
34
Jules de Clercq, British and Foreign State Papers, vol. 18, appears to be an extension of the principle of rebus
p. 780. sic stantibus, while at the same time limiting its field
35
Journal des tribunaux et revue judiciaire, 1923, p . 5 8 2 .
of application by a single circumstance—the social
36
revolution."
J o h n Bassett M o o r e , History and Digest of the Inter-
national Arbitrations to which the United States has been a
37
Party (Washington, D . C . , United States G o v e r n m e n t Printing " Soviet Treaties and International Law" in American
Office, ed. 1898), p . 3552. Journal of International Law, 1928, p. 763.
 Law of treaties 57

Some of the reasoning in this passage is clearly un- Code, 41 it would at least be entitled to argue the case
acceptable. But certain underlying ideas merit serious and seek the application of that doctrine.
consideration. Commenting upon it, the Harvard Draft
says: 3 8 32. Sub-paragraph (b) of paragraph 2. The principle
of the singleness—that is of the unity and continuity—
" I t can hardly be denied that there is some of the State equally entails that, when a breach of
foundation for the distinction which the Soviet jurists treaty occurs, it is quite immaterial through what
and the writers on international law cited above make agency of the State it takes place, or what particular
between the effect on treaty obligations of ordinary organ, whether by act of commission or omission, has
governmental and constitutional changes, on the one caused, or is (on the internal plane) responsible for the
hand, which occur normally in the process of the breach. This is a purely domestic matter. Internatio-
political and constitutional development of a State, nally, the result is the same: the treaty has been
and changes, on the other hand, which are the result broken, and the State (which is an indivisible whole
of violent revolutions which involve not only an internationally) is responsible.
alteration of the governmental organization or con-
stitutional regime of the State but also a complete 33. The most obvious and frequent application of
transformation of the political and even the economic this principle occurs in the field of legislation and of
and social organization of the State, and which result the acts or failures of the legislature in relation to the
in the establishment of a new order of things with implementation of the treaty. This aspect of the matter
which treaties concluded under preceding regimes are will be more conveniently considered in connexion
wholly or largely incompatible. But like other dis- with article 7 below, under the head of the supremacy of
tinctions in law and political science which may be international law over domestic law. A not less striking
sound in principle, the lack of precise criteria by application of the rule is afforded by considering the
which the line of demarcation between the two types position of the judiciary. As to this, the Harvard Draft
of changes can be drawn makes it difficult to lay says: 4 2
down a rule which would be just and free from "Under the jurisprudence or practice of many
danger but which at the same time would recognize States the courts are obliged to apply, and the
exceptions to the general principle that the obliga- executive authorities to enforce, municipal legislation
tions of a State are not affected by changes in its rather than treaty stipulations with which the legisla-
governmental organization or constitutional system. tion is inconsistent. If the enactment of legislation of
See as to this, Charles Calvo, Le droit international this kind affords no such excuse, the action of the
theorique et pratique, 5th ed. (Paris, Arthur courts of the State which enacted it in upholding its
Rousseau, 1896), vol. I, sect. 100." infra-territorial validity, or of the executive authori-
The last sentence of this passage brings out very well ties in enforcing it, when they are obliged under
the dangers of admitting an exception to the general their own municipal law to do so, does not add
rule in order to meet this type of case—dangers which anything to the legitimacy of the excuse for non-
could well be serious for the integrity and continuity of performance. The municipal law of the State which
treaties. The Harvard Draft continues : 3 9 thus obliges its courts and executive authorities is
itself inconsistent with the principle here asserted,
" Under these circumstances, it would seem to be namely, the obligation of a State to fulfil its treaty
the safer course to adopt a rule which enunciates the engagements regardless of what its municipal law
general principle and to leave States whose govern- my require."
ments and constitutional systems have undergone
profound and far-reaching transformations, such as Even in the United States, where Congress exercises
those referred to above, which result in a new order such a marked influence on treaty implementation,
of things to which existing treaties are no longer writers of great authority express the same view. Thus
applicable, to seek by negotiation a revision or Hyde says: 4 3
abrogation of the treaties or to invoke the application " I t must be clear that, while an American court
of the rule rebus sic stantibus as a means of freeing may deem itself obliged to sustain an Act of
themselves by an orderly and lawful procedure from Congress, however inconsistent with the terms of an
the obligation of further performance." existing treaty, its action in so doing serves to lessen
The present Rapporteur is content to leave it at that in no degree the contractual obligation of the United
—remarking only that it is somewhat doubtful if the States with respect to the other party or parties to the
doctrine of rebus sic stantibus in any way necessarily agreement. The right of the nation to free itself from
applies in such a case, according to the principles laid the burdens of a compact must rest in each instance
down in respect of that doctrine in the Rapporteur's on a more solid basis than the declaration of the
second (1957) report.40 Nevertheless, provided the Constitution with respect to the supremacy of the
State concerned is willing, in invoking the doctrine of laws as well as treaties of the United States."
rebus sic stantibus, to submit to the procedures provided All contrary views are based on the cardinal error of
by article 23 in part III of chapter 1 of the present treating the State as a divisible entity for international
purposes—an error which the government of the State
38
Op. cit., p. 1054. 41
39
Ibid., p. 1054. Ibid., para. 180 of the commentary.
42
40 Op. cit., pp. 1035, 1036.
See A/CN.4/107, and in particular articles 21 and 22 43
together with paras. 141-179 of the commentary in that report. Ibid., p. 1036.
58 Yearbook of the International Law Commission, Vol. II

in breach of the treaty not infrequently itself commits. Article 7. Obligatory character of treaties: the principle
Thus governments have been known to disclaim of the supremacy of international law over
responsibility on the ground that the breach was not domestic law
their act, but that of the legislature or judiciary, over
which, so they say (and this may be correct inter- 37. Paragraph 1. This states the principle in its tradi-
nally), they have, constitutionally, no control. Thus, tional form in so far as it relates to treaties. In com-
they say, they are not responsible for what has occurred. menting, it is not necessary to go into philosophical
On the internal plane, this may be true. But inter- issues concerning the precise relationship between inter-
nationally, the exact attribution of responsibility inter- national law on the one hand and domestic or national
nally is a domestic matter, and irrelevant. The responsi- law on the other, or to discuss theories of monism,
bility or otherwise of the government as such—i.e., of dualism, etc., especially since, despite the great theo-
the executive organ—simply does not arise, for the State retical divergencies between these doctrines, the prac-
is responsible. The government may be morally blame- tical result of them all, though arrived at by different
less, but it must, as the executive organ, accept responsi- means, is the same and is as stated in the article.46
bility for a failure of the statal system as a whole to 38. " . . . t a k e precedence of, and prevail interna-
carry out treaty obligations incurred, by and on behalf tionally . . . " The article does not attempt to say that,
of the State as such. As good a statement as can be in the event of a conflict between a treaty obligation
found of the error involved by any other view was and some domestic law, the treaty law will necessarily
given by Sir Eric Beckett in the following terms: 4 4 prevail on the internal plane, in the sense that the
" . . . this contention is based on an error—an error judge must give effect to the treaty obligation even if
which consists in attributing international responsi- this involves contravening some provision of the do-
bility to the government alone (though the govern- mestic law which is otherwise binding upon him. The
ment is merely the executive organ of the entity point is that, whatever happens, the international obli-
internationally responsible) instead of attributing it gations and responsibilities of the State are not affected.
to the State itself, which is an entity that comprises If the judge in fact applies the treaty, there will be no
the legislative organ, the judicial organ, and even the breach of an international obligation. If he does not,
people, as well as the executive organ, the govern- then the responsibility of the State will be entailed, and
ment." this will not be affected by the fact that, purely as a
matter of domestic law, he was justified in his act, for,
34. Sub-paragraph (c) of paragraph 2. It is un- in such a case, the domestic law itself is at fault, and
necessary to linger over this rule, which is well responsibility exists on that ground. As to this, see the
recognized, and equally derives from that of the con- remarks already made in paragraphs 31 and 33 above.
tinuing identity of the State which, according to
Hall, 45 "is considered to subsist so long as a part of 39. Paragraph 2. This and the succeeding paragraph
the territory which can be recognized as the essential state the main practical deductions to be drawn from
portion through the preservation of the capital or of the the general principle laid down by paragraph 1. The
original territorial nucleus, or which represents the State rationale of the principle, and of its consequences in the
by continuity of government, remains either as an in- treaty field, was expressed by the United States
dependent residuum or as the core of an enlarged Secretary of State with reference to the Cutting case, as
organization". Where identity is completely lost as a follows: 47
result of territorial changes (annexation, merger, divi- " . . . if a government could set up its own muni-
sion into two or more States, etc.), a case of state cipal laws as the final test of its international rights
succession arises. The treaty obligation may or may not and obligations, then the rules of international law
devolve on the new State or States concerned, but that would be but the shadow of a name and would afford
is a matter of the law of state succession which does not no protection either to States or to individuals. It has
affect the principle of the present sub-paragraph. been constantly maintained and also admitted by the
35. It may of course be that certain territorial Government of the United States that a government
changes render the further performance of the treaty cannot appeal to its municipal regulations as an
literally impossible; but, in that case, the legal justifi- answer to demands for the fulfilment of international
cation for non-performance would arise from the im- duties. Such regulations may either exceed or fall short
possibility itself, not from the territorial change as such, of the requirements of international law and in either
which would merely be the cause of the impossibility. case that law furnishes the test of the nation's liability
and not its own municipal rules. This proposition
36. Naturally, if the obligation relates specifically to seems now to be so well understood and so generally
territory lost as the result of the change, there will, as accepted, that it is not deemed necessary to make
the sub-paragraph recognizes, no longer be any duty to citations or to adduce precedents in its support."
carry out the obligation. But this is really simply
a specific case of impossibility and need only be Attention may also be called, in illustration of the
mentioned for the avoidance of doubts. general principle, to the well-known case of the
44 40
" Les questions d'interet general au point de vue juridique On tin's subject, see the Rapporteur's lectures given at The
dans la jurisprudence de la Cour permanente de Justice inter- Hague Academy of International Law in 1957, sections 41-47
nationale ", Recueil ties cours de la Have, vol. 39 (1932, I), (to be published in due course in the Recueil des cours).
p. 155. Sir Eric Beckett was Principal Legal Adviser to the 47
Foreign Office, London, 1945-1953. Papers relating to the Foreign Relations of the United
States, 1887, p. 751 ; Moore, A Digest of International Law,
45
Hall, op. cit. (see footnote 24). vol. 2, 1906, p. 235.
 Law of treaties 59

Alabama, in which the fact that United Kingdom legis- the conflict arises from some positive provision, a con-
lation was deficient in provisions enabling the Govern- trario, of the local law or constitution; or negatively,
ment to prevent unneutral expeditions from being fitted by reason of a lack of such enabling provisions as may
out and leaving the country in time of war (the United be required internally for the execution of the treaty ;
Kingdom being neutral), was held not to afford any and similarly, whether these conflicts or deficiencies
answer to a charge of a breach of the rules of neu- were in existence at the time when the treaty entered
trality.48 The principle involved was stated as follows into force, or have been created, or have come about,
in the United States argument in the case: 4 9 subsequently.
" It must be borne in mind, when considering the 42. " . . . or special features or peculiarities of the
municipal laws of Great Britain, that, whether law or constitution . . . " This is taken from article 23
effective or deficient, they are but machinery to of the Harvard Draft, and by way of comment reference
enable the Government to perform the international may be made to the discussion on pages 1039 to 1044
duties which they recognize, or which may be in- of the relevant volume.52 The case is there considered
cumbent upon it from its position in the family of mainly with reference to the special features of federal
nations. The obligation of a neutral State to prevent constitutions; but clearly the principle is of general
the violation of the neutrality of its soil is indepen- application. The authors of the Harvard Draft evidently
dent of all interior or local law. The municipal law took the view that, although under a given federal con-
may and ought to recognize that obligation; but it stitution certain powers may be reserved to the com-
can neither create nor destroy it, for it is an obli- ponent states of the Federation, so that the federal
gation resulting directly from international law, government cannot intervene in the matters thus regu-
which forbids the use of neutral territory for hostile lated, this would not absolve the Federation from
purpose." responsibility for a failure to carry out a treaty or other
international obligation. In the last resort, the consti-
40. That the same principle applies not merely to
tution can be amended, and, if it is not, the State must
conflicts with ordinary provisions of municipal law, but
abide by the international consequences of an inherent
also to conflicts with provisions of the constitution of
inability to carry out its international obligations in
the State concerned, was made clear by the Permanent
certain respects. However, most federal constitutions
Court of International Justice in the case of the Treat-
vest in the federal authority the power to conduct the
ment of Polish Nationals in Danzig, when the Court
foreign relations of the State. This power involves a
said: 5 0
right for the federal legislature to legislate in such
" It should... be observed t h a t . . . according to manner as may be required to control the action of the
general principles of l a w . . . a State cannot adduce various component states (or withdraw from them
as against another State its own Constitution with a certain powers) in relation to foreign affairs. Thus the
view to evading obligations incumbent on it under Harvard Draft, citing a number of United States
international law or treaties in force... it results that authorities, says 53 that
the question of the treatment of Polish nationals or
other persons of Polish origin or speech must be " . . . if, as a result of the governmental organi-
settled exclusively on the basis of the rules of inter- zation of a State, the execution of its treaty obliga-
national law and the treaty provisions in force tions is dependent in part upon the action of the
between Poland and Danzig." local governments and it is within the power of the
national government to remedy this situation by
The Permanent Court made the same affirmation in withdrawing from the local governments the autho-
regard to municipal law in the Graeco-Bulgarian Com- rity which they have in respect to the execution of
munities case, as follows : 5 1 treaties and transferring it to the national govern-
ment, and if it refuses to do this, it should likewise
" . . . it is a generally accepted principle of inter-
bear the responsibility for the non-performance of
national law that in relations between Powers who any treaty obligations which may result therefrom.
are contracting Parties to a treaty, the provisions of This appears to have been admitted by Presidents
municipal law cannot prevail over those of the Harrison, McKinley, and Roosevelt, who urged Con-
treaty." gress to enact legislation of this kind which would
41. "...whether enacted previously or subsequently enable the United States to enforce more effectively its
to the coming into force of the treaty . . . ", " . . . nor treaty obligations in respect to the treatment of
by deficiencies or lacunae..." It is obviously im- aliens."
material (because the practical result is the same— By way of illustration, two cases are cited: 5 4
namely, inability to perform the obligation) whether
"Switzerland acted on this principle when, after
becoming a party to the Paris Convention of March
48
This case led directly to the passing of the so-called 20, 1883, for the protection of industrial property, a
"Foreign Enlistment Act", 1870, in the United Kingdom, in matter to which the legislative competence of the
order to prevent any such occurrence in the future.
49
Confederation did not extend, Article 64 of the
Papers relating to the Treaty of Washington, Geneva Arbi- Swiss Federal Constitution was amended to bring
tration, 1872, p. 47.
:>0
Publications of the Permanent Court of International Jus- 58
tice, Judgments, Orders and Advisory Opinons, series A/B, See footnote 15.
No. 44, p. 24. ss ibid., p. 1043.
51 54
Ibid., series B, No. 17, p. 32. Ibid., pp. 1043, 1044.
60 Yearbook of the International Law Commission, Vol. II

the protection of industrial property within the compe- only to prevent (or compel) some particular action, on
tence of the national government and thus enable the certain specific grounds—but not necessarily on others,
State to execute the stipulations of the treaty... It if applicable. But the distinction is nevertheless a fine
may be assumed that the Congress of the United one, which in many cases it will be difficult to draw
States acted on the same principle when, by the Act clearly or satisfactorily.
of August 29, 1842, passed as a result of the McLeod
affair, it extended the jurisdiction of the federal 45. In his separate (but, on the main issue, concur-
courts to cover such cases, and thus removed the rent) 56 opinion, Sir Hersch Lauterpacht stated the
possibility of future conflicts with foreign countries question as follows : 5 7
arising out of incidents over which the local rather " If a State enacts and applies legislation which,
than the national courts formerly had jurisdiction." in effect, renders the treaty wholly or partly in-
43. Paragraph 3. This paragraph has been inserted operative, can such legislation be deemed not to con-
because of the recent decision of the International Court stitute a violation of the treaty for the reason that the
of Justice in the Guardianship of Infants case (Nether- legislation in question covers a subject-matter dif-
lands v. Sweden)5"> which, although it certainly cannot ferent from that covered by the treaty, that it is con-
have been intended by the Court to throw doubt on the cerned with a different institution, and that it pursues
principle of the prevalence of treaty obligations over a different purpose ? "
domestic law provisions, appears to have implications Sir Hersch went on to point out that the difficulty was
dangerous to that principle, as was cogently brought out increased by the fact that the conflict between the
in the (on this point) dissenting views expressed by treaty and the legislation in question may be concealed,
Sir Hersch Lauterpacht. Without attempting to go into or may be " made to be concealed ", by what might be
all the facts of this case, the question it raises may be " no more than a doctrinal or legislative difference of
stated as follows. There may exist a treaty between classification " ; and he drew attention to the fact that
two States about subject-matter (A)—e.g., " Guardian- an " identical provision which in the law of one
ship of Tnfants", where the infant is a national of one country forms part of a law for the protection of
of the parties resident in the territory of the other—and children may, in another. . . , be included within the
the specific laws of the parties respecting the guardian- provisions relating to guardianship ". " That," he said,
ship of infants as such may be in perfect conformity " as will be seen, is no mere theoretical possibility." 5H
with the treaty. However, there may be a law on another He refused to admit that a valid distinction could be
subject (B), which is technically distinct from (A) based on the mere fact that the treaty and the law had
—e.g., " Child Welfare ", " Protection of Young People " different objects, if in practice the substance was the
etc.—and the provisions of this law may be such that if same, and added that when a State concludes a treaty
applied they will, or may, result in consequences "it is entitled to expect that that treaty will not be
contrary to those apparently contemplated by the mutilated or destroyed by legislative or other measures
treaty. In such a case, the defendant party may seek to which pursue a different object but which, in effect,
justify its action on the ground that the treaty cannot render impossible the operation of the treaty or of part
have been intended to prejudice the operation of thereof".59 The correct view was, therefore, so he
general laws not directly concerned with the subject- thought, that a treaty must be held to cover "every
matter of the treaty, and having a different primary law and every provision of a law which impairs, which
object. In the Guardianship of Infants case before the interferes with, the operation of the treaty". 60
International Court of Justice, this type of contention
resulted in custody of the person of a minor, which (as 46. In giving practical illustrations of what might
the relevant treaty prima facie required) would, on occur, Sir Hersch Lauterpacht said : 6 1
"guardianship" grounds, have been conferred on a " The following example will illustrate the prob-
certain person, being conferred on someone else, on lem and the consequences involved: States often
" child welfare " grounds. conclude treaties of commerce and establishment pro-
44. It is clear that all such cases must depend very viding for a measure of protection from restrictions
much on their own facts, and also on the interpretation with regard to importation or export of goods, ad-
of the particular treaty involved; and the Rapporteur mission and residence of aliens, their right to inherit
is not concerned here to question the correctness of the property, functions of consuls, and the like. What is
decision of the Court as such, which, as the separate the position of a State which has concluded a treaty
opinions showed, could also be based or explained on of that type and then finds that the other party
other grounds (see below, paras. 47 and 4 8 ; also
footnotes 56 and 62). This type of contention never- 5(!
Sir Hersch concurred in the dispositif of the decision,
theless has disquieting implications. No doubt, in namely, the rejection of the Netherlands claim ; but he did so
theory, a distinction can be drawn between, on the one on the orclre public point mentioned below (see paras. 48 and
hand, the case where a State clearly evades the appli- 115) which the parties had treated as the main issue in the case,
although the Court itself thought it unnecessary to pronounce
cation of a treaty by relying on provisions of its on it.
legislation that ostensibly relate to another subject, but
37 I.C.J. Reports 1958, p. 80.
nevertheless lead to non-performance of the treaty; 68
and, on the other hand, cases where the treaty itself can Ibid., pp. 80, 81.
59
be interpreted as having been intended by the parties Ibid., p. 81.
60
Ibid.
55
I.C.J. Reports 1958, p. 55. e1 Ibid., pp. 81, 82.
 Law of treaties 61

whittles down, or renders inoperative, one after elusion.) °4 What is inadmissible is the general proposi-
another, the provisions of that treaty by enacting laws tion that to recall Sir Hersch's language (see paragraph
'having a different subject-matter' such as reducing 46 above)—a State is entitled " to cut down its treaty
unemployment, social welfare, promotion of native obligations in relation to one institution by enacting in
craft and industry, protection of public morals in the sphere of another institution provisions whose effect
relation to admission of aliens, racial segregation, is such as to frustrate the operation of a crucial aspect of
reform of civil procedure involving the abolition of the treaty".
customary rights of consular representation, reform
of the civil code involving a change of inheritance 48. Equally, there may be cases, or classes of treaties,
laws in a way affecting the right of inheritance by where international law or custom implies a condition
aliens, a general law codifying the law relating to in the treaty, of such a nature as even to allow, on
the jurisdiction of courts and involving the abolition certain grounds, action that would otherwise be con-
of immunities, granted by the treaty, of public vessels trary to its express terms. The exception of ordre public,
engaged in commerce, or any other laws 'pursuing inherently to be implied in treaties dealing with private
different objects ' ? It makes little or no difference to international law topics (on which a number of indi-
the other party that the treaty has become a dead let- vidual opinions in the Guardianship of Infants case
ter as the result of laws which have so obviously —though not the decision of the Court itself—were
affected its substance, but which pursue a different based), is a case in point; and other cases are con-
object." 62 sidered below in connexion with article 23. But this
again is quite a different matter from a proposition of a
general character permitting non-performance of a
Sir Hersch eventually went on to make the following treaty merely because such non-performance can be
general statements of principle : 63 based on the application of a law which, as a matter of
" A State is not entitled to cut down its treaty classification, relates to some other field or institution.
obligations in relation to one institution by enacting
in the sphere of another institution provisions whose Article 8. Obligatory character of treaties :
effect is such as to frustrate the operation of a crucial the case of conflicting treaty obligations
aspect of the treaty. There is a disadvantage in
accepting a principle of interpretation, coined for the
purposes of a particular case, which, if acted upon 49. Paragraphs 1 and 2. In principle, a State which
generally, is bound to have serious repercussions on becomes a party to two treaties that are in mutual
the authority of treaties." conflict is nevertheless bound by both of them. This
does not mean to say that it can in practice carry both
of them out, but that it incurs international responsi-
"Once we begin to base the interpretation of bility for the failure to perform whichever of them is
treaties on conceptual distinctions between actually not carried out. Which this is to be depends on con-
conflicting legal rules lying on different planes and siderations discussed in an earlier report.05 Assuming
for that reason not being, somehow, inconsistent, it (for otherwise there is no real conflict) that the two
may be difficult to set a limit to the effects of these treaties were concluded with two different parties, then,
operations in the sphere of logic and classification." for each of these two parties, the other treaty is res inter
alios acta, and each of these parties is, by reason of the
principle pacta tertiis nee nocent nee prosunt, entitled
47. It is on the views thus expressed by Sir Hersch to insist on the due performance of the particular treaty
Lauterpacht in this case that the Rapporteur has based concluded with itself, or on reparation for any failure to
paragraph 3 of article 7 of this section. As far as the do so. It should perhaps be added that the Rapporteur
principle of the thing goes, these views seem clearly has not felt it necessary to say any more here about the
correct. This is not to say that there may not be cases " effect" of a later treaty or treaty obligation on an
where, on the interpretation of the particular treaty, it earlier one than has already been said in his second and
appears that it did not purport to limit the freedom of third reports, for two reasons. In the first place, the
action of the parties in certain respects, despite the matter is primarily one of the interpretation of the two
fact that in some cases this could have consequences treaties or treaty obligations concerned. Secondly (apart
different from what would have resulted from the strict of course from the cases coming within the scope of the
application of the treaty if no other considerations had
existed. This indeed seems to have been the real basis 01
on which the majority of the Court reached their con- See the Court's final conclusion reading as follows (l.C.J.
Reports 1958, p. 71) :
" It thus seems to the Court that, in spite of their points
of contact and in spite, indeed, of the encroachments revealed
in practice, the 1902 Convention on the guardianship of in-
02
Sir Hersch here pointed out that some of the laws he had fants does not include within its scope the matter of the
just mentioned might be of such a nature as to come within protection of children and of young persons as understood
the scope of certain exceptions always implied in treaties or in by the Swedish Law of June 6th, 1924. The 1902 Convention
some classes of treaties—a matter considered below in con- cannot therefore have given rise to obligations binding upon
nexion with article 23 of the present draft; but, he said, " the the signatory States in a field outside the matter with which
argument here summarized docs not proceed on these lines. It it was concerned, and accordingly the Court does not in the
is based on the allegation of a difference between the treaty present case find any failure to observe that Convention on
and the law which impedes its operation ". the part of Sweden."
65
63
See the Rapporteur's third (1958) report (A/CN.4/115),
I.C.J. Reports 1958, p. 83. articles 18 and 19 and commentary thereto.
62 Yearbook of the International Law Commission, Vol. II

present article), either the later obligation terminates the stances. The object of this sub-section is to group
earlier (whether by actual cancellation or by replacing together a statement of those circumstances in which
it with an amended version), or the existence of the non-performance of a treaty obligation would, in
earlier one has the effect of invalidating the later. These principle, be justified. This is considered under three
aspects of the effects of treaties on one another are heads:
therefore, or should be, fully covered by the sections (a) General principles and classification;
on termination and essential validity. Where, on the
other hand, neither of the two treaties or treaty obliga- (b) Non-performance justified on general grounds
tions is either terminated or invalidated by the other, of law;
but yet they conflict, then and only then will the (c) Non-performance justified by virtue of a term
situation contemplated by the present article arise. or condition implied by law in the treaty.
50. Paragraph 2. Sub-paragraphs (a) and (b) require
no comment beyond what has already been made in an RUBRIC (fl). GENERAL PRINCIPLES AND CLASSIFICATION
earlier report.66 Strictly, in neither case is there any true
conflict. In the one, the parties have by their own Article 9. General definition of non-performance
action eliminated one of the two sets of obligations justified by operation of law
concerned; and in the other, one set of obligations is
rendered null and void.
54. The point sought to be brought out in this article
51. Sub-paragraph (c) of paragraph 3. Article 103 is that the grounds of non-performance mentioned in
of the Charter of the United Nations provides that "in the present sub-section do not derive from (and there-
the event of a conflict between the obligations of the fore they necessarily operate independently of) any
Members of the United Nations under the Charter and specific term of the treaty. It goes without saying that,
their obligations under any other international agree- if the treaty itself provides certain grounds of non-
ment, their obligations under the Charter are to prevail." performance or permits of non-performance in certain
Since all Members of the United Nations, whether in circumstances, then non-performance on those grounds
relation to pre-existing or to subsequent treaties, have or in those circumstances will be justified; but that is
become Members on this basis, it must be assumed that a matter of the interpretation of the treaty, and not
they have also accepted the fact that if any treaty obli- therefore within the scope of the present chapter.
gations owed to them by other Members conflict with
the obligations of those Members under the Charter, the Article 10. Scope of the present sub-section
latter will prevail—with the result that performance of
the treaty cannot be claimed, and no responsibility will 55. The object of this article is to make it clear that
be incurred vis-a-vis another Member State of the the case dealt with in the present sub-section, though a
United Nations in respect of such non-performance. related one, is distinct from that of the grounds upon
52. In respect of non-member States, on the other which, by operation of law, a treaty as such, or a par-
hand, the position cannot be quite the same. It is clear ticular part of it, can be regarded as wholly terminated or
that for the Member State, its Charter obligations will indefinitely suspended. The latter case has been con-
duly prevail over those of any other treaty, even though sidered elsewhere.68 The present sub-section assumes
the other party to the treaty is not a Member of the that the treaty itself remains in force, and considers the
United Nations. It is less easy, however, to hold that, in circumstances in which, despite this fact, its non-perfor-
such circumstances, the Member State incurs no respon- mance, either in whole or in part, may become justified.
sibility at all for the breach of the treaty, and that the Consequently, whereas in the report on the termination
non-member State, party to the treaty, has no valid of treaties (Rapporteur's second (1957) report) the
international claim. On the basis of the principle res grounds of termination there considered looked towards
inter alios acta and pacta tertiis nee nocent nee prosunt, a permanent or semi-permanent outcome—namely,
this provision of the Charter cannot be a ground complete termination, or at least indefinite suspension,
vis-a-vis a non-member State for violating a treaty with of the treaty, either as a whole or as regards some par-
such a State. The Charter obligation may prevail in the ticular obligation under it—the present sub-section has
sense that the other treaty cannot be carried out because in view mainly non-performances of a temporary or
of the Charter obligation and of Article 103 ; but it ad hoc character which, so far from having any element
would seem that the Member State will nevertheless be of permanence, look forward to a resumption of per-
under an obligation to make due reparation to the non- formance so soon as the occasion that justified the non-
member for the breach involved.67 performance is past. It is in this that the real difference
between the subject of "grounds of non-performance"
and that of "grounds of termination" lies, and which
SUB-SECTION II. LIMITS OF THE TREATY OBLIGATION
calls for their separate treatment, despite the close
(CIRCUMSTANCES JUSTIFYING NON-PERFORMANCE)
analogy between them.
53. The extent of the treaty obligation is not un- 56. Notwithstanding these considerations, the Rap-
limited, nor does the obligation prevail in all circum- porteur has thought it desirable to include two cases in
which, in the nature of things, the non-performance will
es ibid.
67
See the similar conclusion reached in paragraph 85 of the 68
commentary in the Rapporteur's third (1958) report (A/CN.4/ See the Rapporteur's second (1957) report (A/CN.4/107),
115). articles 16-23 and commentary thereon.
 Law of treaties 63

be permanent and for all practical purposes the obliga- tions be specifically intended to apply to some of the
tion will terminate or lapse (subject in one case to the situations contemplated in the present sub-section.
rules of state succession). These cases form the subject
of articles 21 and 22 below. They have already figured 61. Paragraph 2. Some grounds of non-performance,
in the sections on termination (see footnote 68 such as impossibility of performance, do not involve any
hereto), although in one case perhaps not quite ade- choice; but in most cases, they involve circumstances
quately. They are re-introduced here in order to take affording a faculty of non-performance to the party
the opportunity of distinguishing them from the super- concerned, and that party can elect whether to exercise
ficially similar cases arising with reference to the this faculty or not. This being so, it would seem that
subject of Essential Validity which was considered in such party must exercise the faculty within a reasonable
the Rapporteur's third (1958) report.69 As to this, see time. If it does not do so, it will be taken to have
below in the commentary to articles 21 and 22. (Some accepted the situation that originally gave rise to the
rearrangement of all this may eventually be desirable.) faculty as being one that does not affect its obligation to
continue performance of the treaty in full. Naturally,
57. Article 23, on the other hand, which may also this principle cannot be invoked by any other party to
give rise to semi-permanent situations of non-perfor- the treaty not itself performing its obligations under the
mance, involves considerations of a different order, and treaty.
had to be included in the present sub-section.
62. Paragraph 3. The principle involved here is the
same, mutatis mutandis, as the one already discussed in
Article 11. Classification an earlier report in relation to the grounds for the termi-
nation of treaties. For comment reference may be made
58. This article attempts to give a general statement, to the Rapporteur's second (1957) report (A/CN.4/
under main heads, of the circumstances in which non- 107), paragraph 91 of the commentary.
performance of a treaty obligation may be justified.
63. " . . . (unless this act or omission was both ne-
Paragraph 1 is little more than a restatement in more
cessary and legally justified)...". This deals with a
analytical form of article 9, the commentary to which is
rather difficult point, perhaps not altogether satis-
contained in paragraph 54 above.
factorily handled in the earlier report referred to. Some
59. Paragraph 2. There is a certain ambiguity in the contributory acts might involve no illegality, yet be
division in this paragraph between justifications for unnecessary and such as could have been avoided. Per
non-performance operating ab extra and ab intra the contra no illegal act can be said to be " necessary".
treaty. Strictly, both operate ab extra, inasmuch as Therefore, only if the contributory act (where it exists)
neither derives from any specific term of the treaty can be shown to have been both lawful and necessary,
permitting non-performance, or even from a term of will it not preclude the party concerned from invoking
the treaty which can be read by implication as per- the relevant ground of non-performance.
mitting non-performance. The grounds in question are
either general legal grounds justifying non-performance 64. Paragraph 4. It is sufficient to refer to the com-
having nothing at all to do with the treaty, or else they mentary to article 16, paragraph 5, in the Rapporteur's
can consist of conditions which, by general operation second (1957) report (A/CN.4/107, para. 92 of the
of law, are to be read into the treaty, even though they commentary).
are not expressed or even implied by any actual term of
it. All these grounds are considered under rubric (b) of RUBRIC (b). NON-PERFORMANCE JUSTIFIED ab extra BY OPERATION
the present sub-section. OF A GENERAL RULE OF INTERNATIONAL LAW

Article 12. Certain general considerations applicable in Article 13. Acceptance of non-performance by the other
all cases where a right of non-performance by opera- party or parties
tion of law is invoked
65. This article and articles 14 to 19, inclusive, deal
60. Whatever the ground of non-performance, and with the grounds of non-performance based on general
however it may arise, assuming it to be a ground legal considerations and having no reference to the
provided for in the present sub-section, certain common particular treaty. Article 13 itself requires no explana-
considerations will govern its operation. tion, since it is obvious that, even if a non-performance is
not intially justified, its acceptance by the other party or
Paragraph 1. This paragraph is self-explanatory. Ob- parties concerned will suffice to legitimize it. As is stated
viously no ground of non-performance, however much in paragraph 2, however, to have this effect the
otherwise justified by general considerations of law, can acceptance must be clear and unmistakable, and must
be invoked if specifically excluded by the treaty itself. indicate that the other party does more than merely
Moreover, just as in the case of war, some treaties are tolerate the non-performance in the sense of not seeking
specifically concluded with a view to application in any redress for it and not taking counter-action or having
time of war or hostilities (Hague, Geneva Conventions, recourse to any available remedies. All these things can
etc.)—and therefore obviously do not fall under what occur without the other party having in any way given
might otherwise be the terminative or suspensory effect its consent to the non-performance. There must conse-
of war on treaties—so equally may some treaty obliga- quently be such an acceptance as amounts to an agree-
ment by the other party that performance shall not take
69
See footnote 22. place.
64 Yearbook of the International Law Commission, Vol. II

Article 14. Impossibility of performance that that principle has no application to the case of the
non-performance of a particular treaty obligation except
66. Paragraphs 1 and 2. In connexion with these para- in those cases where the obligation is fundamental, so
graphs, it will be sufficient mutatis mutandis to refer to that the principle rebus sic stantibus, if applicable at all,
paragraphs 98 to 100 of the commentary to the Rappor- would tend towards the termination of the treaty. It is
teur's second report, dealing with the case of impossi- no doubt true that minor obligations may become
bility as a ground for the termination of a treaty, except obsolete. Their termination or justified non-performance
of course that, ex hypothesi, the requirement of the per- may occur through acquiescence or desuetude, and it
manent and irremediable character of the impossibility seems unnecessary to provide specially for such cases.
—necessary as a ground of termination—will not apply
69. The Rapporteur has also considered whether what
in the present case.
figured as case (v) in article 17 of the sections on
67. "Temporary or ad hoc impossibility of perfor- termination of treaties,72 namely, complete disapperance
mance . . . " A permanent impossibility would of course of the raison d'etre of the treaty or treaty obligation,
bring the treaty or the particular obligation to an end ought to figure in the present sub-section also. It is of
altogether. The case here contemplated is therefore course perfectly possible that a treaty as a whole
necessarily that of a temporary impossibility justifying remains in force, but that certain of its provisions have
non-performance for the time being. This really applies become obsolescent or inapplicable. An example of the
to all the grounds of non-performance considered in this kind of case involved might be that already considered
report—at least to all those coming under rubric (a) of above in another connexion, in paragraph 29 of this
the present sub-section (see paras. 55-57 above). The commentary—i.e., where there are in a treaty certain
point (which, though made with reference to the provisions based on the existence of a monarchical system
question of force majeure (i.e., impossibility), really of government for the parties, but they have subse-
applies in respect of all the grounds of non-performance quently become republics. However, it would seem that
considered in the present rubric), is well brought out in such cases would normally both be covered by the
the following passage from Rousseau : 7 0 principle of impossibility of performance, and, in any
event, would involve the total extinction or termination
" The causes for the lapse of treaties should not be of the obligation concerned rather than any mere non-
confused with force majeure, which may create an performance as such, so that the question of simple non-
obstacle to the performance of a treaty. This distinc- performance would not arise or be relevant. It does not
tion is made both in theory and in conventional law.
therefore seem necessary to deal with this case in the
On the one hand, Professor Scelle clearly distinguishes
present context.
impossibility of fulfilment from desuetude (Precis,
II, p. 419). On the other hand, the convention on
treaties adopted at Havana on 20 February 1928 by Article 15. Legitimate military self-defence
the Sixth International Conference of American States
deals in two separate articles with force majeure 70. The case here contemplated, namely, that of the
(art. 14) and the rebus sic stantibus clause (art. 15). temporary non-performance of a particular treaty obli-
" In international law, the effect of force majeure gation on grounds of legitimate military self-defence, is
will be to exonerate a State from the responsibility distinct from the case of the termination or suspension of
which would normally devolve upon it for non-perfor- a treaty as a whole by reason of war or hostilities, which
mance of a treaty. When the force majeure disappears, falls to be dealt with as a separate matter. 73 War does
the obligation of performance will reappear, this being not necessarily terminate or suspend all treaties or treaty
proof that the treaty subsists." obligations, but when it does do so, it effects either a
complete termination or a suspension for the duration of
68. Paragraph 3. The reasons for this paragraph arise the hostilities. What is contemplated in the present con-
out of the very nature of the plea of rebus sic stantibus. text is the case of a specific and more or less ad hoc non-
It is obvious that this plea is never likely (and certainly performance of some particular obligation of an other-
ought not) to be raised, in respect of any provision of wise still subsisting treaty, on the ground of legitimate
a treaty that is not fundamental to the treaty. It follows self-defence. The present case therefore assumes that the
that, if there are valid grounds for the plea of rebus sic treaty remains in full force and, in principle, fully
stantibus at all, they will be grounds for terminating the operative, and merely considers the circumstances in
treaty altogether. The principle that the plea of rebus sic which, on grounds of legitimate self-defence, it may be
stantibus can only be put forward on a basis fundament permissible not to perform for the time being a particu-
to the continuation in force of the treaty has already been lar obligation of the treaty, or possibly all the obliga-
fully brought out and discussed in relation to articles 21 tions of the treaty. It should perhaps also be mentioned
to 23 of part III of chapter 1 of the Code. 71 Change of that the case is, in principle, also distinct from that of
circumstances having reference to a treaty obligation impossibility of performance, although in practice im-
which is not fundamental to the treaty in question, can possibility might in fact well exist.
hardly itself be a fundamental change of circumstances
of the kind required for the application of the principle 71. Paragraph 1. The Rapporteur does not consider
of rebus sic stantibus ; and it must be concluded therefore that so-called "necessity", sometimes suggested as a
general ground justifying non-performance of treaty
70
Charles Rousseau, Principes generaux du droit international 72
public (Paris, Editions A. Pedone, 1944), vol. I, p. 365. Ibid., paras. 101-103 of the commentary.
71 73
See A/CN.4/107, paras. 141-180 of the commentary. Ibid., para. 106 of the commentary.
 Law of treaties 65

obligations, can (considered as a category) be regarded treaties,74 in which a number of opinions of the Law
as being a valid ground of non-performance. To put the Officers of the Crown in England are quoted in illus-
matter differently, the only kind of necessity which tration of it (as indeed also of the general principle of
entails that justification is legitimate military self- article 15 above). Thus, in an opinion given by the
defence. Again, the term " military" has been used King's Advocate 75 (the well-known Court of Admiralty
advisedly in order to exclude other contexts in which jurist and internationalist, John Dodson), dated 6 Feb-
the term " self-defence " has recently come to be used, ruary 1835, the following view was expressed: 76
such as "economic self-defence" or "ideological self- " I must take leave, however, to add that under the
defence ". Certain of these factors might be grounds special circumstances of a disputed succession to the
upon which a party might seek to avail itself of any Throne, and an internal Civil War, Spain may
legitimate method of bringing the treaty to an end, or, possibly be justified, by a necessary attention to her
in some cases, they might give rise to a situation of own security and preservation, in making prohibitory
impossibility of performance, or of the application of municipal regulations applicable to British Vessels in
the doctrine of rebus sic stantibus, which might cause or common with those of all other Foreign Friendly
justify the termination of the treaty in accordance with Nations, but which in case of certain Ports should not
principles set out in a previous report; but so long as apply to her own vessels, since no Nation is bound to
the treaty subsists, they are not, in general, grounds for abide by a Treaty of Commerce under circumstances
failing to perform its obligations. The case of military which render an adherence to it inconsistent with its
self-defence is different in principle, provided that the own security."
conditions specified by sub-paragraphs (a) to (d) are
fulfilled. In a footnote to this passage, Lord McNair expresses
doubts about some of the possible implications of this
72. These conditions are self-explanatory. The one view, as follows : 7 7
contained in sub-paragraph (b) is necessary in order to
avoid a pretext for the non-performance of treaty "This language comes dangerously near that
obligations in the course of an operation that does not which is used by some writers stating the rebus sic
properly consist of military self-defence being made. stantibus doctrine. But the temporary suspension of a
commercial treaty in order to cope with a rebellion
73. Paragraph 2 is self-explanatory. This, as already belongs to a different order of ideas."
indicated in connexion with articles 10 and 14 (paras. The present Rapporteur also would query the reference
55-57 and 66-69 above), is of the essence of the type to " security " at the end of Dodson's opinion. Clearly,
of non-performance not affecting the basic continuance what was involved (it being only a civil war) was not
of the obligation, which is contemplated in this part of the security of the State as such (the international entity
the Code. and party to the treaty), but that of the Government, or
74. Paragraph 3 is the corollary of paragraph 2 (a). of a particular regime. It is therefore scarcely on this
Apart from the exception mentioned, it would seem that any right of non-performance of an otherwise
that a mere threat, that may or may not materialize, is applicable treaty can be founded. Lord McNair founds it
not a sufficient justification, and that nothing but acual on the idea of an implied condition which international
operations, or an obvious and imminent threat of them law reads into all treaties, so as to cover this kind of
("in motion" so to speak) will justify non-perfor- case (i.e., he would place the case in effect amongst
mance of the obligation on this ground. those covered by rubric (b) of the present sub-section).
It can certainly be viewed in that light; but the Rap-
75. It should perhaps be mentioned here that the case porteur feels there are grounds for giving this exception
chiefly contemplated by this article is where the other a more objective status, as an independent rule of law
party to the treaty is not itself the author of, or con- rather than as a condition implied by law (in the
cerned in, the military operations that have given rise treaty). The case is closely analogous to that of self-
to the need for non-performance. If the other party defence (article 15 above). A government is not the
should be in that position, it would then become very
74
probable that justification for non-performance would Arnold Duncan McNair, British practice and opinions
exist not merely on this but on certain of the other (Oxford, Clarendon Press, 1938).
75
grounds mentioned in the sub-section (e.g., reprisals). The King's (or Queen's) Advocate in England was a mem-
Alternatively, the case is likely to come within the ber of an institution known as " Doctors' Commons ", the mem-
bers of which were trained (and were doctors) in the civil
scope of the rules about the effect of " war " (including rather than the common law. They were usually known as " the
hostilities) on treaties—see paragraph 70 above, and civilians " or " the doctors ". Their special field was canon law,
footnote 73. succession, and maritime and international law. Doctors' Com-
mons was founded in the 16th century, and continued until it
was abolished by Act of Parliament in 1857, its functions having
then been integrated in the general legal system of the country.
Tn the preface to his International Law Opinions (Cambridge,
Article 16. Civil disturbances 1956, 3 vols.), and in his address to the Grotius Society, "The
Debt of International Law in Britain to the Civil Law and the
Civilians " {Transactions of the Grotius Society, vol. 39, 1953),
76. This article requires no detailed comment beyond Lord McNair has shown the extent of the recourse which, over
what has been furnished in connexion with article 15. several centuries, the Crown and its executive advisers had to
Doctors' Commons for advice on international law questions.
Something must be said, however, about the principle
70
involved. Little is contained in most of the authorities; McNair, op. cit., p. 236.
but the [case is] recognized in Lord McNair's work on 77
Ibid.
66 Yearbook of the International Law Commission, Vol. II

State; but, if it is the legitimate government, it from its operation, and that grain, thus already con-
represents the State and alone has the right to do so. It tracted for, shall be allowed to be exported." 80
has a right to maintain itself against unconstitutional A somewhat similar opinion regarding a prohibition on
attempts to overthrow it, and no government can govern the import of cattle, on grounds of public health, is also
without the right—and as of right—to deal with cited by Lord McNair as an illustration of the same
riots and civil disturbances. If therefore it proves un- principle. The present Rapporteur has, however, pre-
avoidable for the exercise of these rights, then treaty ferred to deal with this as a case illustrating the principle
obligations must, it is conceived, temporarily (though embodied in article 23, sub-paragraph (c) of this sub-
only temporarily) and subject, mutatis mutandis, to the section. The right to apply a country's normal
same conditions as are mentioned in article 15, take quarantine regulations, despite what might appear to be
second place. the conflicting terms of a commercial treaty, has come
to be regarded as an implied exception or condition
Article 17. Certain other emergency conditions to be read into commercial treaties as a class ; whereas
the case of emergency, due to famine conditions, seems
rather to turn on objective principles of law outside the
77. Paragraphs 1 and 2. Although, as already stated, treaty. But no doubt the distinction may be a fine one.
the Rapporteur does not consider that any general
doctrine of " necessity" can be included amongst the 79. Paragraph 3 requires no comment.
grounds justifying non-performance of a treaty obliga-
tion, it is generally considered that, in addition to the 80. Paragraph 4 is intended to emphasize the fact
cases specified in articles 15 and 16, major emergencies that, despite the circumstances, mere difficulty in the
arising from natural causes (or, in English legal termi- performance of the treaty obligation is not in itself a
nology, from " acts of God") such as storm damage, ground justifying non-performance.
earthquakes, volcanic eruptions, etc., may justify non-
performance of a treaty obligation. In some of these Article 17A. Previous non-performance by another party
cases a situation of impossibility, either permanent or
temporary, may arise, and in all of them a situation of 81. The reasons why no article dealing with this
near impossibility, actual or moral, must exist in order matter is included at this point in rubric (b) of the
to justify non-performance. Paragraph 2 is intended to present sub-section are given in paragraph 102 below
afford the necessary tests. in connexion with article 20 in rubric (c), which con-
78. This case also is considered by Lord McNair,78 tains provisions on the subject.
who quotes an opinion given by Lord Phillimore (then
Sir Robert Phillimore) as Queen's Advocate, dated Article 18. Non-performance by way of legitimate
29 August 1866, with regard to a prohibition of the reprisals
export of cereals, under famine conditions, from the (at
that time) Turkish principalities of Moldavia and 82. Paragraph 1. This article involves an issue of
Wallachia. The opinion stated : 7 9 considerable difficulty. Before discussing it, and in
" That a Treaty of Commerce, such as that between order to clear the ground, it should be mentioned that,
Her Majesty and the Sultan (signed at Kanlidja as the opening paragraph of the article states, the case
29th April, 1861), does not prevent one of the con- contemplated is not that of the application of the simple
tracting States from prohibiting, in time of famine, reciprocity condition normally to be read into all
the exportation of native produce necessary for the treaties, except such as fall within certain special cate-
sustenance of the people—is a proposition of Inter- gories,81 and by reason of which if one party fails to
national Law, which may be said to be well established carry out a treaty obligation of the "reciprocal" or
by the reason of the thing, and by the usage of States " interdependent" type,82 the other party is pro tanto
(Vattel L.2; c.12; s.179). Such a dearth appears, absolved likewise from doing so in relation to that
according to the letter of Mr. Consul Green (Bucharest party—or. at any rate, the first party will have no legal
13th August, No. 24) actually to exist in these Prin- ground of complaint if this consequence results from
cipalities, so far as the Cereals, Maize, Barley, and its own prior non-observance of the treaty. This case is
Millet are concerned; upon the first of which crops covered by article 20 of this sub-section. It can of course
the food of the people is said mainly to depend. also be regarded as a case of " reprisals ", which in a
Assuming this to be the true state of the case, I am certain sense it is. The right involved seems, however,
of opinion that it was competent to the Government to spring much less from the general international law
of these Principalities to prohibit, during the conti- principle of reprisals as such, and much more directly
nuance of this dearth, the exportation of these Cereals. from the normal requirement of reciprocity implicit in
I am further of opinion that Her Majesty's Govern- the treaty relationship, and implied by law in all treaties
ment cannot be advised to claim, as a matter of right, involving reciprocal or mutually interdependent rights
that Contracts for these Cereals made by British and obligations. Therefore, it seems best to deal with it
Merchants with Traders in the Principalities, pre- 80
viously to the issue of the order, shall be exempted Sir Robert PhilHmore went on to say that compensation
might be due in the latter class of case.
81
See paragraph 3 (e) of article 18.
82
78
Op. cit. in footnote 74. These terms are explained in article 19, and the commen-
79
tary thereto, in the Rapporteur's second (1957) report (A/CN.4/
McNair, op. cit., p. 240. 107).
 Law of treaties 67

in that way, leaving those cases that would not be national Law, but in all other cases of an international
covered by the reciprocity rule to be dealt with on a delinquency for which the injured State cannot get
basis of reprisals. reparation through negotiation or other amicable
means, be it non-compliance with treaty obligations,
83. " . . . where [the application of the reciprocity violation of the dignity of a foreign State, violation
r u l e ] . . . would not afford an adequate remedy, or would of foreign territorial supremacy, or any other inter-
be impracticable..." Action on a " reciprocity" basis nationally illegal act."
is only possible and effective in certain kinds of cases.
It applies mainly in cases where the breach of treaty is Rousseau 86 equally recognizes the right of reprisals
negative in character, i.e., involves a simple non-perfor- (subject to the same safeguards) as being specifically
mance of some requirement of the treaty. Thus, if State applicable to the case of breaches of treaty, but remits
A withholds from State B certain mutual tariff conces- the study of the matter to a later volume dealing with
sions provided for by treaty, State B can proceed (and the general subject of redress, use of force, etc. 87
it will usually suffice for it to proceed) to an equivalent Hyde 88 also admits the practice, though inclined on
withholding of the same concessions from State A. But historical grounds to confine it to cases of the taking or
many breaches of treaty are not of this kind. For withholding of foreign property by way of retaliation.
instance, if a treaty provides, inter alia, for the payment Other authorities 89 recognize the doctrine of reprisals,
of certain sums of money, as compensation, by State A while also, in certain cases, regarding it (correctly of
to State B, and A fails to pay, B may be unable to course) as a consequence of the insufficiently organized
resort to like action because no specific payments are condition of the international society. Thus Guggen-
due from it to A, either under the treaty or otherwise, heim 90 says:
so that any counter-action, to be effective, must take "Since there is no differentiation of functions in
another form. Again, if A, contrary to a treaty pro- customary international law, that is the only way in
vision, nationalizes or expropriates property of B or its which the injured party can react against the wrong
nationals in A's territory, it may be theoretically which has been done to it. Its only recourse is to
possible, but actually quite impracticable, for B to acts which, if they did not constitute a sanction—that
proceed to a like action in respect of the property of A is, if they were not the expression of a means of
or its nationals in B's territory—or perhaps there may legal protection—would have to be considered a vio-
be no such property, or only in amounts quite incom- lation of law."
mensurate with the B property existing in A territory.
In a footnote to this passage, Guggenheim adds: " Kel-
84. It is clear, therefore, that—subject to the safe- sen was the first to defend the precise theory in
guards against abuse set out in paragraphs 3 and 4 of 'Unrecht und Unrechtsfolge im Volkerrecht', Zeit-
this article—effective self-redress83 must include the schrift fiir offentliches Recht, 1932, 571/55." He con-
possibility in certain cases of resorting to action that tinues : 9 1 " Reprisals may consist of any acts having
may involve not a precisely corresponding non-perfor- per se the character of acts contrary to international
mance or infraction of the treaty in question, but a non- law, with the exception of those constituting acts of
performance or infraction of some other provision of war." By this, of course, is meant acts that would be
the treaty, or, it may be, of a different treaty.84 This illegal if they were not justified by way of reprisals for
would have to be based on the principle of reprisals and a prior illegality, and the author makes it clear that they
this is the case contemplated by the present article. can only legitimately take place subject to certain con-
85. Subject to the overriding rules of international ditions. Spiropoulos equally, after citing the same
law about the aggressive or otherwise illegal use of conditions, says : 9 2 " Although the suspension of an in-
force, there can be no doubt about the general right of ternational obligation by way of reprisal is certainly
legitimate reprisals, i.e., reprisals within the limitations contrary to law, it nevertheless does not constitute an
of such conditions as, for example, that the action taken unlawful act in itself." Hall, in discussing the measures
must have some appropriate relationship to the act or of redress "which it is permissible to take", instances
omission provoking it, and must be proportionate or com- reprisals, and in listing what they may consists in,
mensurate in its effects—or at any rate not manifestly states " . . . or, finally, in the suspension of the opera-
the contrary—and also must be limited to what is tion of treaties ".93 Similarly, Verdross 94 says :
necessary in order to obtain redress. Subject to these
conditions, reprisals are, for instance, according to 86
Op. cit. in footnote 70 above, p. 371.
Oppenheim : 8 5 87
Oppenheim also classifies the matter in this way.
" . . . admissible not only, as some writers main- SH
Charles Cheney Hyde, International Law, chiefly as inter-
tain, in case of denial or delay of justice, or other preted and applied by the United States, 2nd rev. ed. (Boston,
ill-treatment of foreign citizens prohibited by Inter- Little, Brown and Company, 1947), vol. II, pp. 1660 et seq.
89
Besides those cited or quoted from in the text, such
83
authorities as Rivier, Heffter, Wheaton, etc. may be mentioned.
Owing to the undeveloped condition of international in- 90
Paul Guggenheim, Traite de droit international public
stitutions, international law must, for the present, continue to be
(Geneva, Georg et Cie, S.A., 1953), vol. II, pp. 84, 85.
a system which, subject to the rules about the use of force, 91
admits of certain limited possibilities of what might be called Ibid., p. 86.
92
peaceful self-redress. Jean Spiropoulos, Traite theorique et pratique de droit
84
This is not of course intended to sanction gratuitous treaty- international public (Paris, Librairie generate de droit et de
breaking. jurisprudence, 1933), p. 289.
93
85
L. Oppenheim, International Law: A Treatise, vol. II, Op. cit. in footnote 24 above, p. 433.
94
8th ed., H. Lauterpacht (ed.) (London, Longmans, Green and A. Verdross, Volkerrecht (Vienna, Springer Verlag, 1950),
Co., 1955), pp. 136, 137. p. 328.
68 Yearbook of the International Law Commission, Vol. II

"By a reprisal is to be understood a derogation treaty relation existing between it and the party
from [international] law on the part of a State which committing the breach thereof, failure to exercise that
has suffered prejudice in its international law rights, right leaves the treaty binding upon all parties in
with the sole juridical object of inducing the State exactly the same manner as prior to the breach."
which has taken up this illegal position against it,
either to make reparation for the wrong done, or to It is no doubt true that, as stated in the above-quoted
cease from further prejudical acts." passage, where a right exists to elect to regard a treaty
as terminated, and this right is not exercised, the treaty
Verdross adds: 9 5 remains in force for both parties. But it does not at all
" Reprisals have been recognized since the birth of follow, as a necessary deduction from this, that one
modern international law, as a means of legal pro- party must go on observing the treaty in all respects
tection in inter-State relations." although the other party is not doing so, or is failing to
Finally, Accioly and Kelsen may be cited together in observe some particular provision of it. This would be
the following quotation from Accioly96 (Rapporteur's to ignore the fact that international law has always
translation from the Portuguese): admitted the possibility not only that a treaty itself, and
as such, may remain in force, although it is not in all
" Kelsen maintains . . . that reprisals ' are not respects being observed by one or more of the parties
illegal, in so far as they take place as a reaction —indeed the whole of this sub-section is founded on
against an illegality'. Indeed, it would seem possible that assumption—but also that the non-observance by
to attribute to such a reaction the character of legiti- one party may justify a corresponding, or (by way of
mate [self] defence—which, as is known, is expressly reprisals) a different non-observance by the other. In
admitted by the Charter [of the United Nations]. short, what the Harvard system—if it may be so called—
" The eminent Austrian master elsewhere defines as implies, is that there is no middle course, when a breach
reprisals . . . ' acts which, being normally illicit, are of treaty occurs, between complete termination of the
exceptionally permitted as the reaction of a State treaty by the injured party, or a complete and integral
against a violation of its rights by another State'." observance of the treaty obligations by that party,
despite non-observance of some or all of these by the
86. These citations from diverse authorities, both other party. This is certainly not the true position.
older and more modern, would appear to be sufficient
to establish the following propositions: 88. Nor are the authorities cited in the Harvard
(a) In certain circumstances, and subject to certain Volume in support of the above-quoted proposition very
conditions and safeguards required by international law, convincing. Several of them 98 consist of citations from
there exists, at the least, a right of what might be termed decisions of domestic tribunals, particularly in common-
"peaceful reprisals", not involving the aggressive or law countries. But analogies drawn from private law do
illegal use of force. not hold in this case, for private law has nothing corre-
(b) Such reprisals may take the form of non-obser- sponding to the international law doctrine of legitimate
vance of what would otherwise be a treaty obligation, or self-redress in certain circumstances, by way of counter-
of a breach of such an obligation. action or reprisals. Tt is no doubt true under many
systems of private law that, if a contract is broken in
(c) Such a derogation from a treaty obligation (pro- certain ways, the other party has a right to treat it as
vided it is appropriate to the circumstances and no lesser being at an end ; but that, if that party does not elect to
action will meet the case) may take place as a " reply " exercise his right, it must continue to perform its part
either to a derogation from the same obligation by the of the contract, subject to a right to seek damages or
other party to the treaty, or from another obligation of other redress in the courts for the non-performance by
that treaty or from an obligation under another treaty, the other party. International law, on the other hand,
or from a general international law obligation. has to take into account the absence in many cases of
87. At this point, it becomes necessary to consider any sure right of redress through international tribunals,
the doctrine of "election" which is not infrequently or of any sure means of securing enforcement of their
put forward, but which the Rapporteur considers—at decisions, if not carried out; and therefore, within
any rate in the present context, and in the form it limits, recognizes what is in effect a middle course,
usually takes—to be erroneous. It is stated in the namely, the legitimacy of certain measures of self-
Harvard Research Volume on Treaties as follows: 97 redress taken as a means of meeting that situation.
" . . . since the breach of a treaty by one of the 89. The Harvard Volume also cites certain inter-
parties thereto does not automatically terminate the national authorities, but these do not seem really to
treaty, it is evident that the innocent party may support the deduction that because, in certain events, a
simply elect to regard the treaty as continuining in treaty remains in force despite the fact that some obliga-
force between it and the party which committed the tion under it is not being carried out by one of the
breach. In that case, the innocent party is itself parties (and the other party has not contended that the
relieved of none of its obligations under the treaty, treaty is at an end), such other party must nevertheless
for even if it had a right to abrogate unilaterally the itself observe all the provisions of the treaty and cannot
95 resort even to a corresponding—still less to any dif-
Ibid. ferent—form of non-observance, i.e., to no via media
ftr>
Hildebrando Accioly, Tratado dc Direito International
Piiblico. Rio de Janeiro," 1956-1957, vol. 3, p. 82. The quota-
tions from Kelsen are given as coming from his Principles of m
International Law, pp. 23 and 24. See op. cit., pp. 1078 and 1079.
97
Op. cit. in footnote 15, p. 1078. »» See op. cit., p. 1079.
 Law of treaties 69

between termination and integral observance. There is, matter with reference to the question of treaty termina-
for instance, a reference to Oppenheim ; but the passage tion, and largely on the basis of what kind of breach by
referred to 10° merely says that " Violation of a treaty one party will justify the other in denouncing the
by one of the contracting States does not ipso facto treaty ; this is, of course, quite a different question.
cancel the treaty; but it is within the discretion of the
other party to cancel it on this ground." 101 This is true 91. For all these reasons, the present Rapporteur
(subject to the requirement that the discretion exists feels that, while the view put forward in the Harvard
only if the breach is a fundamental one—see foot- Volume is not implausible,105 it is, in fact, not correct as
note 101, below), but it in no way supports the further a matter of international law, and is derived largely from
proposition that, if the other party elects not to exercise private law doctrines that have no application in the
this discretion, it has no other means of redress for the international field. He considers the correct position on
breach except a (possibly or, at any rate, probably) this particular matter to be as stated in article 18 of the
non-existent faculty of bringing the matter before an present draft under discussion, and also in article 20,
international tribunal. Lord McNair is also cited by the discussed below, to which much of the argument equally
Harvard Volume, in respect of a statement contained applies. No doubt, as regards the propriety of counter-
in his course delivered (in French) at The Hague Aca- action by way of reprisals, a good deal turns on the
demy of International Law in 1933. 102 But again, the exact moment at which it is permissible to take such
relevant passage does not support the Harvard deduc- action. No one would suggest that the right arises imme-
tion. It reads: 1 0 3 diately and before any attempt at settlement has been
made. This is the reason for the inclusion in article 18
"Violation of a treaty by one of the contracting of such provisions as sub-paragraphs (c) and (/) of
States does not ipso facto cancel the treaty, but at the paragraph 3.
most, allows the other party to opt in favour of its
cancellation (All violations are not, of course, serious 92. Paragraph 2 of article 18. This is amply sup-
enough to justify such action . . . ) . " ported by the authorities cited earlier.
In this passage, the phrase " at the most" would seem 93. Paragraph 3, sub-paragraph (a). This merely
to refer to the fate of the treaty as a whole, i.e., it means repeats, ex abundanti cautela, the qualification already
that in respect of termination, the most that exists is a mentioned in paragraph 1.
faculty of abrogation for the injured party, not an auto-
matic abrogation ipso facto, if a breach occurs. Again, it 94. Paragraph 3, sub-paragraphs (b), (c) and (d).
does not in any way follow that because this faculty is These state conditions which, as general safeguards, it is
not exercised in a particular case (assuming that the believed that international law normally attaches to the
breach were sufficiently fundamental to justify that), exercise of reprisals in any circumstances.
and the treaty consequently subsists, the injured party 95. Paragraph 3, sub-paragraph (e). It follows auto-
has no other or lesser rights, i.e., of counter-action by matically from the nature of the class of treaties
way of a corresponding, or of some different non-obser-
vance. Moreover, in those cases—which are the ones 105
principally contemplated by the present sub-section— An argument might be advanced as follows. It might be
said that three cases must be distinguished :
where the breach by the other party is not sufficiently Case 1. One of the parties to the treaty purports illegally to
fundamental to give rise to a faculty of termination for repudiate or put an end to it. In those circumstances, the other
the other party at all, so that no such faculty exists, party may elect either to accept the repudiation or termination,
there can be no doubt about the right of corresponding subject to its right to seek redress or reparation for the illegality
or other non-observance under the conditions laid down involved, or to decline to accept the repudiation or termination
as being illegal and null, but, in that case, must continue to
in these articles. It may well be that, as a matter of regard the treaty as remaining in full force. If so, however, that
policy, a State which wishes to preserve the existence of party has voluntarily and designedly waived its right to accept
a treaty, despite infractions by the other party, would termination, and must therefore continue itself to carry out the
deem it expedient not to avail itself of its right of treaty, although, of course, it will retain its right to seek redress
or reparation for the non-performance by the other party.
retaliation or counteraction; but that, of course, is Case 2. One party, without actually repudiating or purporting
another matter. to terminate the treaty, commits a fundamental breach of it of
a kind which, in accordance with the principles stated in the
90. Crandall 104 also is cited in the Harvard Volume ; Rapporteur's second (1957) report, articles 18-20, will justify
but here again the position is that Crandall discusses the the other party in regarding the treaty as terminated, or in
bringing it to an end. Here again, such other party has a right
of election. If it does not elect to terminate the treaty, then it
100
In the 4th edition ; it is also reproduced verbatim in the is bound itself to continue to observe the treaty while seeking
8th (Lauterpacht) edition, vol. 1, p. 947. redress or reparation for the non-performance by the other
101 party.
Earlier editions of Oppenheim took the view that to con-
Even if, however, it were accepted in the above cases that
fer this faculty, the breach need not even be a fundamental one.
there is no middle course between absolute termination and
In a footnote to the 4th edition, Lord McNair, as editor, queried
absolute observance, the argument could not cover case 3.
the correctness of this view, which is in effect abandoned in
the 8th (Lauterpacht) edition—see footnote 4 on p. 947 of Case 3. This is the case contemplated by articles 18 and 20,
vol. 1. See also the Rapporteur's second (1957) report (A/CN.4/ i.e., where one party neither repudiates the treaty nor commits
107), articles 18-20 and commentary thereto. such a fundamental breach of it as would justify the other party
in bringing it to an end, but simply commits a breach of the
102
" L'application et Interpretation des traites d'apres la treaty. In that case, the other party, not having a right to ter-
jurisprudence britannique ", Recueil des cours, 1933, I. minate it simply on the basis of that breach, has no direct
103 remedy except to have recourse to a corresponding non-perfor-
See op cit., p. 282.
mance or, if that is insufficient, then, by way of reprisals, to a
101
Crandall, Treaties, their Making and Enforcement, 2nd ed., non-performance of some other obligation of that treaty, or of
1916, pp. 456, 462 et seq. another treaty between it and the same party.
70 Yearbook of the International Law Commission, Vol. II

referred to in this paragraph that no violation of such a the obligation, not to justification for its non-perfor-
treaty will justify non-observance by another party. mance, and this is a matter governed by the general
Still less would a party to such a treaty be justified in rules relating to the interpretation of treaties to be con-
any non-observance of it by way of counter-action tained in chapter 3 of the present Code.
to the violation by another party to it of some other
treaty, or of a general rule of international law. There is 101. Paragraph 3. The point of this paragraph may
no room for "reprisals" in connexion with such be seen by contrasting the ensuing articles 20 to 22,
treaties. inclusive, with article 23.

96. Paragraph 3, sub-paragraph (f). Because of the

difficulties that may arise in the application of this Article 20. Conditions implied in the case of all treaties:
article and the uncertainties that may exist as to whether, condition of reciprocity or continued performance by
on the grounds stated, a right of non-observance has the other party or parties
accrued, it is considered that it should only be possible
to invoke this ground of non-observance subject to the 102. As is so often the case with regard to the law
safeguards involved by following the appropriate proce- of treaties, it is possible to classify a given rule under
dures set out in article 39. The general reasons for this more than one head. It is possible to take the view that
are of a very similar order as those which led the Rap- (apart from treaty or other international obligations
porteur to think that safeguards and procedures of this in the nature of jus cogens, release from which cannot
character must be followed where it is a question of result from any mere non-performances by another
invoking the principle of rebus sic stantibus, or that of State) there is a general international law rule of reci-
fundamental breach, as grounds for regarding a treaty procity entailing that the failure of one State to perform
as terminated (see second (1957) report, A/CN.4/107). its international obligations in a particular respect, will
either entitle other States to proceed to a corresponding
97. Paragraph 4. This states a general rule of inter- non-performance in relation to that State, or will at any
national law invariably considered as governing the rate disentitle that State from objecting to such corre-
character of the reprisals that may legitimately be sponding non-performance. On the basis of this general
resorted to. Tt is also intended to subordinate the whole principle, applied to treaties, the case dealt with by the
process to general international law. Reprisals taking present article 20 could figure as an article in rubric
the form of the non-observance of a treaty obligation (b) above, in the space provided for article 17A. On
are, after all, only one kind of reprisal, and not gene- the other hand, it is possible, and it is probably more
rically different in their legal characteristics from other
appropriate, to regard the requirement of reciprocity in
kinds.
the light of a condition which is inevitably to be
98. Paragraph 5. This states the rule normally implied, and is by law to be read into all treaties of the
applicable in cases coming under the present sub- " reciprocal " or " interdependent " types (see para. 82
section (see paragraphs 55, 56 and 67, above). above), i.e.—all treaties other than those of the
absolute or self-existent kind, already referred to in
article 18, paragraph 3 (e) above and paragraph 95 of
RUBRIC (c). NON-PERFORMANCE JUSTIFIED ab itltra BY VIRTUE OF A the present commentary. It is upon this view of the
CONDITION OF THE TREATY IMPLIED IN IT BY INTERNATIONAL LAW matter that the present article 20 is based (see further
comment in para. 82 above).
Article 19. Scope of the present rubric
103. Hall, in discussing the difficult case which has
already been considered in the commentary to article 18
99. Paragraphs 1 and 2. This rubric deals with the (see paras. 82-91 above, much of which is applicable
case of non-performance justified not by a general rule here also), clearly implies that whether the breach of
of international law wholly outside the treaty, but by a the treaty affords ground for regarding it as wholly
condition which, though not actually written into the terminated or not, non-performance of a particular obli-
treaty or to be implied from its terms, is nevertheless to gation will on the basis of an implied condition of reci-
be read into it by virtue of a rule of international law. procity normally justify a corresponding non-perfor-
With this comment, paragraph 1 is self-explanatory. mance by the other party. Hall, under the rubric
Where conditions are written into a treaty, or arise as a " Implied Conditions under which a Treaty is made ",
clear implication from its actual terms, the matter is says that it is "obviously an implied condition of the
one simply of the interpretation of the treaty, and does obligatory force of every international contract that it
not call for the application of any external rules. shall be observed by both of the parties to it." 106
100. Another way of putting the point would be to He then goes on to discuss the subject of fundamental
say that it is implicit in the type of case treated of in breaches giving rise to a right to terminate the treaty,
the present rubric that, on the face of it, the treaty and finally considers the case of lesser infractions that
concerned creates a specific obligation, so that the would not normally have that result. In discussing this
question is whether international law implies a condition latter case, Hall says 107 that " it would be seldom that
justifying the non-performance of that obligation in the infraction of an article which is either disconnected
certain circumstances. Since the very issue of whether from the main object, or is unimportant... could in
non-performance is justified is one that assumes the fairness absolve the other party from performance of
existence of a prima facie or apparent obligation under
the treaty, conditions expressed in or implied by the 106
Op. cit. in footnote 24 above.
language of the treaty itself, relate to the existence of 107
Ibid., p. 409.
 Law of treaties 71

his share of the rest of the agreement..." (italics The Court also said 110
added). The words italicized clearly imply that even if "The case envisaged in the Treaties is exclusively
no case exists for the non-performance of the treaty as that of the failure of the parties to agree upon the
a whole or for regarding it as terminated, there is a case selection of a third member and by no means the
for the non-performance by the other party or parties much more serious case of a complete refusal of co-
of the particular provision which has been the subject operation by one of them, taking the form of
of the infraction. To these considerations may be added refusing to appoint its own Commissioner. The
almost the whole of the argument given in relation to power conferred upon the Secretary-General to help
article 18 in paragraphs 82-91, on the basis that the the parties out of the difficulty of agreeing upon a
greater, wider or more drastic right must include the third member cannot be extended to the situation
lesser. which now exists."
104. Paragraph 2. This requires no explanation. A The Court did however indicate that in other circum-
similar provision might perhaps have been added to stances the position might be different: m
article 18, but it would seem otiose to do so, since it " . . . the Secretary-General would be authorized to
must be clear that anything in the nature of reprisals proceed to the appointment of a third member [only]
can only be directed against the particular party if it were possible to constitute a Commission in con-
culpable. formity with the provisions of the Treaties."
105. Paragraph 3. This paragraph has been included In short, the matter is one for the interpretation of the
because of the advisory opinion given by the Inter- particular treaty, and paragraph 3 of article 20 has been
national Court of Justice in the second phase of the drafted accordingly; but it seemed desirable to make
Peace Treaties case.108 Certain treaties contained a pro- some reference to the matter, in view of this important
vision for the settlement of disputes, according to which, pronouncement by the Court on what is a not un-
if a dispute arose, each party was to appoint a member common type of case.
of a three-member Arbitral Commission, and the parties
were to agree on the third member. If, however, they
failed to do so within a month, either party could ask Article 21. Conditions implied in the case of all treaties :
the Secretary-General of the United Nations to appoint condition of continued compatibility with interna-
the third member. It was not stated—nor probably tional law
could it have been—that the Secretary-General was
bound to comply with the request. In the actual cases 106. Paragraph 1. The object of this paragraph is to
which were the subject of the request for an advisory bring out the difference between the case where in-
opinion, not only had the parties not agreed on the compatibility with a rule or prohibition of general in-
third member of the Commission, but one of them ternational law in the nature of jus cogens affects the
denied there was a dispute, and refused to appoint its treaty at its very inception, thus rendering it lacking in
arbitrator or to co-operate in any way in the treaty essential validity in accordance with the articles of the
procedure for the settlement of disputes. In these cir- Code referred to in this paragraph. 112 That is not the
cumstances, the question arose whether the other party, case dealt with here, which assumes the original validity
if it had appointed its arbitrator, and if the time limit of the treaty, and deals with the question of justification
specified by the Treaty had expired, could call upon for non-performance of some obligation of the treaty by
the Secretary-General to appoint the "third" member reason of a rule of international law which has gained
of the Commission; and whether in that case, and if general acceptance subsequent to the treaty, and which
the appointment was made, the resulting ftvo-member is incompatible with the performance of the obligation.
Commission would be validly constituted under the
107. Paragraph 2. Since the conditions governing non-
Treaty, and could proceed to hear the case and render a
performance of a treaty obligation on the grounds con-
legally binding decision. The Court answered these
templated by this article are broadly the same as those
questions in the negative, on the ground that, however which will justify regarding a treaty as being wholly
much one party might be (and was) in breach of the terminated, it will be sufficient for the present to refer
Treaty by refusing its co-operation in setting up the to the commentary to case (vi) in article 17 of part III
treaty tribunal, this situation could not, in the given of chapter 1 of the Code.113
case, be met by proceeding without it, since this would
result in setting up a tribunal that was not the one 108. Paragraph 3. It is necessary to cover not only
contemplated by the treaty. In its opinion (three of the the case where, after the conclusion of the treaty, a new
Peace Treaties were involved in the case), the Court incompatible rule of international law in the nature of
said that jus cogens, with which the treaty is in conflict, receives
general acceptance, but also the case where circum-
"The breach of a treaty obligation cannot be stances not present at the time of the conclusion of the
remedied by creating a Commission which is not
the kind of Commission contemplated by the 110
Ibid., p. 227.
Treaties." 109 111
Ibid., p. 228.
112
See Rapporteur's third (1958) report (A/CN.4/115),
articles 21 and 22 and relevant commentary.
™* l.CJ. Reports 1950, p. 65. 113
109
See paras. 104 and 105 of the commentary in the Rap-
Ibid., p. 229. porteur's second (1957) report (A/CN.4/107).
72 Yearbook of the International Law Commission, Vol. II

treaty have arisen subsequently, and have brought into concerned, considered as an international treaty. This
play an existing rule of international law of this kind, subject has already been dealt with in article 8 of
which was not relevant to the circumstances as they part II of chapter 1 of the Code, and a commentary on
were when the treaty entered into force. An obvious it will be found in paragraphs 19 to 30 of the Rappor-
example of this type of case is that of a treaty con- teur's third (1958) report. The present article 22 deals
cluded in time of peace, and primarily applicable under with the case that arises where no such incapacity existed
peace-time conditions, in the event of a war arising at the time when the treaty was made, but there has been
either between one of the parties and a third State, or a change in the status of one of the parties subse-
between two third States, giving rise to circumstances quently.
in which questions of the law of neutrality may become
material for one or other of the parties, in relation to 111. Paragraph 2. This refers to the case where the
the execution of the treaty. Some illustrations of this subsequent change of status involves a total loss of its
are given by Lord McNair in his work on The Law of previous identity on the part of the party concerned.
Treaties based on the opinions of the Law Officers of This, subject to the rules of State succession, will nor-
the British Crown. Thus, in an opinion dated 17 August mally lead to the termination of the whole treaty (if it
1885, 114 the Law Officers approved of instructions being is a bilateral treaty) or to the participation of that party
sent to the British Ambassador in Japan to the effect in it (if it is a multilateral one). This case has already
that a certain treaty between Great Britain and Japan been considered as case (i) in article 17 of part III of
"must be read subject to the obligations of inter- chapter 1, and is commented on in paragraph 95 of the
national law in time of war, and that Great Britain Rapporteur's second (1957) report.
could not claim, under the treaty, to commit any act
which would involve Japan in a breach of neutrality...". 112. Paragraph 3. This deals with the case to which
Instructions were sent accordingly. The point at issue the present article 22 is really intended to relate, namely
was the right which Great Britain might otherwise have where there has been a supervening change of status
been able to claim under the treaty to use certain naval —not, however, being such as to involve a complete loss
yards and hospitals in Japan in the event of a war in or change of identity for the party concerned. Prima
which Great Britain might be involved, Japan being facie, this will not in itself entail any diminution of the
neutral. Again, in an earlier report dated 23 August treaty obligation, or afford a ground for its non-perfor-
1870, given by the Queen's Advocate 115 (Mr. Travers mance. Where, however, as the result of the change, a
Twiss, afterwards Sir Travers Twiss), the opinion was situation arises in which the performance of the treaty
expressed that the International Telegraphic Conven- obligation is no longer dependent on the sole will of
tions of 1865 and 1868 must, as between a belligerent the party concerned, that party must, considered as such,
and a neutral State, be construed as being subject to the be regarded as absolved from futher performance.
duties imposed by general international law upon Hall 118 states the principle involved as follows :
neutral States. The Queen's Advocate observed 116 that
" It is also an implied condition of the continuing
" A s a war between France and Prussia would obligation of a treaty that the parties to it shall keep
impose upon the other contracting parties super- their freedom of will with respect to its subject-
vening duties incidental to a state of neutrality, they matter except in so far as the treaty is itself a restraint
[i.e. the contracting parties] must..., in the absence upon liberty, and the condition is one which holds
of express words to the contrary, be taken [sc. only] good even when such freedom of will is voluntarily
to have become parties to the treaty subject to their given up. If a State becomes subordinated to another
obligation of fulfilling those duties." State, or enters a confederation of which the con-
109. Paragraph 4. The significance of this paragraph stitution is inconsistent with liberty of action as to
depends upon the distinction between jus cogens and matters touched by the treaty, it is not bound to
jus dispositivum. This matter has already been suffi- endeavour to carry out a previous agreement in
ciently gone into in relation to the subject of the defiance of the duties consequent upon its newly-
essential validity of treaties.117 formed relations."

However, although in accordance with what has just

Article 22. Conditions implied in the case of all treaties : been said a change of status on the part of one of the
condition of unchanged status of the parties original parties to the treaty may take out of the hands
of that party the capacity to ensure the performance of
110. Paragraph 1. This paragraph is intended to bring the treaty, and thereby absolve it from performance, it
out the distinction between the case of a lack of treaty- does not follow that the obligation will wholly lapse.
making capacity existing in one or more of the parties Thus, to take the cases cited by Hall, where one State
at the time when the "treaty" is concluded, thus comes under the protection of another, the rules of
entailing lack of essential validity for the instrument State succession may oblige the Protecting Power to
take over the responsibility for carrying out the treaty
obligation. It may be the same if a State becomes part
111
McNair, op. cit. in footnote 74 above. of a federal union, and also in other circumstances. This,
115 however, is a matter of the law of State succession, and
See explanation given in footnote 75 above.
116
therefore not further discussed here.
McNair, op. cit., p. 247.
117
See the Rapporteur's third (1958) report (A/CN.4/115),
118
para. 75 of the commentary. Op. cit. in footnote 24 above.
 Law of treaties 73

Article 23. Conditions implied in the case of particular which, on the face of them, confer national treatment
classes of treaties upon foreigners in the matter of access to the country
concerned, to carry on trade and commerce there, etc.
113. Paragraph 1. The conditions considered in the These claims, read literally, might appear to confer
immediately preceding articles can fairly be regarded something like absolute rights in the matter. Such
as being implied by international law in the case of all treaties have, however, never been read as prejudicing
treaties. There are, however, a number of conditions the right of the local authorities of a country to prohibit
which international law implies according to circum- entry to individual persons on grounds personal to
stances, in the case of particular classes of treaties. themselves, or in pursuance of a general and non-discri-
minatory policy concerning immigration or the taking
114. Paragraph 2. It is not possible at present to deal of employment. It is true that in some of the more
exhaustively with this matter, partly because it depends modern commercial treaties the previous apparently
on the development of treaty practice and procedure absolute right tends to be specifically qualified by
and is therefore not static, and partly for reasons which certain phrases. For instance, the subjects or citizens of
are given in a footnote to the article itself. The present the contracting parties are only to have rights of access
paragraph 2 of the article, however, instances a certain etc. on the basis of national treatment "upon con-
number of prominent examples of this class of case. forming themselves to the laws and regulations
applicable generally to nationals ". Such phrases do not
115. Sub-paragraph (a). The question of an implied always appear in earlier treaties. They have nevertheless
exception on grounds of ordre public in treaties relating clearly been regarded as implied, and their subsequent
to private international law topics came up for con- appearance in later treaties must probably be regarded
sideration recently before the International Court of as declaratory of an existing position, rather than as
Justice in the Guardianship of Infants case (Holland v. creating anything new. In the same way, the right of
Sweden).119 The Court, however, decided the case on deportation has never been regarded as affected by these
another point, and while referring to the question of clauses.
ordre public, did not consider it necessary to pronounce
upon it. On the other hand, some of the judges de- 117. Sub-paragraph (c). Very similar considerations
livering separate opinions,120 laid great stress on the apply here too, except that what is normally involved
recognized existence of this exception as an implied in the case of imports and exports of goods is not
condition of treaties dealing with questions of private national but most-favoured-nation treatment. Never-
international law and conflicts of laws. These opinions theless, the general right to trade conferred by many
appear to the Rapporteur to be sufficiently cogent to commercial treaties has never been regarded as preju-
warrant the inclusion of this exception in the present dicing the right of the local authorities to prohibit alto-
article, though of course only for this class of treaty. gether traffic in certain categories of goods or articles,
or in certain particular circumstances as indicated in
116. Sub-paragraph (b). It is well known that, the article. Again, it is true that in many of the later
according to the common form of commercial treaties, treaties specific clauses are included referring to such a
articles of a very wide general character are included right of prohibition in terms; but as before, the effect
of such provisions appears to be little more than declara-
119
tory. Lord McNair instances an opinion given by the
I.C.J. Reports 1958, p. 55. English Law Officers of the Crown dated 18 March
120
In particular Judges Badawi, Lauterpacht, and Moreno 1867, 121 in which the Law Officers considered the effect
Quintana. The following passage from Sir Hersch Lauterpacht's of an Anglo-Italian Commercial Treaty containing " the
opinion is quoted as giving the most comprehensive and force-
ful statement of the principle (Report, pp. 91, 92): usual reciprocity clauses with respect to the free im-
" In the first instance, the Convention now before the Court
portation to any country of produce of one of the con-
is a Convention of public international law in the sphere of tracting parties into the country of the other". The
what is generally described as private international law. This question was whether this prevented the United King-
means: (a) that it must be interpreted, like any other treaty, dom authorities from prohibiting the import of cattle
in the light of the principles governing the interpretation of
treaties in the field of public international law ; (/>) that that on health grounds (e.g. suspected foot and mouth
interpretation must take into account the special conditions disease). The Law Officers said that in their view " n o
and circumstances of the subject-matter of the treaty, which clauses of this description can be rightly considered as
in the present case is a treaty in the sphere of private inter- restraining the power of the Government to prohibit,
national law.
when exceptional circumstances, as the present, exist,
" Secondly, in the sphere of private international law the and for the sake of public health and well-being of the
exception of ordre public, of public policy, as a reason for
the exclusion of foreign law in a particular case is generally country, the importation of foreign cattle." That the
—or, rather, universally—recognized. It is recognized in Law Officers were not, however, postulating any general
various forms, with various degrees of emphasis, and, occa- principle of so-called " necessity" as a ground justi-
sionally, with substantial differences in the manner of its fying non-performance is clear from the following
application. Thus, in some matters, such as recognition of
title to property acquired abroad, the courts of some countries sentence: " It is a maxim of international law that
are more reluctant than others to permit their conception of cases of this kind are always considered as tacit and
ordre public—their public policy—to interfere with title thus necessary exceptions from the treaty." In short, a condi-
created. However, restraint in some directions is often offset tion covering this type of case is to be regarded as
by procedural or substantive rules in other spheres. On the
whole, the result is the same in most countries—so much so implied in commercial treaties.
that the recognition of the part of ordre public must be
regarded as a general principle of law in the field of private
international law." 121
Op. cit. in footnote 74 above.
74 Yearbook of the International Law Commission, Vol. II

118. Sub-paragraph (d). This deals with an implied chapter 1 of the Code.126 But a treaty can of course
term which has always, and in the nature of the case, perfectly well provide that, although it does not come
been regarded as a condition of treaties of guarantee, into force until a certain date, it shall nevertheless,
and it needs no special comment. when it does come into force, be deemed to relate back
in certain ways to events that have already occurred.
Where a treaty has retroactive effect in this sense, the
SECTION 2. PARTICULAR QUESTIONS OF TREATY obligation to apply it, or any particular provision of it
APPLICATION retroactively, can nevertheless not exist before a certain
date, namely the date of the coming into force of the
SUB-SECTION I. TEMPORAL AND TERRITORIAL treat; but that fact does not prevent the obligation that
APPLICATION OF TREATIES has to be applied retroactively, arising when this date is
reached—on the contrary, it causes it to do so. It is clear
RUBRIC (a). TEMPORAL APPLICATION that only express terms or an absolutely necessary in-
ference can produce such a result. The presumption
Article 24. Beginning and duration of the treaty must always be against retroactivity.
obligation
RUBRIC (b). TERRITORIAL APPLICATION
119. Paragraphs 1-3. These provisions are of a
routine character, but nevertheless require to be included
in a complete Code. They relate to the exact moment at Article 25. General principles
which the treaty obligation begins and that at which it 123. Paragraph 1. Questions of the territorial appli-
ends. The references to other parts of the Code are to cation of a treaty do not normally arise in those cases
those provisions which determine the coming into force where the whole process of the operation and execution
and the termination of any treaty.122 of the treaty can be carried out exclusively through
120. Paragraph 2. In the case of multilateral treaties, the action of the central metropolitan Government
as has already been seen from article 41, paragraph 4, of the State concerned, and in this category figure
in part 1 of chapter 1 of the Code, 123 the coming into especially the classes of treaties mentioned in this para-
force of a treaty, as such, only creates obligations for graph, such as treaties of alliance, peace and friendship,
those States which at that date have taken the necessary recognition, institution of diplomatic relations, and so
steps, whether by signature, ratification or accession, to forth.
indicate their participation in it. For other parties, their
124. Paragraph 2. This reflects the obvious principle
obligation will arise subsequently, as and when they
that the question of territorial application is governed
deposit their instruments of ratification or accession.
primarily by the terms of the treaty itself, in all cases
121. Paragraph 4. The principle embodied in this where the treaty, expressly or by implication, makes
paragraph was recognized by the International Court of provision as to its territorial application.
Justice in the first phase of the Ambatielos case, when 125. Paragraph 3. Where the treaty is silent, or no
the Court rejected a certain argument on the ground clear implication can be drawn from it (or unless,
that it " . . . would mean giving retroactive effect to though not silent, its application is specifically confined
Article 29 of the Treaty of 1926, whereas Article 32 of to a certain particular part or to parts of the territories
this Treaty states that the Treaty, which must mean all —or to certain territories only—of the contracting
the provisions of the treaty, comes into force... upon parties), then the remaining provisions of this rubric
ratification." 124 will be applicable.
122. " Unless a treaty specifically so provides, or a
necessary implication to that effect is to be drawn from Article 26. Application to metropolitan territory
its terms... ". This exception to the rule of non-retro-
activity was again recognized by the International Court 126. Paragraph 1. There can never be any doubt that,
in the same case, when it said 125 that the conclusion unless a treaty otherwise specifically provides, it must
that a given article of the relevant treaty was not retro- apply automatically at least to the whole of the metro-
active " . . . might have been rebutted if there had been politan territory of any contracting party.
any special clause or any special object necessitating 127. " . . . o r to all territories forming part of the
retroactive interpretation." There is some danger of con- metropolitan territory of each contracting party ". These
fusion about the subject of the retroactivity of treaties. words have been inserted because in the case of certain
In a certain sense, a treaty, whatever it may say, can States, the whole of their metropolitan territory or
never be retroactive, because it can never come into territories is not necessarily situated within the confines
force previous to the date provided for according to its of a single frontier, and these territories may either be
terms, or in default of clear terms on the subject, separated from each other by intervening territory of
according to the principles already set out in part I of another State, or may be situated overseas.
122 128. Paragraph 2. This attempts to supply a defini-
Rapporteur's first (1956) and second (1957) reports
(A/CN.4/101 and A/CN.4/107, respectively). tion of the term "metropolitan territory", and is
123 intended to establish what prima facie distinguishes a
First (1956) report.
124
metropolitan from a dependent territory.
I.C.J. Reports 1952, p. 40.
126
™ Ibid. See footnotes 122 and 123.
 Law of treaties 75

129. "Subject to the provisions of paragraph 3 . . . ". seems to him preferable to retain the basic rule as for-
These words are inserted because it is necessary to deal mulated in paragraph 2 of this article, but to create
specially with the case of federal unions and federations. exceptions to it in favour of those cases where it is
This case forms the subject of paragraph 3. Under all obvious that the constitutional position with reference
federal constitutions, the constituent states, parts or pro- to a dependent territory does not permit of any auto-
vinces of the union or federation possess at least some matic application of a treaty to it without its consent, or
degree of local autonomy ; while in some cases, or at without the completion of various formalities of such a
any rate in theory, they may have complete local auto- kind that they are primarily a matter for the local in-
nomy in all matters not of necessity common to the stitutions of the dependent territory concerned.
union or federation as a whole and as a unit, such as
defence and the conduct of foreign relations. Never- 135. Paragraph 3. In this paragraph, the exceptions
theless, there can be no doubt that the constituent parts just referred to are set out. In the cases covered by sub-
of a federal union or federation do form part of its paragraphs (a) and (b), it is clear that the government
metropolitan territory. of the metropolitan territory of the State which is a
party to the treaty has no constitutional power to
130. It naturally results from the words "Unless a enforce either the acceptance or the observance of the
treaty otherwise provides..." in paragraph 1 of this treaty by the dependent territory. In such circum-
article, that it in no way prevents the insertion of the stances, participation in the treaty by that State
so-called " federal clause" in treaties, where there is cannot of itself entail its application to the dependent
agreement to do this. territory.
136. Sub-paragraph (c). This contemplates the not
Article 27. Application to dependent territories uncommon situation where, although the dependent
territory is not fully self-governing internally even in
131. Paragraph 7. If a satisfactory definition of a the field covered by the treaty, the constitutional
metropolitan territory can be established, then, in relationship between it and the metropolitan govern-
principle, it would be sufficient to define a dependent ment is such that the active co-operation of the local
territory as any territory which was not by definition a authorities and of the local institutions would be neces-
metropolitan territory. sary for the execution of the treaty in that territory, and
would be materially impossible without it; or where,
132. Paragraph 2. This states the basic rule that, in according to those constitutional relationships, treaties
principle, and unless otherwise provided expressly or entered into by the metropolitan government are not to
by clear implication, a treaty extends automatically to be applied to the dependent territory without at least
all the dependent territories of any contracting party. prior consultation with it. Here equally, it would be
difficult, and would indeed be contrary to the rights of
133. "Subject to the provisions of paragraph 3 . . . ".
the dependent territories themselves, if participation in
The basic rule as thus stated was, however, instituted at
the treaty by the metropolitan government were held
a time (and primarily in relation to a state of affairs)
automatically to entail its application to the dependent
when many or most dependent territories were more or
territory.
less wholly dependent, and lacking in any form of self-
government or autonomous local institutions. This situa- 137. Paragraph 4. This is intended to bring out the
tion is under modern conditions becoming increasingly point that the determining factor involved in the cases
rare, if indeed it is not near to disappearing. It is dealt with by paragraph 3 of the article is that of the
probably true to say that only a small number of the normal constitutional position existing in relation to the
dependent territories still existing in the world are in dependent territories concerned, or existing as between
this position, and they are progressively becoming them and the metropolitan government; and not the
fewer. This has led certain authorities, such as Rousseau, possibility that the metropolitan government may, in
to propound a rule completely reversing the basic rule the last resort, possess legal or physical powers of
set out in paragraph 2 of the present article. He formu- coercion which would enable it to compel the depen-
lates the rule as follows : 1 2 7 dent territory to carry out the treaty. Such powers may
" Except in cases where a treaty, in view of its indeed in a number of cases exist or be held in reserve,
purpose, deals exclusively with colonies, treaties con- but they are not intended to be used except under speci-
cluded by a State do not extend automatically to its fically defined circumstances or, most exceptionally, in
colonies." case of emergency. They are certainly not intended to
be used for the purpose of enforcing the application of
According to this view, therefore, a treaty would never a treaty to a dependent territory in circumstances other
apply to dependent territories unless it either related or contrary to those contemplated by the constitutional
specifically to certain territories in this class or else, as position respecting that territory ; 1 2 8 and a metropolitan
Rousseau goes on to make clear, unless the treaty itself government ought not to be placed in a position in
provided in terms for its application to the dependent which it must either decline altogether itself to parti-
territories of the contracting parties. cipate in the treaty, or else, in the last resort, employ
134. The Rapporteur, while in general agreement measures of coercion to enforce the acceptance and
with the view propounded by Rousseau, does not think
it necessary or desirable to make it so categorical. It 128
Especially where, as will frequently be the case in this
context, this constitutional position is part of a planned develop-
127
Rousseau, op. cit. in footnote 70 above. ment towards self-government or complete independence.
76 Yearbook of the International Law Commission, Vol. II

application of the treaty by what may be constitu- SUB-SECTION 11. EFFECT OF THE TREATY
tionally highly developed dependent territories which ON THE INTERNAL PLANE
do not wish to accept the treaty, or to whose local
interests such acceptance would be contrary. RUBRIC (a). EFFECT OF TREATIES ON AND RESPECTING
THE INSTITUTIONS OF THE STATE

Article 29. Relevance of the domestic aspects of treaty

Article 28. Determination of the status of metropolitan application
and dependent territories
142. Neither this article nor anything in this sub-
section is intended to raise philosophical issues as to the
138. Paragraph 1. This article has been included manner in which a treaty produces its effects on the
because difficulty often arises over the question of who domestic plane, i.e. whether directly or only through
has the right in the last resort to determine whether a the intermediary of the local law and constitution. For
given territory is a metropolitan or a dependent terri- reasons to be explained in connexion with a later article,
tory. An attempt to define a metropolitan territory and it is considered that, from the purely practical point of
hence inferentially a dependent territory, has been made view, this question has little importance. The article
in articles 26 and 27. Subject to that, the question contents itself with propounding the incontrovertible
must be one that depends on the interpretation of the fact that a treaty produces its effects primarily in the
relevant constitutional provisions and international international field, in which it is the duty of the parties
instruments. to carry it out, and that the question of its effects in the
domestic field is only relevant because that question
139. Paragraph 2. The opening words of this para- may, in practice, affect the capacity (though not the
graph "Subject to any relevant treaty provisions, and legal obligation) of the parties to discharge that duty.
to any international right of recourse that may exist...",
are intended to indicate that such determination may,
in the last resort, not be exclusively a matter for the Article 30. Duties of States in relation to their laws
metropolitan government to carry out, in a final and and constitutions
conclusive way. Subject to that, however, it seems that
the determination must and indeed can only be made in 143. This and the next succeeding article both
the first instance by the metropolitan government. This represent little more than a " spelling out" on the
is indicated by sub-paragraph (a). The point dealt with domestic plane of certain of the general principles
in sub-paragraph (b) is a connected but separate one. already dealt with in earlier parts of the present report,
It is not a question of determining the status of a given and reference may be made to paragraphs 32 to 48
territory, whether metropolitan or dependent, but of above. Jt is particularly important to bear in mind that
determining what is actually covered administratively however much, on the domestic plane, the administra-
or geographically by the territory concerned—in short, tion, the legislature and the judiciary may be separate
what arc its boundaries, whether certain adjacent pieces entities, and however much on that plane they may
of territory, enclaves or islands off its coasts, are include perhaps be in conflict with one another and similarly
in it, etc. not amenable to control one by the other, nevertheless,
from the international point of view, the State is one
140. Paragraph 3. It seems desirable to include a pro- single indivisible entity. If a treaty becomes binding
vision on these lines. States cannot, subsequent to the upon the State by conclusion in due form, it becomes
conclusion of a treaty, alter its territorial application by binding upon the State as a whole, and, by derivation,
a mere ipse dixit to the effect that certain territories, upon each of its several organs and institutions, each of
apparently part of its metropolitan territories, are not which becomes bound, as part of the State, to play what-
so, or vice versa. Any such determination, dependent ever part is necessary in order to make the treaty
purely on a declaration by the government concerned, effective. It can therefore never be accepted (for
must either have been made and published in advance instance, as a ground excusing non-performance of a
of the conclusion of the treaty, or else be specifically treaty) that, although the administrative organs of a
brought to the attention of the other parties at the time State were ready and willing to carry it out, the
of the conclusion of the treaty. legislative organs failed to pass the necessary legislation,
or that the judicial organs failed to give effect to the
141. Paragraph 4. On the other hand, a genuine treaty in the courts. The point is made over and over
alteration in the status or constitutional position of a again by the authorities, and many useful examples of
particular territory, or in its relations with the metro- this are cited in the Harvard Draft Convention on
politan government, may have occurred subsequent to Treaties.129 For instance, as far back as 1833, Mr. Liv-
the conclusion of the treaty, and for this reason the ingston, United States Secretary of State, in a pas-
words " resulting from a genuine change in the status sage quoted by Wharton, 130 said:
or constitutional position, etc." are included. In such a "The Government of the United States presumes
case, this paragraph of the article would not, as such, be that whenever a treaty has been duly concluded and
applicable. It would not, however, necessarily follow
that the treaty itself would either become, or cease to be, 120
Op. cit. in footnote 15 above ; see commentary to articles
applicable to the territory concerned. This would depend 20 and 23 of the Harvard Draft, passim.
upon its terms and on the rules of (or on rules analogous l.io Wharton, A Digest of the International Law of the United
to those of) State succession. States, 1887, p. 67.
 Law of treaties 77

ratified by the acknowledged authorities competent modifications as may be necessary to ensure the
for that purpose, an obligation is thereby imposed fulfilment of the obligations undertaken." 13S
upon each and every department of the government Reference may also be made to the judgement of the
to carry it into complete effect, according to its terms, Permanent Court in the case of the Jurisdiction of the
and that on the performance of this obligation Courts of Danzig.136 In another form and context, having
consists the due observance of good faith among particular reference to the case of federal States, the
nations." same position was taken up by the tribunal in the
About the same time (1839), the French Conseil d'Etat Montijo case, in which a federal government denied
" affirmed that the obligation to execute treaties rests responsibility for the acts of a component state in
not upon a single organ or authority but upon all those, relation to a treaty. The Umpire said:
legislative, executive and judicial, whose collaboration "For treaty purposes the separate States are non-
may be necessary" — (Rapporteur's italics).131 The existent ; they have parted with a certain defined
same point is made in Dana's Wheaton 132 as follows: portion of their inherent sovereignty, and can only
"If a treaty requires the payment of money, or be dealt with through their accredited representative
any other special act, which cannot be done without or delegate, the federal or general government. But,
legislation, the treaty is still binding on the nation; if it be admitted that such is the theory and the
and it is the duty of the nation to pass the necessary practice of the federal system, it is equally clear that
laws. If that duty is not performed, the result is a the duty of addressing the general government carries
breach of the treaty by the nations, just as much as if with it the right to claim from the government, and
the breach had been an affirmative act by any other from it alone, the fulfilment of the international
department of the government. Each nation is pact." 137
responsible for the right working of the internal sys- 145. Paragraph 1 of article 30. The remarks made in
tem, by which it distributes its sovereign functions." paragraphs 141 to 143 above are relevant and sufficient
144. Rousseau equally formulates the same principle, as a commentary to this paragraph, which simply states
when he says 133 that all the organs of the State " being the basic duty of every State (and by the term
obligated to contribute towards the application of the "State" is meant the whole State, including all of its
treaty, the legislative organ—which is just as much an organs) so to conduct itself in relation to its law and
organ of the State as the executive and judicial organs— constitution that it is in a position to carry out its treaty
is thus bound to take the measures necessary... for obligations.
bringing the treaty into force"; and he continues 146. Paragraph 2 is based on the view, supported by
(citing the judgement of the Permanent Court of Inter- the authorities already cited, that provided the object
national Justice in the case of German Interests in contemplated by paragraph 1 is attained, it is immaterial
Upper Silesia) to make the point about the lack of by what means this is done, and it is a domestic matter
relevance from the international standpoint of domestic for each State to decide for itself what method shall be
difficulties, conflicts etc., which are of interest only on employed. This paragraph has accordingly been
the internal plane. In this passage he says: 1 3 4 expressly drafted so as to try to avoid the necessity
" International jurisprudence very clearly confirms for theoretical controversy about whether the treaty
the superiority of treaties over domestic law by pro- obligation operates on a monistic or dualistic basis, etc.
viding that in case of conflict the former shall prevail There are in fact a number of possible positions theo-
over the latter irrespective of which of the two legal retically, and, in practice, a number of possible ways in
acts was the first to take effect. For the international which a State can ensure that its domestic position
judge, municipal laws are 'merely facts which allows it to carry out its treaty obligations, or places
express the will and constitute the activities of no obstacle in the way of their performance. Beyond
States'. (Permanent Court of International Justice, that it seems unnecessary to go for present purposes.
judgement of 25 May 1926, Case concerning certain 147. Paragraph 3. However much it may be argued
German interests in Polish Upper Silesia (the that, as a matter of principle, an international treaty
merits), Publications of the Court, Series A, No. 7, ought to operate directly in the domestic field (i.e.
p. 19)". ought to be " self-executing"), it is not possible in
Equally, in the case of the Exchange of Greek and practice to compel States to adapt their laws and con-
Turkish populations, the Permanent Court affirmed it as stitutions to conform with this position unless they in
a " self-evident principle " that fact wish to do so. Moreover, even in countries where,
" . . . a State which has contracted valid international in principle, treaties are self-executing, considerable
obligations is bound to make in its legislation such difficulties arise in the practical application of the self-
executing rule, and it is by no means always possible to
avoid the necessity for some kind of special legislation
131
Harvard Law School, Research in International Law, III, or administrative or other action, as the case may be.
Treaties, p. 979, citing Dalloz, Jurisprudence general, Repertoire, Paragraph 3 is merely intended to emphasize that where,
vol. 42, I, No. 131, p. 555.
135
132 Wheaton, Elements of International Law, 8th American Publications of the Permanent Court of International Jus-
edition by Dana, p. 715 : Dana's Note, No. 250, citing Kent, 1, tice, Collection of Advisory Opinions, series B, No. 10, p. 20.
pp. 165-166.
iso Ibid., No. 15, p. 26.
133
Op. cit. in footnote 70 above. 137
Moore, History and Digest of International Arbitrations,
134
Ibid., p. 418. 1898, pp. 1439, 1440.
78 Yearbook of the International Law Commission, Vol. II

on account of the domestic position such action is tribunals; and for this omission the State is accordingly
necessary in order that the treaty may be implemented, responsible if, as a result of it, the treaty fails to be
it must be taken. carried out. It is not possible in such a case for the State
148. Paragraph 4. This represents the negative to shelter behind the doctrine that the administration is
counterpart of the affirmative rule laid down in para- not in a position to interfere with the decision of the
graph 3, and also makes the point that the State has an courts, just as it cannot plead lack of the necessary
obligation not merely to take such action as is necessary control over the legislature. This is never, in law, the
in order to make the treaty effective on the domestic point, for the obligation is the (whole) State's, not
plane, but is also under an obligation to keep this that of the administration alone. Thus, in the example
position intact so long as the treaty remains in force, given, the decision of the courts would have been
i.e. not to take, subsequently to the conclusion of the different if the necessary legislative steps had been
treaty, any action, or pass any legislation which would taken.
prevent the continued implementation of the treaty. 154. The legal position would be just the same if the
149. Paragraph 5. A certain practice (though very necessary legislation existed, but the courts had failed
far indeed from invariable) has sprung up of including to apply it, or had misapplied it in such a way that the
in treaties specific clauses about the obligation of the treaty was not implemented. It may be that, in such
parties to take any necessary legislative or other circumstances, the administration as such cannot inter-
measures for the implementation of the treaty. But this fere with or change the decision of the courts. Never-
is precisely because of the tendencies that have been theless, there is a failure to carry out the treaty arising
manifested by governments from time to time to offer from the action of one of the organs of the State and,
" de frequentes resistances" (as Rousseau puts it) 1 3 8 accordingly, the State, considered as an international
to the logic of the principles here formulated. Such pro- entity, is responsible.
visions are included ex abundanti cautela, and have a
merely affirmatory or declaratory effect. Their absence RUBRIC (b). EFFECTS OF TREATIES ON AND IN RESPECT OF PRIVATE
—and in most cases they are absent—in no way implies INDIVIDUALS AND JURISTIC ENTITIES WITHIN THE STATE
their contrary.
Article 32. Treaties involving obligations for private
Article 31. Position and duties of particular organs individuals or juristic entities
of the State
155. This and the succeeding article have been
150. In general, the comments made in connexion drafted in such a way as to try and avoid any theoretical
with the immediately preceding articles (see especially controversy about the position of private individuals and
paras. 141-143) apply, even more specifically, to the juristic entities under international law, and how far
present article. they are directly subjects of it.139 That, on the other
151. Paragraph 1. This propounds the principle that 139 A gOod statement of the position about this, in so far as
from the international point of view it is immaterial, treaties are concerned, was given by the Permanent Court in the
and indeed, theoretically, need never even be the subject Jurisdiction of the Danzig Courts case (series B, No. 15), when
the Court said (Report, pp. 17-18):
of inquiry or discussion, through what particular organ
" The point in dispute amounts therefore to this : Does the
a State discharges its international treaty responsibili- Beamtenabkommcn, as it stands, form part of the series of
ties. This is a purely domestic matter which is left to provisions governing the legal relationship between the Polish
each State to decide for itself. Railways Administration and the Danzig officials who have
passed into its service (contract of service) ? The answer to
152. Paragraph 2. The converse of this, however, is this question depends upon the intention of the contracting
that, while it is left to the State to take this decision, Parties. It may be readily admitted that, according to a well
the State is correspondingly bound, in so far as it may established principle of international law, the Beamtenab-
kommen, being an international agreement, cannot, as such,
be necessary, to take it and to secure that the organ create direct rights and obligations for private individuals.
charged with the responsibility for implementation on But it cannot be disputed that the very object of an inter-
the internal plane duly plays its part. national agreement, according to the intention of the con-
tracting Parties, may be the adoption by the Parties of some
153. Paragraph 3. This paragraph is directed to the definite rules creating individual rights and obligations and
type of case in which, for instance, a treaty is not im- enforceable by the national courts. That there is such an
plemented on the internal plane because when, in the intention in the present case can be established by reference
course of legal proceedings, the question of implement- to the terms of the Beamtenabkommen."
In commenting on this, Rousseau (op. cit. in footnote 70
ing the treaty arises, the court decides that it is unable above, pp. 438, 439) says:
to give effect to the treaty for lack of the necessary " Our conclusion will quite naturally be based on this very
domestic legislation directly binding upon it. It may be important judicial precedent. It can indeed be said that an
that in taking up this attitude the judge is, from the international treaty is not in itself a source of national law.
domestic point of view, fully justified. Indeed, it may be It merely creates an obligation between States, a rule which
States ought to follow. Individuals are not affected by rules
the only course which it is possible for him to follow, of international law unless those rules reach them through
considered from that point of view. This, however, the medium of national laws. That is the doctrine—of posi-
merely means that the State, considered as an inter- tivist origin—which is generally accepted today. And the
national entity, has failed to take the steps necessary in Permanent Court of International Justice says that it is a
' well established principle of international law '.
order to secure the implementation of the treaty by its
" However,. . . it is always possible to stipulate the con-
trary and to decide that a treaty will constitute a direct source
138
Loc. cit. in footnote 70 above. of rights and obligations for individuals. Here the intention
 Law of treaties 79

hand, they may be the objects of rules of international treaty, even though these may redound to the benefit
law or of treaty provisions, admits of no doubt. or advantage of individual persons being its nationals,
or of national juristic entities. Whether, on the domestic
156. With regard to treaties that may impose duties plane, this is a proper thing for the State to do, is
upon individuals (which term, to avoid repetition, will entirely a matter of the local law and constitution and
herein be used as comprising—mutatis mutandis— is not of direct interest to international law. For any
juristic entities), or prohibit them from certain courses impropriety in this respect, the State would be
of conduct, it has to be remembered that, whether as a answerable either administratively or judicially on the
matter of theory and principle, an individual is or is not domestic, but not on the international, plane. 140
a subject of international law, he can never be a subject
of international law in the same way as a State, assuming 160. The second and third sentences of paragraph 2
it to possess full, treaty-making capacity. Such a State go together. It is obvious that an individual—including
is subject to no authority but its own and is in a position a juristic entity—can, so far as he personally is con-
to take the necessary steps to carry out any treaty to cerned, renounce any benefit or advantage accruing to
which it has become a party. In the case of the in- him under a treaty; but this action cannot bind his
dividual, the will and authority of his State and Govern- State, or prevent the State from insisting on due per-
ment is normally interposed between him and the formance, if it thinks fit. For instance, a general point
execution of any international obligations which may of principle may be involved affecting other individuals
be incumbent upon him either generally or by reason besides the particular individual concerned, or affecting
of a treaty. Whatever the theoretical position, his State the State as a whole, and the State may consider it
or Government can, in practice, prevent the perfor- necessary to insist upon this in spite of the willingness
mance of such obligations if they exist, or alternatively of a particular individual to renounce his rights.
place him in a position in which he may have no
reasonable alternative but to take action of a kind pro- 161. Some cases, on the other hand, have in their
hibited by the rule or treaty concerned. nature a two-fold aspect: there has been an injury not
merely to some individual, but also separately to the
157. For present purposes it is not intended, State itself, apart from the prejudice caused to it in the
neither is it necessary, to go into the question of how person of its national. In a certain sense, a breach of
far a situation of this kind will absolve the individual treaty could be said always to have this double aspect in
from personal responsibility. The point is that, whether cases where individual rights are concerned. A good
or not he has a direct obligation, and whether or not he illustration (not necessarily confined to a case of
is directly responsible for any failure to implement it, treaties) is where, in reference to some maritime
his State and Government are certainly under a duty to matter, a "flag" aspect is involved, concerning the
ensure that so far as the position under the domestic State as such, in addition to injury caused to particular
laws of the State is concerned, their nationals are free to individuals, or failure to accord them the treatment
carry out such duties as may result from a treaty—for provided for under some treaty. In cases of this kind,
after all, it is the State which is the party to the treaty, international tribunals have not infrequently awarded
not the individual as such ; and but for the action of his damages under the two separate heads of those relating
State, the individual would not have the duty in to the individual concerned, and those relating to the
question. In the same way, it is for the State, in the flag and the State as such.141
execution of the treaty, to take such steps as may be
necessary to compel its nationals to observe it, where
this is required for its due implementation.
SUB-SECTION 111. MISCELLANEOUS PARTICULAR QUESTIONS
OF TREATY APPLICATION
Article 33. Treaties involving benefits for private indi-
viduals or juristic entities
162. This is left blank, partly because, as in the case
of article 23, an exhaustive treatment of it would need
158. Paragraph 1. This is an easier case than the one a detailed study of a large number of treaty clauses of
which has just been considered. Nevertheless, the fun- different kinds, and possibly information as to the
damental principles applicable are precisely the same, practice of Governments respecting such clauses; partly
and it will be sufficient to refer to the commentary also because many of the questions involved are likely
contained in the immediately preceding paragraphs. to turn out to be governed by considerations of treaty
159. Paragraph 2. It is generally accepted, and indeed interpretation pure and simple, and it seems best there-
it must be the case, that the State being the party to
the treaty, it can, acting through its normal agent, 140
In a number of United Kingdom cases, it has been decided
namely the Government, renounce its rights under the that the Crown not being an agent of the citizen in relation to a
treaty, even where it involves benefits for individuals, the action
of the executive in such a matter cannot normally be controlled
of the parties is decisive as is evident from an examination by the domestic tribunals (see Rustomjee v. the Queen (1876)
of treaty practice as well as of arbitral and judicial practice." L.R., 1 Q.B.D. 487 ; 2 Q.B.D. 69 ; Civilian War Claimants
The Rapporteur does not dissent from this conclusion, al- Association v. the King, L.R. (1932) A.C. 14 ; Administrator of
though he thinks it tends to avoid the real issue that arises in German Property v. Knoop, L.R. (1933) 1 Ch. 439).
such cases, namely that whatever the individual's rights before 111
his own (or the other party's) domestic tribunals, has he a The case of the I'm Alone (United States v. Canada) is in
direct international right under the treaty, or is it the case that point; see the present Rapporteur's article in the British Year
the international right is still vested solely in his State as the Book of International Law for 1936, p. 82. The proceedings and
party to the treaty, which alone can take action on that plane decision of the Commissioners were published by the King's
if the right is denied? Printer, J. O. Patenaude, Ottawa, 1935.
80 Yearbook of the International Law Commission, Vol. II

fore to defer them until the chapter on that subject has Article 35. Method of discharging the responsibility
been drafted. arising from breach of treaty

168. Paragraph 1. In a number of cases, the penalties

DIVISION B. CONSEQUENCES OF or the reparation due for breach of treaty is provided
AND REDRESS FOR BREACH OF TREATY for in the treaty itself. If the treaty thus provides for
penalties or reparation, then, subject to the correct inter-
pretation of the treaty, it is probably a reasonable
SECTION 1. CONSEQUENCES OF BREACH OF TREATY inference that the parties intended these particular
penalties or means of reparation to exclude any others,
Article 34. Basic principles so that in complying with the provisions concerned, the
State which has committed the breach will fully
discharge its responsibility.
163. Paragraph 1. This requires no comment. A justi-
fied non-performance of a treaty obligation is clearly 169. In cases where the treaty is silent about the
not a breach of the treaty. If, purely formally, it may consequences of a breach, then, subject to the remaining
be said to constitute one, no illegality in the sense of a provisions of this article, the general rules of inter-
breach of international law is thereby involved. Where national law relating to the method by which State
international law itself excuses or justifies the breach, responsibility must be discharged, will apply. A breach
there can be no infraction of international law. of treaty is simply one form of international wrong. In
164. Paragraph 2. The second sentence is conse- a certain sense, a breach of treaty is itself an infraction
quential upon the first and requires no comment. The of a general rule of international law, namely the rule of
first sentence itself reflects the finding of the Perma- law which enjoins that treaties regularly entered into
nent Court of International Justice in the Chorzow must be carried out. Where there is no reason to apply
Factory case (Claim for Indemnity) (Jurisdiction). In any other rule, therefore, the general rules of inter-
this case the Court said: national law concerning reparation, and the method of
furnishing it, will be applicable.
" It is a principle of international law that the
breach of an engagement involves an obligation to 170. Paragraph 2. Nevertheless, it seems desirable
make reparation in an adequate form. Reparation, not to leave the matter entirely on this general footing
therefore, is the indispensable complement of a failure and therefore to provide some specific rules for dis-
to apply a convention, and there is no necessity for charging responsibility arising from breach of treaty.
this to be stated in the convention itself."142 They will vary according to the nature of the breach,
and this paragraph lists the three main classes of cases
165. "...irrespective of its character or gravity". into which breaches of treaty normally fall.
The character or gravity of the breach of treaty is only
material on the question of the nature or extent of the 171. Paragraph 3. In this paragraph, an attempt is
reparation due. It cannot affect the question of responsi- made, in relation to each of the three classes of cases
bility which exists, at any rate in principle, for any mentioned in paragraph 2, to indicate what specific
breach, however trivial. action is appropriate in order to discharge the resultant
responsibility. The paragraph as a whole is based on the
166. Paragraph 3. Because a breach of treaty gives principle that reparation by way of payment of damages
rise immediately to international responsibility on the is not necessarily sufficient; and this view, which is of
part of the State committing the breach, there arises at course well known in private law, also derives authority
once an obligation for that State to discharge this internationally from another part of the decision of the
responsibility. This obligation, in principle at any rate, Permanent Court in the Chorzow Factory case, cited in
arises forthwith and is not dependent upon the taking paragraph 164 above. The Court said that reparation
of any specific steps by the other party or parties, or by
any international institution. There may, of course, be a "must, as far as possible, wipe out all the conse-
question whether there has in fact been a breach, and quences of the illegal act and re-establish the situation
whether the existence of the breach is duly established, which would in all probability have existed if that act
but that is another matter. Once it is established, had not been committed." 143
responsibility exists, and the responsibility for dis- The sub-heads of this paragraph attempt to work out the
charging that responsibility, so to speak, rests upon the practical consequences of this principle in relation to
State concerned, which then has the duty, if necessary, each of the classes of cases mentioned in paragraph 2.
of taking the initiative in effecting the necessary
reparation. 172. Paragraph 4. In connexion with reparation, and
in particular with damages, a number of incidental
167. Paragraph 4. If the responsibility arising from questions are liable to arise, such as the question of
the breach is not discharged, then a right at once arises " remoteness ", of whether interest is due, etc. Subject
for the other party or parties to take remedial action and to any specific provisions of the treaty itself, all such
to seek such redress as may be open to them. questions must be governed by the rules of the ordinary
international law of claims.
142
Publications of the Permanent Court of International Jus-
143
tice, Collection of Judgments, series A, No. 9, p. 21. Ibid., p. 47.
 Law of treaties 81

Article 36. Consequences of breaches of treaties recourse to the redress in question. In this connexion, it
involving benefits for individuals is necessary to draw a distinction between, on the one
hand, the question which has been dealt with in earlier
173. The rule stated in this article represents a parts of this chapter, whether a non-performance of a
further aspect of a position already discussed in para- treaty obligation in certain circumstances is justified in
graph 161 above in connexion with paragraph 2 of law and, on the other hand, the existence of any proce-
article 33. According to a very well-established prin- dural conditions under which, in the circumstances, the
ciple of international law, it is of course always the case non-performance (however justified) ought to be
that an injury to the national of a State, whether re- carried out. There can be no doubt, for instance, that if
sulting from a breach of a general rule of international one party definitely fails to perform a treaty obligation,
law or of a treaty, constitutes by that very fact an injury the other party will, subject to what has been said
to the State itself; and where the injury to the indi- earlier, be justified in a corresponding or perhaps some
vidual represents the sole material consequence of the other non-performance ; or rather, more accurately, that
breach of law or treaty, such injury will normally con- such action on its part will not amount to an infraction
stitute the measure of the damages due to the State. of international law. Nevertheless, it may be desirable
This is, however, subject to the rule already referred to, to subject the right to take such action to certain proce-
that any additional and independent injury caused to dural conditions. These are considered in articles 38
the State as such, e.g. through violation of its jurisdic- and 39.
tional rights or through an offence caused to its flag,
must be the subject of separate compensation. Further-
more, the Permanent Court, in another phase of the SUB-SECTION 11. SPECIAL PROCEDURAL CONSIDERATIONS
Chorzow Factory case (Claim for Indemnity) (Merits), AFFECTING CERTAIN MEANS OF REDRESS
considered that even in those cases where, ostensibly,
only injuries to individuals had occurred, a separate Article 38. Case (c) of Article 37
damage to the State must still be presumed to exist, the
damage to the individual affording merely a convenient 175. As this case contemplates the total termination
method of calculating the reparation due to the State in of the treaty obligation on grounds of fundamental
respect of the injury to its national. The text of the breach, it is sufficient to refer back to the articles dealing
relevant passage is worth quoting in full: with that matter in the Rapporteur's second (1957)
"The reparation due by one State to another does report, in particular article 20 and the commentary
not however change its character by reason of the fact thereon, dealing with the question of arbitration or judi-
that it takes the form of an indemnity for the calcu- cial settlement.
lation of which the damage suffered by a private
person is taken as the measure. The rules of law go- Article 39. Cases (d), (e) and (f) of Article 37
verning the reparation are the rules of international
law in force between the two States concerned, and 176. Paragraph 1. Since counter-measures, in order
not the law governing relations between the State to be effective, may have to be taken at very short
which has committed a wrongful act and the indivi- notice, it would not be possible to make them condi-
dual who has suffered damage. Rights or interests of tional upon a prior offer or acceptance of arbitration or
an individual the violation of which rights causes judicial settlement, but it can be laid down that they
damage are always in a different plane to rights must be accompanied by an offer to that effect, or that
belonging to a State, which rights may also be an offer made by the other party must be accepted, as
infringed by the same act. The damage suffered by a condition of their continued validity.
an individual is never therefore identical in kind with
that which will be suffered by a State; it can only 177. Paragraph 2. This confers a general right on the
afford a convenient scale for the calculation of the tribunal, in the event of arbitration or judicial settle-
reparation due to the State." 144 ment, to suspend, if it thinks fit, any countermeasures
which may already have been instituted. The only
exceptions to this are those measures contemplated by
SECTION 2. MODALITIES OF REDRESS FOR BREACHES sub-paragraph (e) of article 37. Here it would seem
OF TREATY sufficient to provide that the measures in question can
only take a blocking character pending the final out-
SUB-SECTION I. GENERAL STATEMENT OF AVAILABLE
come of the case, since in that case, the measures would
REMEDIES
merely be provisional and precautionary.
178. Paragraph 3. Sub-paragraphs (a) and (b)
Article 37. Action by way of redress open to the parties impose some general limitations on the taking of any
counter-measures at all. These are believed to reflect
11 A. The principal comment required on this article ordinary principles of international law, but in view of
is to draw attention to the safeguards suggested in con- the detailed provisions of article 18, it may be un-
nexion with the taking of certain kinds of action by way necessary to include mention of them here.
of redress, and involving for the most part an offer of
recourse to arbitration, or willingness to accept arbitra- 179. Sub-paragraph (c) provides for the cessation of
tion or judicial settlement as a condition of having the counter-measures so soon as the occasion for them
is past. The same observation applies here (see paras.
144
Ibid., No. 17, p. 28. 55-57 and 67 above).