Part 4 International Transactions, Ch.14 Treaties, Character and Function of Treaties

Part
4 International transactions, Ch.14 Treaties,

Character and Function of Treaties
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
From: Oppenheim's International Law: Volume 1 Peace (9th edition)

Edited By: Sir Robert Jennings QC, Sir Arthur Watts KCMG QC
Content type: Book content Product: Oxford Scholarly Authorities on

Published in print: 19 June 2008 International Law [OSAIL]
ISBN: 9780582302457
Subject(s):
Vienna Convention on the Law of Treaties — Treaties, binding force
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Oxford University Press - Master Gratis Access; date: 21 March 2017
Character and Function of Treaties
Harv Research (1935), pt III, pp 686–705 Dupuis, Hag R (1924), i, pp 322–49 Butler and Maccoby,
The Development of International Law (1928), ch xvii Hoijer, Les Traités internationaux, 2 vols,
(1928) Chailley, La Nature juridique des traités internationaux (1932), pp 3–72 Frangulis, Théorie
et pratique des traités internationaux (1936) Jessup, A Modern Law of Nations (1948), pp 123–56
Pillaut, Clunet, 46 (1919), pp 593–602 Réglade, Revue de droit public et de la science politique,
41 (1924), pp 505–40 Crocker, AJ, 18 (1924), pp 38–55 Report by Mastny and Rundstein for League
Codification Committee, AJ, 20 (1926), Special Suppl pp 204–21 McNair, BY, 11 (1930), pp 100–118
Whitton, Hag R, 49 (1934), iii, pp 175–249 Kraus, ibid, 50 (1934), iv, pp 317–96 Kelsen, Théorie du
droit, 10 (1936), pp 253–92 Mann, BY, 21 (1944), pp 11–33 Kunz, AJ, 39 (1945), pp 180–97 Starke,
BY, 23 (1946), pp 341–6 Jessup, AJ, 41 (1947), pp 378–405 Fawcett, BY, 30 (1953), pp 381–400
Fitzmaurice, BY, 35 (1959), pp 194–6 Wehberg, AJ, 53 (1959), pp 775–86, and Festschrift für Alfred
Verdross (1960), pp 307–19 de Arechaga, Hag R, 159 (1978), i, pp 35–7 Widdows, BY, 50 (1979),
pp 117–50 Satow, pp 236–63 Parry, in Multum non Multa (Festschrift für Lipstein) (eds Fuerstein
and Parry, 1980), pp 221–39 Sinclair, The Vienna Convention on the Law of Treaties (2nd ed,
1984), pp 1–28 Restatement (Third), i, pp 149–52 Reuter, Introduction to the Law of Treaties (Eng
trans, 1989, by Mico and Haggenmacher, of 2nd ed (1985) of original in French) Igweike, Indian JIL,
28 (1988), pp 249–63. And see bibliography preceding § 8, and § 11, as to treaties as a source of
international law.
§ 581 Development of the law of treaties: Vienna Conventions on

the Law of Treaties 1969 and 1986
Treaties, being essentially written agreements between states, have had a prominent place in
international relations since long before international law in the modern sense of the term was in
existence.1 The customary rules of international law relating to treaties gradually acquired
considerable certainty and precision. Nevertheless, the very great importance of treaties in
international relations and the uncertainty or unsatisfactoriness of some aspects of customary
international law made the law of treaties a suitable (p. 1198) subject for consideration by the
International Law Commission.2 In 1966, the Commission adopted its final report on the law of
treaties, containing a set of draft Articles and commentaries upon them.3 These served as the
basic proposal before a Conference, attended by representatives of over 100 states,4 which was
held in Vienna in two sessions, in 1968 and 1969, and adopted the Vienna Convention on the Law
of Treaties.5 The Convention entered into force on 27 January 1980.
In 1986 a further Convention was concluded, also in Vienna and also on the basis of preparatory
work by the International Law Commission,6 on the Law of Treaties between States and International
Organizations or between International Organisations7 This Convention has the broad effect of
applying to international agreements between such parties the designation of ‘treaties’, and
extending to them substantially the same rules, mutatis mutandis, as apply to treaties between
states under the Vienna Convention of 1969. Accordingly, it is that Convention whose provisions
will principally be considered, particularly since the 1986 Convention may not enter into force for
some time yet.
The Vienna Convention of 1969 deals with the greater part of the law of treaties. The customary law
of treaties is nevertheless still relevant for questions not regulated by the provisions of the Vienna
Convention; 8 for international agreements not within the scope of the Convention; 9 for treaties
concluded by
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(p. 1199) states before the entry into force of the Convention with regard to such states; 10 and for
treaties involving states not parties to the Convention.11 One further general limitation upon the
application of the Convention which should be noted concerns treaties which are constituent
instruments of, or which are adopted within, international organisations: the Convention applies to
such treaties without prejudice to any relevant rules of the organisation.12 In the following pages,
therefore, while primary consideration will be given to the law as it is under the Vienna Convention
of 1969, the applicable rules of customary international law will also be considered. It must be
noted that many provisions of the Vienna Convention reflect rules of customary international law
which are binding as such quite apart from the Convention; 13 and that other provisions of the
Convention may themselves be expected in time to acquire the force of rules of customary law.14
§ 582 Concept of treaties

The Vienna Convention defines ‘treaty’ as ‘an international agreement concluded between States1
in written form and governed by international law, whether embodied in a single instrument or in two
or more related instruments and whatever its particular designation’.2 This definition involves no
fundamental departure from customary international law,3 although several points in the definition
require emphasis.
(1) ‘Treaty’ is given a generic meaning, rather than a meaning limited to one particular form
of international agreement. 4
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(p. 1200) (2) Whether or not an instrument constitutes a treaty does not depend on its
designation. 5
(3) The fact that the definition, like the Convention as a whole, only applies to agreements
between states, does not affect the legal force of agreements between states and other
subjects of international law or between such other subjects, or the application to such
agreements of any of the rules in the Convention to which they would be subject under
international law independently of the Convention, or the application of the Convention to the
relations to states as between themselves under international agreements to which other
subjects of international law are also parties. 6
(4) The agreement must be governed by international law. So agreements subject to some
national system of law will not constitute treaties, even though the parties are states, or,
perhaps more usually in these circumstances, government departments of different states. 7
Where the agreement is concluded between parties who have no international legal
personality it will not be governed by international law. 8
(5) In addition to the traditional form of treaties — ie treaties negotiated and signed expressly
on behalf of the Head of State by virtue of full powers received from him — treaties may be
concluded between governments or between departments of governments. 9 The former,
concluded between
References
(p. 1201) the governments of the contracting parties, are, in their legal effect, in the same
category as ordinary treaties concluded on behalf of the state. They are not limited to
matters of minor or transient importance. The main reason for adopting this form of treaty is
that it is attended by less formality and that, occasionally, it obviates certain inconveniences
connected with the internal law of the country concerned. 10
However that may be, the international validity of such agreements is the same as that of
ordinary treaties. The same applies to agreements made, with the authority of the
governments concerned, between government departments or ministries. 11 Often treaties
12
provide expressly for interdepartmental arrangements of this nature. 12
(6) Although the agreement must be in written form in order to come within the scope of the
Convention, this does not affect the legal force of oral agreements. 13
(7) The definition does not assist very much with the answer to the question whether a
particular instrument is ‘an international agreement … governed
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(p. 1202) by international law’. It is suggested that the decisive factor is still 14 whether the
instrument is intended to create international legal rights and obligations between the parties
— an element which the International Law Commission regarded as embraced within the
phrase ‘governed by international law’. 15 The existence or otherwise of such an intention
will need to be determined in the light of all the circumstances of each case. The registration
of an instrument with the United Nations may imply that it was intended and understood to be
a treaty. 16 In some cases, as with the Universal Declaration of Human Rights, 17 the
absence of an intention to undertake a legal obligation appears clearly from the statements
made by governments prior to the adoption of the text of the instrument. In other cases the
clauses of the instrument indicate with sufficient clarity that they are intended as formulating
general statements of principle and policy rather than legal obligations. 18 A difficult question
arises in cases in which the terms of the undertaking leave to the parties a measure of
discretion so wide as to raise doubts whether there exists a legal obligation. 19 In such
cases, it is believed, the determination of the extent of the obligation of a state, although
lying within the competence of the interested state, must take place in accordance with the
legal duty to act in good faith. The fact that the interested state is the judge of the existence
of the obligation is, although otherwise of considerable importance, not of decisive relevance
for the determination of the legal character of the instrument. 20 Where states wish to record
certain matters in writing, but wish to do so in a manner which is not intended to create legal
rights and obligations and
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(p. 1203) does not constitute a legally binding agreement, various procedures are open to
them. 21 Thus they may conclude a memorandum of understanding, 22 or they may make
parallel — but unilateral rather than consensual statements, 23 or they may record their
views in a ‘gentleman’s agreement’ thereby implying that they do not have the intention of
entering upon legal rights or obligations, 24 or they may adopt a Declaration intended as
more a statement of policy and intention than a legally binding instrument. 25 Although the
designations given to these various procedures may be indicative of their non-binding
character, the decisive element in any particular case is the intention of the parties.
§ 583 So-called law-making treaties

Attempts at classification of the different kinds of treaties1 are of limited usefulness. Nevertheless,
one distinction which has practical consequences is that between bilateral and multilateral treaties.
While the underlying legal principles of treaty law apply to multilateral treaties as to bilateral
treaties, the existence of numerous parties to the former give rise to particular problems as regards
the legal relations between parties in such matters as conclusion and entry into force of such
treaties, reservations to them, their interpretation, withdrawal from them and their termination.2
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(p. 1204) A further distinction which, although controversial and theoretically faulty, is nevertheless
of some practical importance is that between treaties concluded for the purpose of laying down
general rules of conduct among a considerable number of states (which may be termed ‘law-
making’ treaties)3 and treaties concluded for any other purpose. In a sense the distinction between
law-making and other treaties is merely one of convenience. In principle, all treaties are law-making
inasmuch as they lay down rules of conduct which the parties are bound to observe as law.
However, relatively extensive participation4 in a treaty, coupled with a subject matter of general
significance and stipulations which accord with the general sense of the international community,
do establish for some treaties an influence far beyond the limits of formal participation in them.
These factors give such a treaty something of the complexion of a legislative instrument, and assist
the acceptance of the treaty’s provisions as customary international law in addition to their
contractual value for the parties.5 No fixed
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(p. 1205) time can be set for the evolution of such treaty rules into rules of customary international
law. The process whereby a treaty’s provisions may come also to be rules of customary law is of
considerable significance for the role of treaties in international law.6
In addition, judicial practice has tended to recognise a type of treaty which, although contractual in
origin and character, possesses an existence independent of and transcending the parties to the
treaty. Thus in the case concerning the Status of South West Africa the International Court of
Justice held that the provisions of the Mandate for South West Africa — which was in the nature of a
treaty between the Council of the League of Nations and South Africa — were not decisively
affected by the fact that the League had ceased to exist. ‘The international rules regulating the
Mandate constituted an international status for the Territory recognised by all the Members of the
League of Nations, including the Union of South Africa.’7 Similarly, the effect of establishing a status
or regime valid erga omnes8 has on occasion been attributed to treaties establishing a new state9
or an international organisation,10 to treaties imposing a special status upon a territory,11 and to
treaties creating a special regime for an international
References
(p. 1206) waterway.12 It is not settled whether treaties in this category are juridically similar to other
law-making treaties in that their extra-contractual effects are based on the operation of their
provisions as customary law following the general consent of other states, whether they have some
inherent and distinct juridical element of their own, or whether they merely illustrate a particular
application of the normal rules governing the acquisition by third states of rights and obligations
under treaties.13
§ 584 Binding force of treaties

Article 26 of the Vienna Convention on the Law of Treaties provides: ‘Every treaty in force1 is
binding upon the parties to it and must be performed by them in good faith’.2 The question why
international treaties have binding force has been much disputed.3 The correct answer is probably
that treaties are legally binding, because there exists a customary rule of international law that
treaties are binding. The binding effect of that rule rests in the last resort on the fundamental
assumption, which is neither consensual nor necessarlly legal, of the objectively binding force of
international law.4
References
Footnotes:
1 For the predominance of treaties, as compared with customary international law, in medieval
practice, see Schwarzenberger, BY, 25 (1948), pp 87–90. See also Ténékidès, Hag R, 90 (1956), pp
518–32 as to the operation of treaties in the Greek city states in the 3rd, 4th and 5th centuries BC.
As to the role of the oath in ancient treaties, see Magnetti, AJ, 72 (1978), pp 815–29.
2 At its first session in 1949 the Commission included the law of treaties in its provisional list of
topics selected for codification. See § 30. The League of Nations Committee set up in 1924 to report
on the codification of international law did not include the substantive law of treaties as ripe for
codification (see § 29); the Pan-American Conference adopted a codifying Convention on Treaties
in 1928 (AJ, 22 (1928), Suppl, p 124ff).
3 YBILC (1966), ii, pp 173–274. The ILC’s Commentaries are an invaluable source of reference. The
UN Secretariat prepared in 1967 a valuable Guide to the Draft Articles on the Law of Treaties
Adopted by the International Law Commission at its Eighteenth Session (1966), giving references
to previous consideration in the UN and by the ILC to each of the final draft Articles: UN Doc A/C
6/376. See also, for comment on the ILC’s final draft Articles, a series of contributions in ZöV, 27
(1967), pp 408–561; and Lachs, Recueil d’études de droit international en hommage à Paul
Guggenheim (1968), pp 391–402.
4 103 states attended the first session of the Conference, and 110 the second. For a summary of
the background to the convening of the Conference, see Sinclair, ICLQ, 19 (1970), pp 50–53. On
the conference itself see Nahlik, AFDI, 15 (1969), pp 24–53; Daudet, ibid, pp 54–69; Rosenne,
Developments in the Law of Treaties 1945–1986 (1989), pp 364–90.
5 AJ, 63 (1969), p 875; TS No 58 (1980); ILM, 8 (1969), p 679. See generally on the Convention,
Nahlik, AFDI, 15 (1969), pp 24–53; Kearney and Dalton, AJ, 64 (1970), pp 495–561; de la Guardia
and Delpech, El Derecho de los Tratados y la Convención de Viena de 1969 (1970); Rosenne,
The Law of Treaties (1970); (with a valuable account of the legislative history of each article; and
see Briggs, AJ, 65 (1971), pp 705–12), and Transnational Law in a Changing Society (ed
Friedmann, Henkin and Lissitzyn, 1972), pp 202–27; Nascimento e Silva, Conferencia de Viena
sobre o Direito dos Tratados (1971); Ago, Hag R, 134 (1971), iii, pp 297–332; Elias, The Modern
Law of Treaties (1974); Wetzel, The Vienna Convention on the Law of Treaties (1978); Sinclair,
The Vienna Convention on the Law of Treaties (2nd ed, 1984), and AS Proceedings (1984), pp
271–5; Dalton, ibid, pp 276–9.
6 YBILC (1982), ii, pt 2, pp 9–77.
7 ILM, 25 (1986), p 543. See generally § 596.
8 Preamble to the Vienna Convention.
9 Articles 1 and 3: these agreements are those concluded between states and other subjects of
international law or between such other subjects, and agreements not in written form. See also the
Resolution relating to Art 1 of the Convention adopted by the Conference. However, see, as to the
law relating to treaties between states and international organisations, or between two such
organisations, n 7.
10 Article 4. See McDade, ICLQ, 35 (1986), pp 499–511; and § 11, n 16.
16 Military and Paramilitary Activities Case, ICJ Rep (1986), pp 14, 94. See generally on treaties
declaratory of customary international law, Villiger, Customary International Law and Treaties
(1985), pp 237–88.
Even before the treaty enters into force, either generally or for the forum state, the customary rule
embodied in it will accordingly apply as a rule of that nature: see eg Querouil v Breton (1967), ILR,
70, p 388; the Golder Case (1975), ILR, 57, at pp 213–14; Young Loan Arbitration (1980), ILR, 59,
at p 529.
On the continuing application to treaties concluded before the entry into force of the Vienna
Convention on the Law of Treaties of rules of the customary international law of treaties
notwithstanding that they have been repeated in the Vienna Convention itself, see Art 4 of that
Convention (see § 581, n 10), and McDade, ICLQ, 35 (1986), pp 499–511.
11 On which see Vierdag, AJ, 76 (1982), pp 779–801.
12 A similar provision is included in Art 5 of the Vienna Convention of 1986. And see § 629, n 4.
4 However, in the case concerning Certain Expenses of the United Nations (see previous note),
the ICJ treated the UN Charter as a multilateral treaty and applied to it normal rules of treaty
interpretation (as it had in earlier cases involving interpretation of the Charter). On the
interpretation of constitutional treaties see Hexner, AJ, 53 (1959), pp 341–70; Gordon, AJ, 59 (1965),
pp 794–833; Mann, BY, 43 (1968–69), pp 1–20; and, generally, Rosenne, Developments in the Law
of Treaties 1945–1986 (1989), pp 181–258. See also § 632, n 13 and § 633, n 17. Note also the
cautionary observations of Judge Fitzmaurice in National Union of Belgian Police Case (1975), ILR,
57, pp 262, 292–5.
13 See Sinclair, ICLQ, 19 (1970), pp 49–50; Briggs, AJ, 73 (1979), pp 470–73.
14 See § 583.
1 As to international agreements to which one or more international organisations are parties, see
the Convention on the Law of Treaties between States and International Organisations or between
International Organisations 1986 (ILM, 25 (1986), p 543): Article 2.1(a) defines such agreements as
‘treaties’ in terms modelled on those of the definition in the Vienna Convention of 1969. See § 595
as to agreements with less than fully sovereign states.
2 Article 2(1)(a). ‘While the concept of “treaty” used in the Convention is restricted in its scope,
certain of the provisions of the Convention have analogous application to international agreements
in general which are governed by international law’: BP Exploration Co (Libya) Ltd v Government
of the Libyan Arab Republic (1974), ILR, 53, pp 297, 332 (said in relation to a concession
agreement).
As to the meaning of the terms ‘treaty’ and ‘agreement’ for purposes of Art 102 of the Charter, see
§ 663, n 1.
1 In 1946 the First General Assembly laid down detailed rules concerning the registration and
publication of treaties. They provide, inter alia, that registration shall not take place until the treaty
or international agreement has come into force between two or more of the parties; that registration
relieves all other parties of the obligation to register; that the UN shall register ex officio every
treaty or agreement to which it is a party; that a specialised agency may effect registration in some
cases: GA Res 97 (I) (1946), as amended by GA Res 364B (IV) (1949) and 482 (V) (1950),
published as a consolidated text in UNTS, 76, p xviii; and later amended again by GA Res 33/141
(1978).
For an analysis of the terms ‘treaty’ and ‘agreement’ for purposes of registration under Art 102 see
Brandon, AJ, 47 (1953), pp 49–69; Rosenne, Hag R, 86 (1954), pp 425–30; and note the
Secretariat’s practice of including, in the term ‘agreement’, ‘unilateral engagements of an
international character which have been accepted’ (UNTS, 1, p xvi): see also § 582.
Article 2 of the regulations requires the registration of all subsequent actions effecting changes in a
treaty, such as termination or denunciation, although the sanction imposed by Art 102 of the
Charter does not apply in respect of such subsequent actions. See UN Juridical YB (1976), pp 208–
9; ibid (1978), pp 197–8. A treaty can be registered even if, by the time of registration, it has
already terminated: UN Juridical YB (1975), pp 194–5. As to the situation which arises when a treaty,
which refers to an earlier treaty, is submitted for registration even though the earlier treaty has not
been registered, and the implications of Art 102.2 for this situation, see UN Juridical YB (1979), pp
195–7. A non-party to a treaty can register a treaty if designated as depositary by the parties: UN
Juridical YB (1974), pp 192–3. So can an international organisation: ibid, pp 193–4.
For a case study of the registration of a particular series of instruments see Tabory, ICLQ, 32
(1983), pp 981–1003, as to the Egypt-Israel Peace Treaty 1979 and the various documents
associated with it; see also UN Juridical YB (1979), pp 195–7.
3 Volume I of 8th ed of this work stated that ‘International treaties are agreements, of a contractual
character, between States, or organisations of States, creating legal rights and obligations between
the parties’ (p 877). See also F A Mann, BY, 33 (1957), at pp 30–33; Barberis, AFDI, 30 (1984), pp
239, 248–60.
4 See ILC Commentary (Treaties), Art 2, paras (2)–(4): YBILC (1966), ii, p 187. Whether an
instrument constitutes an international agreement may, for purposes of municipal law, be a matter
for determination by the executive branch of government: see Maison Moraly and Société Moraly
(1969), ILR, 52, p 406.
5 See § 586.
6 Article 3(b) and (c). Thus the definition is not inconsistent with the decision of the ICJ in the South
West Africa Cases that ‘the Mandate, in fact and in law, is an international agreement having the
character of a treaty or convention’ (ICJ Rep (1962), p 330; see also the Namibia (Legal
Consequences) Advisory Opinion, ICJ Rep (1971), pp 46–7), or its acceptance of a similar
characterisation of Trusteeship Agreements by both parties in the Northern Cameroons Case (ICJ
Rep (1963), p 15): but note the joint Dissenting Opinion of Judges Spender and Fitzmaurice in the
former case, at pp 473–503. In the Anglo-Iranian Oil Co Case the UK argued that a concession
agreement between the company and the Iranian Government partook of a treaty character
because of the circumstances of its conclusion (involving the League of Nations): the ICJ rejected
this argument (ICJ Rep (1952), at p 112). For comment on the issues involved, see Fitzmaurice, BY,
33 (1957), pp 238–50; and see generally, § 12, n 12, and § 408, as to concession agreements, and
other agreements between states and private parties.
See also the Vienna Convention of 1986 referred to at n 1, as regards treaties concluded by
international organisations.
12 Disputes between states and private corporations (often multinational corporations) often turn
on what is the appropriate law applicable to the substance (as opposed to the lex arbitrationis), in
the absence of a choice of law clause in the contract, or on the interpretation of such a clause
where there is one, against the background of the national law of the state concerned. The choice
of law clause might itself invoke general principles of law, or those principles might be applied by
tribunals as providing the appropriate legal basis for the award. For discussion of the issues arising
in this context see Jessup, Transnational Law (1956), pp 1–16; McNair, BY, 33 (1957), pp 1–19; F A
Mann, BY, 33 (1957), pp 20–51, AJ, 54 (1960), pp 572–91, BY 42 (1967), pp 1–37, and Rev Belge, 11
(1975), pp 562–7; Verdross in Varia Juris Gentium (1959), pp 355–62; Jennings, BY, 37 (1961), pp
156–82; Hyde, Hag R, 105 (1962), i, pp 271, 288–331; Weil, Hag R, 12 (1969), iii, pp 95–240;
Goldschmidt, Hag R, 136 (1972), ii, pp 203, 233–61 (and, generally, on transactions between states
and public entities, and private firms, pp 203–330); Geiger, ICLQ, 23 (1974), pp 73, 80ff; UN
Juridical YB, 1976, pp 159–76, esp. 160–1; Luzzatto, Hag R, 157 (1977), iv, pp 9, 87–100;
Verhoeven, Rev Belge, 14 (1978–79), pp 209–30; Wengler, ibid, pp 415–24; Kuusi, The Host State
and the Transnational Corporation (1979); Giardina, Ital YBIL, 5 (1980–81), pp 147–70; Delaume,
AJ, 75 (1981), pp 784–819, especially pp 796–809; Greenwood, BY, 53 (1982), pp 27–81; Barberis,
Hag R, 179 (1983), i, pp 189–206; Lalive, Hag R, 181 (1983), iii, pp 9–284; Redfern, BY, 55 (1984),
pp 65–110, and Redfern and Hunter, International Commercial Arbitration (1986), esp. ch 2;
Sacerdoti, Ital YBIL, 7 (1986–87), pp 26–49; Gray, Judicial Remedies in International Law (1987),
pp 188–93; Bowett, BY, 59 (1988), pp 49, 50–9; Crook, AJ, 83 (1989), pp 278, 292ff; Paasivirta, BY,
60 (1989), pp 315–50.
See generally on transactions between states (and public entities) and foreign private parties,
Böckstiegel, Der Staat als Vertragspartner Auslandischer Privatunternehmen (1971); Seidl-
Hohenveldern, Lalive and van Hecke, Rev Belge, 11 (1975), pp 567–84; Sacerdoti, I contratti tra
stati e stranieri nel diritto internazionale (1972); Bettems, Les Contrats entre Etats, et personnes
privées étrangères (1988); Rigaux, Hag R, 213 (1989), i, pp 9, 207–37. See also § 408, n 14.
Cases in which these issues have fallen for decision include Petroleum Development Ltd v Sheikh
of Abu Dhabi, ILR, 18 (1951), No 37, at p 149; Ruler of Qatar v International Marine Oil Co Ltd, ILR,
20 (1953), p 534; Saudi Arabia v Arabian American Oil Company, ILR 27 (1958), pp 117, 153–7,
165–72; Sapphire International Petroleum Ltd v National Iranian Oil Co (1963), ILR, 35, pp 136,
168–76, 182–3 (on which, and generally, see Lalive, ICLQ, 13 (1964), pp 987–1021); BP
Exploration Co (Libya) Ltd v Government of the Libyan Arab Republic (1973–74), ILR, 53, p 297;
Texaco Overseas Petroleum Co v Government of the Libyan Arab Republic (1975–77), ILR, 53, p
389; Libyan American Oil Co v Government of the Libyan Arab Republic (1977), ILR, 62, pp 140,
173–6; Re Revere Copper and Brass Inc and Overseas Private Investment Corpn (1978), ILR, 56,
pp 258, 271ff; AGIP Spa v Government of the Popular Republic of the Congo (1979), ILR, 67, pp
319, 338; Government of Kuwait v American Independent Oil Co (1982), ILR, 66, pp 518, 559–62
(on which see Burdeau, AFDI, 28 (1982), pp 454–70); SPP (Middle East) Ltd v Arab Republic of
Egypt (1983), ILM, 22 (1983), pp 752, 768–71 (reversed on grounds not relevant in the present
context: ILM, 23 (1984), p 1048); Mobil Oil Iran Inc v Islamic Republic of Iran, AJ, 82 (1988), p 136.
For the view that certain provisions of the Vienna Convention on the Law of Treaties 1969 apply to
concession agreements see BP Exploration Company (Libya) Ltd v Government of the Libyan
Arab Republic (1973–74), above, at p 332. But note that in the Anglo-Iranian Oil Co Case, ICJ Rep
(1952), p 93, the ICJ held that the concession contract between the company and Iran did not
constitute a treaty. On the nature of concession agreements see § 408, n 12.
Article 13 of the Procedures for the Settlement of Disputes under Art XVIII of the Agreement of 1971
relating to the International Telecommunications Satellite Organisation and under Art 20 of the
Operating Agreement of 1971 relating to that organisation provides for the arbitral tribunal to base
its decisions only on those two 1971 agreements and on ‘generally accepted principles of law’.
Note also Art 42 of the Convention on the Settlement of Investment Disputes between States and
Nationals of Other States 1965, on which see generally § 407, n 49. Article 42 requires the tribunal
to apply, if the parties have not agreed the applicable law, the law of the state party to the dispute
‘and such rules of international law as may be applicable’.
7 For discussion of a somewhat unusual decision of the Federal German Supreme Court holding an
international agreement to be subject to municipal law, see F A Mann, AJ, 68 (1974), pp 490–96.
States may, of course, intend to conclude agreements subject to municipal law, but these will be
more in the nature of private law contracts than international treaties. See F A Mann, BY, 21 (1944),
pp 11–33; BY, 35 (1959), pp 34–57; and Studies in International Law (1973), pp 241–55 (in which
volume, at pp 179–210 and 211–40, both previous articles are reprinted). And see ICLQ, 10 (1961),
pp 575–6.
As to agreements between states and private parties, particularly private corporations, see § 12, n
12.
8 For its administrative purposes connected with the registration of treaties the UN Secretariat
does not regard agreements between the UN and non-sovereign bodies as treaties, nor
agreements between states and certain organisations which lack treaty-making capacity. As to
agreements between states and dependent territories see § 84, n 14ff. The Allied occupation
authorities in Europe after the Second World War were held not to have the character of a foreign
state, with the result that an agreement concluded between the Allied High Commission and the
(West) German Government was held not to constitute a treaty with a foreign state, although it
‘partakes of International Law’: Petersberg Agreement Case, ILR, 19 (1952), No 95. See also OMA v
Koerperich, ILR, 18 (1951), No 117.
14 A territory which is self-governing in the matters to be dealt with at a conference called by the
UN Economic and Social Council, but which is not responsible for the conduct of its foreign
relations, may be invited to participate in the conference if the state responsible for its foreign
relations approves and if the Council decides in favour of such participation: GA Res 366 (IV)
(1949). See also Deener in International and Comparative Law of the Commonwealth (ed Wilson,
1968), pp 40–62.
9 For a detailed discussion of the subject see M Jones, BY, 21 (1944), pp 111–22. It will be noted
that the opening passage of the Preamble to the Charter of the United Nations is: ‘We, the peoples
of the United Nations …’ The Preamble to the Constitution of the Food and Agriculture Organisation
of the United Nations begins: ‘The Nations accepting this Constitution …’
In Loschetter v Public Prosecutor (1960), ILR, 31, p 425, a Protocol signed by Ministers of
Agriculture was held to be still a valid international agreement even though the constitution of the
state concerned required treaties to be signed by the Head of State; in United States of America v
Novick (1960), ILR, 32, p 275, a treaty concluded in the name of ‘Canada’ was held to have been
validly concluded notwithstanding that the relevant national law referred to treaties concluded by
‘Her Majesty’. Cf Re Chatelain (1965), ILR, 47, p 113, denying the status of an international
agreement to an agreement signed by the heads of two states’ fisheries services.
10 See, eg as to the use by the USA of ‘executive agreements’ in a sense different from ‘treaty’ as
used in the Constitution, § 19, n 95, and in particular the judgment of the Supreme Court in
Weinberger v Rossi, ILM, 21 (1982), p 660. See also extracts from the Congressional Record (9
October 1975), and the position of the State Department Legal Adviser (6 October 1975), on
various US-Israel arrangements concluded in 1975: ILM, 14 (1975), pp 1585–96.
For a time some of the British Dominions attached importance to being able to conclude treaties
without resorting to the somewhat cumbrous procedure of receiving authority for the issue of Full
Powers under the Great Seal: see § 78, n 8.
95 US v Guy W Capps, Inc, ILR, 20 (1953), p 412. ‘Treaties’ are concluded by the President, acting
with the advice and consent of the Senate (Art II, s 2(2) of the Constitution). The authority of the
Senate is thus not required for the conclusion of executive agreements, although a law passed in
1972 (known as the Case Act: ILM, 11 (1972), p 1117) requires international agreements, other
than treaties, entered into by the USA to be transmitted to Congress within 60 days of their entry
into force. See also the Senate Committee on Foreign Relations’ Report on the International
Agreements Consultation Resolution, and the text of that Senate Resolution, at ILM, 18 (1979), p 82.
As to the role of the Senate in connection with the conclusion of treaties see also § 607, nn 3, 10
and 11. See further, § 636, n 4, as to executive agreements. Where a statute uses the term ‘treaty’,
it is a matter of interpretation in each case whether that term includes not only treaties in the
narrow sense of the term but also such international agreements as take the form of executive
agreements: Weinberger v Rossi, ILM, 21 (1982), p 660. For a decision holding the Universal Postal
Convention not to be a treaty (or an executive agreement), but to have the effect of only an
administrative regulation, and as such incapable of prevailing over US law, see Williams v Blount
(1970), ILR, 56, pp 234, 240.
8 By 1945 Canada, Australia, New Zealand, South Africa and Ireland were all sending diplomatic
and, some of them, consular representatives to various countries. Some of them, by acquiring the
Great Seal and thus making it possible to dispense with the royal signature, secured machinery for
the more expeditious exercise of their undisputed power of concluding treaties. Canada and South
Africa acquired a Great Seal in 1932; Australia did the same, though for more limited purposes, in
1939.
As to the developments in Australia’s position see Latham, The Law and the Commonwealth
(1949); O’Connell, International Law in Australia (1965), pp 1–33; Sawer in ibid, pp 35–51.
Much of the history of Canada’s constitutional development was judicially considered in detail in the
litigation accompanying the ‘patriation’ of the Canadian constitution in 1982: see R v Secretary of
State for Foreign and Commonwealth Affairs, ex parte India Association of Alberta [1982] QB 892,
on which see Crawford, BY, 53 (1982), pp 253–9. See also Manuel v Attorney-General, Noltcho v
Attorney-General [1983] 1 Ch 77; and § 22, n 7. See also the First, Second and Third Reports of
the House of Commons Foreign Affairs Committee in 1980 and 1981 on the British North America
Acts (HC (1980–81) 42; HC (1980–81) 295; HC (1981–82) 128), and the observations by the
Secretary of State for Foreign and Commonwealth Affairs on the First Report (Cmnd 8450). For
earlier consideration of Canada’s position see Corbett and Smith, Canada and World Politics
(1928); Ollivier, Problems of Canadian Sovereignty (1945); Ewart, Canadian Historical Review, 9
(1928), pp 194–205; Russell, AS Proceedings (1928), pp 19–26; Rowell, Can Bar Rev, 8 (1930), pp
570–86; Round Table, 25 (1934–35), pp 100–12; Scott, Foreign Affairs (USA), April 1937, pp 429–
42; Elkin, RG, 45 (1938), pp 658–93. On Canada’s power to perform treaty obligations see
MacDonald, Can Bar Rev, 11 (1933), pp 581–99, 664–80.
It was stated in the British Parliament on 7 May 1986 that South Africa was ‘in practice’ independent
and sovereign by 1920, and was recognised formally as such in 1926: Parliamentary Debates
(Lords), vol 474, col 805.
11 See, eg the Agreement concerning Telecommunications concluded on 15 December 1936,
between the Telegraph Administrations of Denmark, Finland, Iceland, Norway, and Sweden:
Hudson, Legislation, vii, p 492; or the Agreement between the post office authorities of those
countries of 31 December 1934, concerning postal exchanges: ibid, vi, p 365. However, for an
agreement between the Postmaster-General of the UK, the Danish General Directorate of Posts and
Telegraphs, the Icelandic General Directorate of Posts and Telegraphs and the Great Northern
Telegraph Company Ltd, see comment in ICLQ, 10 (1961), p 575, but note Williams v Blount
(1970), ILR, 56, p 234, treating the Universal Postal Convention as only having the effect of an
administrative regulation (at p 240), but semble within the framework of US law rather than
international law. For purposes of national law an agreement between the heads of the French and
Swiss fisheries services has been held not to constitute a treaty, as has an agreement between the
ministries of justice of the Federal Republic of Germany and Austria: Re Chatelain (1965), ILR, 47, p
113; Prosecution for Misdemeanours (Germany) Case, ILR, 22 (1955), p 560. In the case of
interdepartmental agreements it is essential, if they are to be regarded as treaties, that their effect
should be to bind the states concerned.
12 See, eg an Agreement cited by M Jones, BY, 21 (1944), p 119, n 4, between the British Air
Ministry and the Austrian Federal Ministry of Commerce, based on Art 1, para 2 of the Air Navigation
Convention concluded between the two countries in 1933.
13 Article 3; see YBILC (1982), ii, pt 2, p 22, para (2). See also §§ 459, n 4, 577 and 585, n 2. In
United States v Gonzalez, AJ, 80 (1986), p 653, a conversation by telephone was held to constitute
an ‘arrangement’ with another government.
4 The Court held, in effect unanimously, that a declaration on 22 July 1919 by Mr Ihlen, the
Norwegian Foreign Minister, recorded by him in a minute and informing the Danish Minister that the
Norwegian Government would not make any difficulties in the settlement of the recognition of
Danish sovereignty over Eastern Greenland, was binding upon Norway. The Court attached
importance to the fact that the declaration was made on behalf of the Government in regard to a
question falling within the province of the Foreign Minister in reply to a request of the diplomatic
representative of Denmark. PCIJ, Series A/B, No 53, p 71; and see p 91 for the observations of
Judge Anzilotti; and Castberg, RI, 3rd Series, 5 (1924), pp 261–3; Garner, AJ, 27 (1933), pp 493–7,
for comment and citation of some precedents; and Hambro in Fundamental Problems of
International Law: Festschrift für Jean Spiropoulos (1957); Sørensen, Hag R, 101 (1960), iii, pp 54–
8. Note also the significance attached by the tribunal in the Beagle Channel Arbitration (1977), ILR,
52, p 93, to speeches made by the Argentine and Chilean Foreign Ministers in their respective
National Assemblies (at pp 186–91, 198–9).
In State of Russia v National City Bank of New York the USA Circuit Court of Appeals held that the
Minister for Foreign Affairs of a state has the right to alienate state property by the execution of an
assignment in his name: (1934) 69 F (2nd) 44, and for comment see ZöV, 4 (1934), p 695. See also
USAFFE Veterans Association Inc v The Treasurer of the Philippines, AJ, 50 (1956), pp 686–9.
See generally as to the power of a Foreign Minister to bind his state, Sørensen, Hag R, 101 (1960),
iii, pp 63–5; Blix, Treaty-Making power (1960), pp 26–41; Art 7.2 of the Vienna Convention on the
Law of Treaties 1969 (see next n). See also § 577, n 9ff.
2 Article 3. See generally on oral agreements, Sørensen, Hag R, 101 (1960), iii, at pp 54–8; McNair,
Treaties, pp 7–11, and § 582, n 13. On the binding character of the Ihlen declaration and other
unilateral statements, see § 459, n 4. Note the observation in the Joint Dissenting Opinion of Judges
Hackworth, Badawi, Carneiro and Rau in the case concerning Rights of United States Nationals in
Morocco that ‘usage and sufferance are only different names for agreement by prolonged conduct,
which may be no less binding than agreement by the written word’: ICJ Rep (1952), p 220. One
should probably distinguish the question whether oral statements, or unilateral declarations, create
a legal obligation, from the question whether they constitute treaties or agreements: see the
Separate Opinions of Judges Spender and Fitzmaurice in the South West Africa Cases (Preliminary
Objections), ICJ Rep (1962), at pp 474–9.
14 See vol I of 8th ed of this work, § 508a. See also Fawcett, BY, 30 (1953), pp 381–400.
15 See ILC Commentary (Treaties), Art 2, para (6): YBILC (1966), ii, p 189.
16 South West Africa Cases (Preliminary Objections), ICJ Rep (1962), at pp 331–2. A contrario,
non-registration may be taken to indicate an intention to enter into only a non-binding engagement,
or as supporting statements to that effect: see the Joint Dissenting Opinion of Judges Spender and
Fitzmaurice, ibid, p 503.
17 See § 437.
18 See, eg Fawcett in YB of World Affairs (1951), pp 286–9, with regard to the Havana Charter of
the International Trade Organisation of 1948 and Mann, BY, 26 (1949), pp 264–5 with regard to
certain declarations of monetary policy. As to declarations in general, see § 577. Two acts, in
themselves unilateral, may taken together establish a consensual relationship, as with Declarations
accepting the ‘optional’ clause for the jurisdiction of the ICJ: see Rights of Passage Case
(Preliminary Objections), ICJ Rep (1957), at pp 145–7.
A growing practice is to adopt international ‘Codes of Conduct’ on various matters, such as the
‘Guidelines for Multinational Enterprises’ adopted by the OECD in 1976 (ILM, 15 (1976), p 297), and
the Code of Conduct for Liner Conferences 1974 (but note that this Code was embodied in a
convention): see Odier, AFDI, 25 (1979), pp 686–92. A UN Code of Conduct for Transnational
Corporations has been under discussion for a number of years, and ‘substantial provisional
understanding on [its] contents’ has been reached (GA Res 45/186 (1990)): see on this draft Code
Francioni, Ital YBIL, 3 (1977), pp 143–70; Spröte, Germ YBIL, 33 (1990), pp 331–48. On these and
other codes and on the general question of the voluntary or binding nature of such codes, see
Coonrod, Harv ILJ, 18 (1977), pp 273–307; Jeffries, ibid, pp 309–42; Schwartz, International
Lawyer, 11 (1977), pp 529–36; Davidow and Chiles, AJ, 72 (1978), pp 247–71; Decaux, AFDI, 29
(1983), pp 81–97. And see § 380, n 15.
15 The position of so-called ‘multinational companies’ has been much considered in recent years.
See Lados-Lederer, International Non-Governmental Organisations and Economic Entities (1963);
Mann, BY, 42 (1967), pp 145–74; Angelo, Hag R, 125 (1968), iii, pp 443–600; Rolfe and Damm, The
Multinational Corp (1970); Jenks, in Transnational Law in a Changing Society (eds Friedmann et
al, 1972), pp 70–83; Rubin, AJ, 68 (1974), pp 475–88; Seidl-Hohenveldern, YB of World Affairs, 29
(1975), pp 301–12. The position and impact of multinational corporations has been considered by
the UN, especially the Economic and Social Council: see the Report of the Secretary-General, 14
June 1974 (UN Doc E/5500; ILM, 13 (1974), p 791), and the work of the Commission on
Transnational Corporations set up by the Economic and Social Council in 1974 (Res 1913 (LVII)
(1974)). The Commission has elaborated a Draft Code of Conduct on Transnational Corporations,
which is still under consideration. For drafts see ILM, 22(1983), pp 177, 190, 203, and 23 (1984), p
636. See Francioni, Ital YBIL, 3 (1977), pp 143–70; Baade, Germ YBIL, 22 (1979), pp 11–52; Horn
(ed), Legal Problems of Codes of Conduct for Multinational Enterprises (1980); Rahman, Indian JIL,
28 (1988), pp 222–35. As to the protection of multinational companies, see § 152, n 16.
The problems of ascribing to a company which has many international ramifications a single
nationality is illustrated by the position of the Ottoman Bank, which has been held in France to be a
Turkish national and subject to Turkish law as regards its operations (see Bakalian and
Hadjithomas v Ottoman Bank (1965), ILR, 47, p 216), but was treated as a British national for
purposes of the Anglo-Egyptian Agreement on Commercial and Financial Relations 1959 (TS No 35
(1959)): see Annex E of the Agreement, and Art 1(2) of the Foreign Compensation (Egypt)
(Determination and Registration of Claims) Order 1962 (SI 1962 No 2187). See also Compagnie
Financière de Suez et de L’Union Parisienne v United States (1974), ILR, 61, p 408, as to the Suez
Canal Company.
A distinction may need to be made between a multinational company (involving, essentially, a
single legal person in which there is a broad spread of different national interests) and a
consortium, or joint venture, involving two or more corporations in a collaborative enterprise
regulated by agreement between them but with each retaining its distinct legal character and not
attributing any separate legal personality to the consortium itself. For an example of an international
claim involving a consortium see Morrison-Knudsen Pacific Ltd v Ministry of Roads and
Transportation, AJ, 79 (1985), p 146.
19 As to certain Declarations accepting the compulsory jurisdiction of the ICJ, see § 577, nn 21–4.
21 See YB of the ICJ (1957–8), p 199 (as to France) and (1984–5), pp 99–100 (as to the USA).
20 The same applies to treaties such as the North Atlantic Treaty of 4 April 1949 (see § 665), in
which each party agrees to assist others by ‘such action as it deems necessary’.
21 The ICJ has noted that, for the creation of legal relations, the principal emphasis is placed on
the intentions of the states concerned, given that ‘the question of form … is not a domain in which
international law imposes any special or strict requirements’: Nuclear Tests Case, ICJ Rep (1974),
pp 267–8; see also the Temple of Preah Vihear Case, ICJ Rep (1961), pp 31–2.
See generally Münch, ZöV, 29 (1969), pp 1–11; Schachter, AJ, 71 (1977), pp 296–304, and Hag R,
178 (1982), v, pp 123–32; Virally, Annuaire, 60 (1) (1983), pp 166–257, 328–57; Tunkin, Law and
Force in the International System (1985), pp 129–44; Aust, ICLQ, 35 (1986), pp 787–812;
Mullerson, AJ, 83 (1989), pp 509–12; Rosenne, Developments in the Law of Treaties 1945–1986
(1989), pp 85–123; and see § 586, n 8.
8 In this respect it may be doubted whether the ILC was wholly correct in stating in Commentary
(Treaties), Art 2, para (2) (YBILC (1966), ii, p 188) that, inter alia, a memorandum of understanding
was ‘undoubtedly’ an international agreement subject to the law of treaties. An ‘understanding’
may well be an understanding and no more, intended and so worded as to be something less than
an agreement creating legal rights and obligations. Taken in its context the Commentary was
primarily making the point that there are many kinds of single, though informal, instruments which,
while not ‘treaties’ in a narrow sense, are nevertheless instruments to which the law of treaties can
apply (and often does), thus supporting the ILC’s decision to use the term ‘treaties’ in a generic
sense. See generally on memoranda of understanding, Aust, ICLQ, 35 (1986), pp 787–812. See also
AJ, 81 (1987), pp 939–40, as to the non-binding status of the understandings reached by President
Kennedy and Chairman Kruschev, by which the Cuban missile crisis of 1962 was resolved. See
also Opinion 1/75 [1975] ECR 1355 holding an understanding concluded within the OECD to be,
given its substantive content, an agreement. See also § 582, n 21. Note also § 582, n 19, and § 577,
nn 21–4, as to undertakings leaving so great an element of discretion as to make the existence of
legal rights and obligations questionable. That an instrument does not constitute a treaty does not
mean that it does not have legal effect: see Interpretation of the American Declaration of the
Rights and Duties of Man, ILM, 29 (1990), pp 379, 390–1.
22 See § 586, n 8.
23 See, eg Cohen, AS Proceedings, 66 (1972), pp 110–11.
24 See Eisemann, Clunet, 106 (1979), pp 326–48. Examples of ‘gentleman’s agreements’ are that
which formed the basis for scientific cooperation in Antarctica during the International Geophysical
Year 1957–58 without prejudicing disputed questions of sovereignty (see Auburn, Antarctic Law
and Politics (1982), pp 89–93); and that which recorded certain voting arrangements to apply
during the UN Law of the Sea Conference (see § 575, n 13).
As to the possible emergence of the ‘package deal’ as an informal form for reaching agreements
see Caminos and Molitor, AJ, 79 (1985), pp 871–90, with particular reference to the work of the UN
Conference on the Law of the Sea.
13 Consensus is in practice, even without express provision to that effect, often the basis for
decisions taken in many international fora. For a provision for a conference’s decisions to be taken
by consensus, see para 69 of the Final Recommendations of the Helsinki Conference on Security
and Co-operation in Europe 1973 (AJ, 68 (1974), at p 191). Consensus also played a major role in
the work of the Third UN Conference on the Law of the Sea 1973–82, by virtue of the ‘Gentleman’s
Agreement’ endorsed by the Conference on 27 June 1974. See Vignes, AJ, 69 (1975), pp 119–29;
Sohn, ibid, pp 310, 333–52; Treves, Ital YBIL, 2 (1976), pp 39–60; Barile, Ital YBIL, 5 (1980–81), pp
3–13; Buzan, AJ, 75 (1981), pp 324–48; Evensen, Hag R, 199 (1986), iv, pp 483–6. See also Rule
35 of the Rules of Procedure of the Preparatory Commission for the International Sea-Bed Authority
and for the International Tribunal for the Law of the Sea: ILM, 22 (1983), p 1352.
For treaty provisions calling for decisions to be taken by consensus see Art 161 (8)(d) of the
Convention on the Law of the Sea 1982, and Art 22.2 of the Convention on the Regulation of
Antarctic Mineral Resource Activities 1988 (§ 257, n 5); both Conventions define ‘consensus’ as
meaning ‘the absence of formal objection’: Arts 161(8)(e) and 22.5 respectively. See generally on
consensus procedures for the taking of decisions Jenks, Cambridge Essays in International Law
(1965), pp 48–63; Cassan, AFDI, 20 (1974), pp 456–85; UN Juridical YB (1974), pp 163–4; Sperduti,
Ital YBIL, 2 (1976), pp 33–8; Ballreich, in Völkerrecht als Rechtsordnung (Festschrift Mosler) (ed
Bernhardt et al, 1983), pp 1–24; Zemanek, in The Structure and Process of International Law (eds
Macdonald and Johnston, 1983), pp 857–87; Lacharrière, AFDI, 14 (1968), pp 9–14. An interesting
provision is included in the Montreal Protocol on Substances that Deplete the Ozone Layer 1987
(ILM, 26 (1987), p 1541), Art 9 of which provides for the parties to reach agreement by consensus
on certain decisions, failing which and as a last resort, the decision may be taken by a specified
majority, to be binding on all parties.
25 See § 577.
1 See Heffter, §§ 89–91; Bluntschli, §§ 442–5; Martens, i, § 113; Ullmann, § 82; Wheaton, § 268
(following Vattel, ii, § 169); Rivier, ii, pp 106–18; Westlake, i, p 294; Hatschek, p 228; Rapisardi-
Mirabelli, RI, 3rd series, 4 (1923), pp 653–67; McNair, BY, 11 (1930), pp 100–18; de Caviedes, Hag
R, 118 (1966), ii, pp 117–27; Dehaussy, Recueil d’études de droit international en hommage à
Paul Guggenheim (1968), pp 305–26; and many others.
2 The particular problems to which multilateral treaties give rise in these various respects are dealt
with in the appropriate paragraphs in the following pages. See generally as to multilateral treaties
Lachs, Hag R, 92 (1957), ii, pp 236–333; Sprudzs, AJ, 66 (1972), pp 365–76. Note also the work
done in the Sixth Committee of the UN General Assembly on the Multilateral treaty-making process,
particularly the Report of the Secretary-General (A/35/312, and Corr 1 (1980)), the views of
governments and the ILC (ibid, addenda 1 and 2), further Reports by the Secretary-General
(A/36/553 and A/37/44 (1981, 1982)), the Report of the Working Group established by the Sixth
Committee (A/C 6/39/L12, Annex), and GA Res 39/90 (1984). See also Review of the Multilateral
Treaty-Making Process (UN Legislative Series, ST/LEG/SERIES B/21 (1985)); Rosenne,
Developments in the Law of Treaties 1945–1986 (1989), pp 390–8.
3 See also §§ 11, n 9; § 16 (as to ‘law-making’ powers of international organisations); and § 32 (as
to the revision of international law). In so far as the expression ‘law-making treaties’ is used as
synonymous with ‘international legislation’ it must be remembered that the latter is merely a
metaphor. There is as yet no international legislature proper in the international sphere. As to the
role, and weaknesses, of treaties as a basis for a legal system and a mechanism for securing
change, see Simma in The Structure and Process of International Law (eds MacDonald and
Johnston, (1983), pp 485–512.
So-called law-making treaties have been concluded ever since international law came into
existence. It was not until the nineteenth century, however, that they came to acquire world-wide
importance, beginning with the Final Act of the Vienna Congress 1815. The following 19th century
examples may also be mentioned: the Treaties of London of 1831 and 1839 providing for the
neutralisation of Belgium (see § 96, n 2); the Declaration of Paris 1856 (see vol II of 7th ed of this
work, § 177); the Geneva Convention of 1864 for the amelioration of the conditions of the wounded
in armies in the field (see vol II of 7th ed of this work, § 118; and the Final Act of the Hague Peace
Conference 1899 (see ibid, § 68 (4)). For a comprehensive list see Rühland, System der
völkerrechtlichen Kollektivverträge (1929). See also Hudson’s International Legislation (1931–
50), of which nine volumes have been published. The ILC considered dealing with this kind of treaty
as subject to certain special considerations, and in its 1962 draft Articles on the Law of Treaties
defined a ‘general multilateral treaty’ as ‘a multilateral treaty which concerns general norms of
international law or deals with matters of general interest to States as a whole’. For various reasons
it dropped this provision from its final draft Articles on the Law of Treaties, as explained in ILC
Commentary (Treaties) Art 12: YBILC (1966), ii, pt 2, p 199.
Note also the emphasis sometimes placed on human rights treaties as not being ‘multilateral
treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the
mutual benefit of the contracting States’ but rather treaties whose object is the protection of
individuals, even as against the state of their own nationality as well as all other contracting states:
see, eg Effect of Reservations Opinion (1982), ILR, 67, pp 559, 568; Restrictions to the Death
Penalty (Advisory Opinion OC-3/83) (1983), ILR, 70, pp 449, 466.
9 See § 583. On recent developments in the international law-making process generally, see
Gotlieb, Hag R, 170 (1981), pp 131–55.
The convenience of the term ‘law-making treaties’ may become a source of confusion if we fail to
keep in mind that: (a) all treaties are in a real sense law-making inasmuch as they lay down rules
of future conduct for the parties in a way similar to that in which a private contract lays down the
law governing the conduct of the parties in the future; (b) the term ‘law-making’ does not imply that
there exists among states international legislation in the accepted meaning of the term, namely, the
enactment of laws overriding the will of a dissenting minority.
See, on the use of the term ‘international legislation’, McNair, Iowa Law Rev, 19 (1933–34), pp 177–
89; Hudson, Legislation, v, p viii. See also Brierly, Problems of Peace, 5th series (1930), pp 205–
29; McNair, BY, 11 (1930), pp 110, 112–16; Gihl, International Legislation (1937); Starke, BY, 23
(1946), pp 341–6; Engel, AJ, 44 (1950), pp 737–9; Jenks, BY, 29 (1952), pp 107–10 and A New
World of Law? (1969), pp 175–86; Kelsen, Principles of International Law (1952), p 321ff; Ch de
Visscher, RG, 59 (1955), at p 359ff; Lachs, Hag R, 92 (1957), ii, pp 236–333; Schwarzenberger,
Frontiers of International Law (1962), pp 288–96; Shihata, Revue Egyptienne de droit
international, 22 (1966), pp 51–90; Singh, Malaya Law Rev, 12 (1970), pp 277–97, ibid, 13 (1971),
pp 178–92, and ibid, 14 (1972), pp 1–60; Fitzmaurice, Annuaire: Livre du Centenaire (1973), pp
262–75; Morgenstern, BY, 49 (1978), pp 101–17; Jennings, Ius et Societas (ed Wilner, 1979), pp
159–68; Lachs, in Völkerrecht als Rechtsordnung (Festschrift Mosler) (eds Bernhardt et al, 1983),
pp 493–502; and on the concept of legislation in general, Akzin, Iowa Law Rev, 21 (1936), pp 713–
50. It is of interest to note that Scelle, who seems to attach importance to the distinction between
law-making and other treaties, admits in effect that practically all treaties are ‘law-making’: La
Théorie juridique de la révision des traités (1936), p 41. See also § 16, as to the ‘law-making’
powers of international organisations; and § 24ff, as to codification of international law.
2 For details, see 8th ed of this vol, pp 246–8.
4 Nowadays it is unlikely that a small number of states would conclude a treaty possessing a
general law-making character: this was not so formerly, eg the Final Act of the Vienna Congress
1815, was signed by only eight states. See also § 575, n 2. The practice of treaties being concluded
under the auspices of the UN, after extensive preparation by the ILC, may come to be regarded as
putting them in a special category as ‘law-making’ treaties: see Rosenne, Hag R, 86 (1954), pp
281–442, and above, § 574, at n 3; and Dehaussy, Recueil d’études de droit international en
hommage à Paul Guggenheim (1968), pp 305–26.
2 Note the Declaration on Universal Participation in the Vienna Convention on the Law of Treaties
1969, forming part of the Final Act of the Conference, which records the conviction of the
Conference ‘that multilateral treaties which deal with the codification and progressive development
of international law, or the object and purpose of which are of interest to the international
community as a whole, should be open to universal participation’; this conviction was also
embodied in GA Res 2530 (XXIV) (1969), adopting the Convention on Special Missions. For the
Vienna Conference on the Law of Treaties itself, 103 states were represented at the first session in
1968, and 110 at the second session in 1969.
3 The Third UN Conference on the Law of the Sea 1973–82 has attracted much comment in this
context, as a unique experiment in international law-making. See Jennings, ILA Rep (57th
Conference, 1976), pp 622–32; Levy, RG, 84 (1980), pp 7–67; Caminos and Molitor, AJ, 79 (1985),
pp 871–90; Evensen, Hag R, 199 (1986), iv, pp 415–520. See also § 282.
5 Thus, the Hague Conventions regarding the rules of land warfare have been held to have
become generally binding rules of international law: see vol II of 7th ed of this work, § 69a. The
possibility of a rule set forth in a treaty becoming generally binding as a rule of customary
international law is preserved by Art 38 of the Vienna Convention on the Law of Treaties. See
generally, McNair, Treaties, pp 259–71; and see § 11, at n 12ff. As to ‘law-making’ treaties in
relation to state succession, see Jenks, BY, 29 (1952), pp 105–44, and above, § 62, n 12; as to
conflicts between law-making treaties, see Jenks, BY, 30 (1953), pp 401–53. In the North Sea
Continental Shelf Cases the ICJ considered whether the 1959 Geneva Convention on the
Continental Shelf had acquired the status of customary international law, and concluded that this
had not by then happened: ICJ Rep (1969), p 43.
The question has been much discussed whether the UN Law of the Sea Convention 1982 is, at least
in part, applicable as customary international law, or whether, because of the interrelationship
between the various parts of the Convention and between its substantive and procedural
provisions, it is exclusively a contractual treaty giving rise to rights and obligations only as
between the parties. See Lee, AJ, 77 (1983), pp 541–68; and generally § 11, n 3, and § 283.
12 In states where customary international law can apply as part of the law of the land, but treaties
require some legislative action for them to be applicable in municipal law, the question whether a
treaty provision also represents a rule of customary international law is of particular importance.
A general and constant practice of numerous bilateral treaties containing similar provisions may
afford evidence of a rule of customary law in that sense: see the Nottebohm Case, ICJ Rep (1955),
pp 22–3; Lagos v Baggianini, ILR, 22 (1955), pp 533, 536–7; Lauritzen et al v Government of Chile,
ILR, 23 (1956), pp 708, 715–16, 729–30; of The State (Duggan) v Tapley, ILR, 18 (1951), No 109;
Italian National Re-Extradition Case (1970), ILR, 70, pp 374, 376–7. See generally Baxter, BY, 41
(1965–66), pp 275–300, and Hag R, 129 (1970), i, pp 31–104; Doehring, ZöV, 36 (1976), pp 77–95;
Jennings in Ius et Societas (ed Wilner, 1979), pp 159–68; Weil, AJ, 77 (1983), at pp 438–40.
Even an unratified treaty may have some value in this respect: see Re Lechin, AD, 16 (1949), No
1; but cf Re Cámpora, ILR, 24 (1957), p 518, and n 14 below. In any particular dispute the parties
may have expressly or implicitly accepted the rules laid down in a treaty to which they are not
parties, and in such cases the treaty’s rules will apply to them even if they have not become so
generally accepted as to become applicable to them as customary law. But note the warning of the
ICJ against lightly concluding that a state which could have become a party to a treaty but has
chosen not to do so has nevertheless become bound in some other way: North Sea Continental
Shelf Case, ICJ Rep (1969), at p 25.
A notable example of treaty provisions being accepted as acquiring also the character of
customary international law is afforded by certain stipulations of the Hague Conventions relating to
the rules of warfare (see vol II of this work (7th ed), § 69a); and, as regards the transformation of
the Geneva Conventions of 1949 into customary international law, in the light of the Military and
Paramilitary Activities Case, ICJ Rep (1986), p 14, see Meron, AJ, 81 (1987), pp 348–70.
12 See Jenks, BY, 24 (1952), pp 105–44.
3 See de Visscher, RG, 58 (1955), pp 353–69. There are now several authoritative collections of
treaty texts, notably the LNTS (205 vols, 1920–46), and the UNTS (1946 onwards). See also
Hudson, International Legislation (9 vols, 1931–50); Parry, The Consolidated Treaty Series 1648–
1918, comprising approximately 150 vols. Many states publish official collections of treaties entered
into by them: see eg the UK’s Treaty Series from 1892 onwards and the European Communities
Treaty Series from 1974 onwards, and the USA’s Treaties and Other International Agreements (13
vols for the years 1776–1949, thereafter annual vols). See also BFSP (170 vols, covering the period
from 1812 to 1968).
6 Thus, the effect of entering a reservation to such a provision, or denouncing a treaty containing
such provisions, or becoming a party to such a treaty, is different from the effect in relation to a
treaty merely constituting a consensual agreement inter partes. See Weil, AJ, 77 (1983), at pp 438–
40.
7 ICJ Rep (1950), p 133. See also, in particular, the Separate Opinion of Judge McNair, pp 155–7.
See also the Opinion of Judge Lauterpacht in the South West Africa (Petitioners) Case, ICJ Rep
(1956), pp 48–9. See also §§ 88 and 626–7. In the case concerning Certain Expenses of the United
Nations the ICJ regarded the Charter of the UN as ‘a multilateral treaty, albeit a treaty having
certain special characteristics’, but even so applied to its interpretation the usual rules and
principles applicable in general to the interpretation of treaties: ICJ Rep (1962), p 157. See also
Ciobanu, Current Problems of International Law (ed Cassese, 1975), pp 3–79.
8 See generally on such a status or regime, McNair, Treaties, pp 255–71, 655–64; O’Connell, State
Succession in International and Municipal Law (1967), 2, pp 12–22, 231ff; Jennings, Hag R, 121,
(1967), ii, p 442; YBILC (1974), ii, pt 1, pp 204–6, paras (30)–(36); Klein, Statusverträge im
Völkerrecht (1980); and § 1, n 6, and §§ 626–7.
6 Barcelona Traction Case (Second Phase), ICJ Rep (1970), p 32. See generally on rights and
obligations erga omnes, YBILC (1976), pt 2, p 99; Weil, RG, 86 (1982), pp 30–33; Frowein in
Völkerrecht als Rechtsordnung (Festschrift für H Mosler) (eds Bernhardt, Geck, Jaenicke and
Steinberger, 1983), pp 241–62; Thirlway, BY, 60 (1989), pp 92–102. See also n 9; and § 146.
Similar questions may arise in relation to some general multilateral treaties, where any party may in
some circumstances claim to be injured by a breach of the treaty by any other party, even if that
breach does not directly affect the claimant party’s own (including its nationals’) material interests.
See §§ 150, at n 17, and 436, n 12, as to human rights treaties. See generally on responsibility
arising out of breaches of multilateral treaties, Sachariew, Neth IL Rev, 35 (1988), pp 273–89.
9 Eg Belgium, established by treaty in 1831: see § 96, n 2, and McNair, Treaties, pp 268–9.
10 Thus in the Reparations for Injuries case the ICJ held that the provisions of the Charter of the
UN invested the UN with an international status — an international personality — with an effect
transcending the group of states comprising the membership of the UN. See §§ 7 and 627.
11 Eg the neutrality of Switzerland (see § 97; McNair, Treaties, pp 260–63) and the demilitarisation
of the Aaland Islands. With regard to these Islands it should be noted that the Committee of Jurists
appointed by the Council of the League took the view (Off J, Special Suppl, No 3, pp 17–19) that the
convention, embodying ‘a settlement regulating European interests … constituted a special
international status … for the Aaland Islands,’ and that ‘until these provisions are duly replaced by
others, every State interested has the right to insist upon compliance with them.’ They were
replaced by a Convention of 20 October 1921, between ten states, not including Russia; see § 237,
n 2, and vol II of the 7th ed of this work, § 72 (8), and Strupp, Wört, i, p 22, for bibliography of
Swedish, Finnish, and general literature upon the Aaland Islands question. See also Suontausta in
ZöV, 13 (1951), pp 741–52; McNair, Treaties, pp 263–5; Hannum, Autonomy, Sovereignty, and
Self-Determination (1990), pp 370–5. And see the Separate Opinion of Judge McNair in the
Advisory Opinion on the Status of South West Africa for detailed reference to the report of the
Commission of Jurists in the case of the Aaland Islands: ICJ Rep, 1950, pp 153–4. The ICJ construed
Art 22 of the Covenant of the League of Nations as creating ‘an international status’ for the
mandated territories: Status of South West Africa Case, ICJ Rep (1950), p 137. See also South West
Africa Cases, ICJ Rep (1962), p 319, holding the mandate for South West Africa to have given rise
to legal rights or interests on the part of all members of the League in the observance by the
Mandatory of the terms of the mandate (at p 343). It is particularly in connection with those treaty
restrictions upon the use of state territory which are often called ‘servitudes’ (see §§ 236–40) that
parties other than the parties to the original treaty are likely to acquire an interest in their
preservation.
For consideration of the Antarctic Treaty as establishing a regime with regulatory powers vested in
certain states only (the Consultative Parties) but valid erga omnes, see Nussbaum,
Rohstoffgewinnung in der Antarktis (1985); and see generally § 257.
2 As to the Aaland Islands in the Baltic, see Art 32 of the Peace Treaty of Paris 1856, and the
annexed Convention of 30 March 1856 (Martens, NRG, 1st series, 15 (1857), pp 780 and 788). See
also vol II of this work (7th ed), § 72; Waultrin, RG, 14 (1907), pp 517–33; and AJ, 2 (1908), p 397.
As to the dispute between Finland and Sweden concerning these islands before the Council of the
League in 1920 and their neutralisation and demilitarisation by the Convention of 20 October 1921,
see vol II of this work (7th ed), §§ 25 and 72(8); McNair, BY, 16 (1925), pp 114, 115 and literature
cited at p 127; Strupp-Schlochauer, Wört, i, pp 21–4; and Vlugt, La Question des iles d’Aland,
considérations suggerées par le rapport des juristes (1921); Söderhjelm, Démilitarisation et
neutralisation des iles d’Aland en 1856 et 1921 (1928); Maury, La Question des iles d’Aland
(1930); Vortiosch, Die Alandfrage (1933); Remsperger, Die Rechtslage der Alandsinseln (1933);
Wrede, Nordisk TA, 3 (1932), pp 123–43; Modeen, ZöV, 37 (1977), pp 604–18; Hannum,
Autonomy, Sovereignty, and Self-Determination (1990), pp 370–75; see also vol II of this work (7th
ed), § 72. As to the coastal zone in Morocco, see Treaty between France and Spain of 27
November 1912, Art 6 (Martens, NRG, 3rd series, 7 (1913), p 323). As to the banks of the Rhine,
see Treaty of Peace 1919 with Germany, Arts 42–44 and 180. As to Heligoland, see Treaty of
Peace 1919, Art 115. See also Arts 45–51 of the Peace Treaty with Italy of 1947, and Art 12 of the
Peace Treaty with Bulgaria of the same year. Thus Art 47 of the Treaty with Italy prohibits
permanent fortifications on the Franco-Italian frontier where weapons firing into French territory
could be emplaced. See also Art 7 of the Lateran Treaty of February 1929 between the Vatican City
and Italy, in which Italy undertook to prohibit the construction within the territory surrounding the
Vatican City of any new buildings which might overlook the latter, Documents (1930), p 218.
12 Eg the Kiel Canal (see The Wimbledon, PCIJ (1923), Series A, No 1; § 185) and the Danube (see
The European Commission of the Danube Case, PCIJ (1927), Series B, No 14; § 176). Similar
suggestions have been made in respect of the Suez and Panama canals (§§ 184–6): see McNair,
Treaties, pp 265–6.
13 See McNair, Treaties, ch 14; ILC Commentary (Treaties), Art 34, para (4) (YBILC (1966), ii, p
231). As to the acquisition of rights and obligations under a treaty by third states, see §§ 626–7.
1 This includes treaties provisionally in force under Art 25 of the Vienna Convention: see ILC
Commentary (Treaties), Art 23, para (3); YBILC (1966), ii, p 211.
2 The obligation of good faith includes the obligation of a party to a treaty to abstain from acts
calculated to frustrate the object and purpose of the treaty: see ILC Commentary (Treaties), Art 23,
para (4); YBILC (1966), ii, p 211. See also § 620, n 2; and § 12, nn 6, 7, and § 105, as to the
seventh ‘Principle of Friendly Relations’.
2 Vienna Convention on the Law of Treaties 1969, Art 26. That provision has been referred to by
the ILC as ‘a definition of the very essence of treaties’: YBILC (1982), ii, pt 2, p 38. And see
Rosenne, Developments in the Law of Treaties 1945–1986 (1989), pp 135–79; and § 584, n 2.
6 In the Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States in accordance with the Charter of the UN (see § 105) this principle was
elaborated as follows:
‘The principle that States shall fulfil in good faith the obligations assumed by them in
accordance with the Charter
Every State has the duty to fulfil in good faith the obligations assumed by it in accordance
with the Charter of the United Nations.
Every State has the duty to fulfil in good faith its obligations under the generally recognized
principles and rules of international law.
Every State has the duty to fulfil in good faith its obligations under international agreements
valid under the generally recognized principles and rules of international law.
Where obligations arising under international agreements are in conflict with the obligations
of Members of the United Nations under the Charter of the United Nations, the obligations
under the Charter shall prevail.’
7 On the principle of good faith generally, see Fitzmaurice, BY, 30 (1953), 53–4, and BY 35 (1959),
pp 207–16; Cheng, General Principles of Law as Applied by International Courts and Tribunals
(1953), pp 105–60; Schwarzenberger, Hag R, 87 (1955), i, pp 290–326; Zoller, La Bonne Foi en
droit international public (1977); Nuclear Tests Case, ICJ Rep (1974), at p 268; Stuyt, Neth IL Rev,
28 (1981), pp 54–8; Thirlway, BY, 60 (1989), pp 7–29; Rosenne, Developments in the Law of
Treaties 1945–1988 (1989), pp 135–79; and note the ICJ’s emphasis on the principle of good faith
being one of the basic principles governing the creation and performance of legal obligations but
not in itself a source of obligation where none would otherwise exist (Border and Transborder
Armed Actions Case, ICJ Rep (1988), p 105).
3 See vol I of 8th ed of this work, p 880, nn 4–8.
4 That assumption is frequently expressed in the form of the principle pacta sunt servanda, but it
is not certain that this is the best formulation: see Anzilotti, pp 42–57; Verdross, pp 28–33; Kelsen,
Das Problem der Souveränität und die Theorie des Völkerrechts (1920), and Allgemeine
Staatslehre (1925), p 175. And see Harv Research (1935), pt III, pp 977–92; Chailley, La Nature
juridique des traités internationaux (1932), pp 73–130; Scelle, ii, p 337; Strupp, Éléments, i, p 8;
Whitton, RI (Paris), 18 (1936), pp 440–86, and, International Conciliation (Pamphlet No 313,
October 1935); Kunz, AJ, 39 (1945), pp 180–97; Fitzmaurice, BY, 35 (1959), pp 194–6; Wehberg, AJ,
53 (1959), pp 775–86; McNair, Treaties, ch 30; YBILC (1966), ii, pp 210–11; Suganami, YB of World
Affairs, 33 (1979), pp 243–56; Likashud, AJ, 83 (1989), pp 513–18. Cavaglier, Hag R (1929), ii, p
362, admits the fundamental nature of the rule pacta sunt servanda, but points out that the binding
force of that rule has also been accepted by international custom. See also §§ 3–5, on the ‘initial
hypothesis’.

Part 4 International Transactions, Ch.14 Treaties, Character and Function of Treaties

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4 International transactions, Ch.14 Treaties,

From: Oppenheim's International Law: Volume 1 Peace (9th edition)

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§ 581 Development of the law of treaties: Vienna Conventions on

§ 582 Concept of treaties

§ 583 So-called law-making treaties

§ 584 Binding force of treaties

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