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Expression of Consent to be Bound by a Treaty in the Light of the 1969 Vienna Convention

Published online by Cambridge University Press:  28 March 2017

Alexandru Bolintineanu
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Extract

The questions which will be examined in this paper relate to the provisions of Articles 11 to 15, contained in Part II, Section I ( “Conclusion of Treaties” ) of the 1969 Vienna Convention on the Law of Treaties. These articles deal with “the means of expressing consent to be bound by a treaty” (as enumerated in Art. 11): signature (Art. 12), exchange of instruments constituting a treaty (Art. 13), ratification, acceptance, or approval (Art. 14) and accession (Art. 15).

Type
Research Article
Information
American Journal of International Law , Volume 68 , Issue 4 , October 1974 , pp. 672 - 686
Copyright
Copyright © American Society of International Law 1974

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References

1 “Signature,” as used in this article, designates “full” signature binding, as such, the state which expressed its consent through it. Comments on ratification also apply, in general, to acceptance or approval, as they are considered by the Vienna Convention as similar to ratification (Art. 14, para. 2). For the text of Articles 11 to 15, see UN Document A/coNF.39/ll/Add.2, at 290–91. Text also in 63 AJIL 878–80 (1969) and 8ILM 684–85 (1969).

2 See, for instance, Kearney, Richard D. and Dalton, Robert E., The Treaty On Treaties 64 AJIL 495 (1970)CrossRefGoogle Scholar; Nahlik, S. E., The Grounds of Invalidity and Termination of Treaties 65 AJIL 736 (1971)CrossRefGoogle Scholar.

3 The convention will not enter into force until thirty-five states have deposited instruments of ratification or accession with the Secretary-General of the United Nations. As of January 1, 1974, the following 18 states had deposited instruments, either of ratification or of accession: Argentina, Barbados, Canada, Central African Republic, Jamaica, Lesotho, Mauritius, Morocco, New Zealand, Niger, Nigeria, Paraguay, Philippines, Spain, Syria, Tunisia, United Kingdom, and Yugoslavia.

4 United Nations Conference on the Law of Treaties, Second Session (9 April-22 May 1969), UN Document A/coNF.39/ll/Add.l, at 170, para. 21 (the representative of Switzerland). In its advisory opinion on “The Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970),” the ICJ invoked certain provisions of Article 60 of the Convention concerning termination of a treaty relationship on account of breach which had been adopted without a dissenting vote. The Court stated that these provisions “may in many respects be considered as a codification of existing customary law on this subject” [1971] ICJ Rep. 3 at 47.

5 Sinclair, I. M., The Vienna Convention on the Law of Treaties 145 (1973)Google Scholar.

6 In his First Report on the Law of Treaties, Sir Gerald Fitzmaurice listed the draft articles on the means of expressing consent to be bound by a treaty under the title “General conditions of formal validity.” [1956] 2 ILC Y.B. 109.

7 See, for instance, Maresca, Alfredo, Il diritto del tratatti: La Convenzione codificatrice di Vienna del 23 Maggio 1969, at 126 (1971)Google Scholar.

8 According to Article 2(e) of the Convention “‘negotiating state’ means a state which took part in the drawing up and adoption of the text of the treaty.”

9 See Reuter, Paul, La Convention de Vienne sur le droit des traités 15 (1970)Google Scholar.

10 Maresca, supra note 7, at 155–56. See also Introductory study by Capotorti, Francesco, Convenzionne di Vienna sul diritto dei tratatti 24 (1969)Google Scholar.

11 The text of Article 11 of the Convention which did not have a counterpart in the ILC draft was proposed at the Conference by Poland and the United States (A/conf. 39/C.1/L.88 and Add 1), to indicate that the following articles did not exhaust the list of the means of expressing consent to be bound by a treaty (United Nations Conference on the Law of Treaties, First Session, Vienna, March 26-May 24, 1968, A/conf. 39/11, paras. 43–48). However, read together with Articles 12 to 15, this prefatory article seems to indicate the decisive role attributed by the Convention to the will of the negotiating states. Other means than those provided in these articles are, for instance, the proclamation or publication of a treaty (see examples in Blix, Hans, The Requirement of Ratification, 30 B.Y.I.L. 352 at 357–58, 363–64 (1953)Google Scholar) and the notification that the relevant internal procedures for the entering into force of the treaty have been complied with.

12 Lachs, Manfred, Substance and Form in International Law, Transnational Law in a Changing Society, Essays in Honor of Philip C. Jessup (Friedmann, W., Henkin, L. and Lissitzyn, O., eds.) 101 (1972)Google Scholar.

13 Id., at 102–03.

14 Separate opinion of Judge Jessup in South West Africa Case [1962] ICJ Rep., 319 at 411.

15 3 Sereni, A. P., Diritto internazionale 1317 (1962)Google Scholar; 2 Dahm, G., Völkerrecht 68 (1961)Google Scholar.

16 Maresca, supra note 7, at 154.

17 Hall, W. E., International Law Sect. 110 (8th ed., 1924)Google Scholar; De Louter, , Le Droit International Public Positif 488–91 (1920)Google Scholar; 1 Rousseau, Ch., Principes Généraux de Droit International Public 189–95 (1944)Google Scholar; I Oppenheim, , International Law 906–07 (8th ed. Lauterpacht, H., 1957)Google Scholar; McNair, , The Law of Treaties 134 (1961)Google Scholar; Art. 7 and commentaries of the Harvard Draft Convention, 29 AJIL Supp. 756 (1935); Art. 4 of the articles provisionally adopted by the ILC, [1951] 2 ILC Y.B. 74.

18 Protocol No. 9 of the Berlin Congress of 1878 and Article 5 of the Convention on treaties approved by the 6th Inter-American Conference (Havana 1928) were quoted as examples of international instruments. But due to the limited number of the parties (5 and 8 respectively to these compacts, the last one having moreover a regional character) and to the fact that they may be construed to refer only to “treaties,” in the narrow sense of the term, and not to agreements in simplified form (concluded by signature alone), it is difficult to ascertain that they expressed a general rule of international law. In its decision of September 10, 1929 (“Territorial jurisdiction of the International Commission of the Oder”) and in its advisory opinion of October 15, 1931, (“Railway traffic between Poland and Lithuania”) the PCIJ held that a convention not ratified by Poland, in the first case, and by Lithuania, in the second case, was not binding on those countries. The Court’s dicta was not of a general character, but applied only to the specific cases with which the Court had to deal; they amounted to an assessment that, if a treaty so provides, it has to be ratified. See also in this sense H. Blix, supra note 11, at 370–71 and H. Lauterpacht [1953] 2 ILC Y.B. 117.

19 After an examination of 1,760 treaties published in the League of Nations Treaty Series from 1932 to 1940 and 1,300 treaties published in the United Nations Treaty Series (vol. 1, 1946 to vol. 79, 1951), Blix assessed that 53% of the treaties published by the League were ratified, while for only 23% of the treaties published by the United Nations was the same procedure followed. H. Blix, supra note 11, at 359–60. According to more recent statistics, nine of the 1,579 treaties published in the United Nations Treaty Series between 1963–1965 required ratification. Frankowska, Maria, De la prétendue présomption en faveur de la ratification, 73 Rev. Gén. Droit Int. Public 78 (1969)Google Scholar.

20 See Bolintineanu, A. and Popescu, D., Legal Means Whereby States Become Parties of Treaties (in Romanian) 110 (1967)Google Scholar. A rule or a presumption in favor of signature, operating unless the negotiating states have not provided explicitly for ratification, was proposed by Sir Gerald Fitzmaurice in his First Report on the Law of Treaties [1956] 2 ILC Y.B. 113–14. He thus reiterated the opinion expressed in his study Do Treaties Need Ratification? 15 B.Y.I.L. 129 (1934). H. Blix (supra note 11, at 537 ff.) seems to share the same opinion.

21 This question was debated by the ILC for the first time in 1954. See [1954] 2 ILC Y.B. 27–34.

22 This ILC position was explained by reference to the divergent views contained in the comments of governments and to the controversial character of any residuary rule. (See ILC commentary on Art. 12 of its 1966 draft, corresponding to Art. 14 of the Vienna Convention, A/coNF.39/ll/Add. 2, at 18, para (7)) .

23 See, for instance, A/conf.39/11, at 85, para. 6; 86, para. 9, and 89, paras. 7 and 8.

24 Proposals to this effect were submitted to the Conference by Venezuela, (A/conf. 39/C.1/L.71), Bolivia, Chile, Colombia, Guatemala, Honduras, Mexico, and Venezuela (A/conf.39/C.1/L.105), and Switzerland (A/conf.39/C.1/L/87).

25 See, for instance, A/conf.39/11, at 85, paras. 4 and 9, and 86, para. 9.

26 A proposal to this effect was submitted by Czechoslovakia, Sweden, and Poland (A/conf.39/1/L/38 and Add. 1 and 2) and was later withdrawn.

27 See, for instance, A/conf.39/11, at 86, paras. 13 and 14; 87, para. 28; and 88, para. 32.

28 See, for instance, id., 87, paras. 21 and 30; 88, para. 31; 89, para. 15.

29 Frankowska, supra note 19, at 86–87.

30 The argument using statistical figures to substantiate the view expressed by Frankowska that the question of a residuary rule presents nevertheless a certain practical importance does not seem very impressive. Out of 1,597 treaties published in the United Nations Treaty Series 1963–1965, 151 contained no provision on the means to express consent to be bound by them. But 116 of these were concluded between states and international governmental organizations and only 35, that is 2.2%, between states; there were no objections or disputes in connection with the validity of the treaties without a clause on the means of expressing consent to be bound by them. See Frankowska, supra note 19, at 78–79.

31 See Basdevant, Jules, La conclusion et la redaction des traités et des instruments diplomatiques autres que les traytés, 15 Académe de Droit International, Rec. de Cours 615–26 (1926, V)Google Scholar; Rousseau, supra note 17, at 253 ff.

32 Maresca, supra note 7, at 160; Rousseau, supra note 17, at 71.

33 See, for instance, Basdevant, supra note 31, at 619 ff.

34 See Maresca, supra note 7, at 161–62.

35 [1962] 2 ILC Y.B. 163, para. 11.

36 The definition of a treaty in simplified form read as follows: “[A] treaty concluded by exchange of notes, exchange of letters, agreed minute, memorandum of agreement, Joint declaration or other instrument concluded by any similar procedure.” Art. 1, para. 1(b) of the 1962 draft. Id., at 161.

37 See A/conf.39/ll/Add.2, at 9, para. 8 and 17–18, para. 5.

38 According to an amendment submitted by nine Latin American states to Article 10 of the ILC draft relating to signature (Art. 12 of the Convention), states could express their consent by signature (a) when the treaty so provides or (b) when “in conformity with the internal law of the state the treaty is an administrative or executive agreement.” A/conf.39/ll/Add.2, para. 119. The proposal was rejected by 60 votes to 10 with 16 abstentions.

39 Cf. de la Guardia, Ernest and Delpech, Marcelo, El derecho de los tratados y la Convención de Viena de 1969, at 223–24 (1970)Google Scholar.

40 There is a widespread opinion that, as constitutions are usually concerned with “treaties proper,” executive organs are competent to conclude “treaties in simplified form” because they relate to fields in which, according to municipal law, such organs are competent to adopt internal regulations without any parliamentary approval; they are thus authorized to act in the same way on the international plane. See, for instance, 1 Wengler, W., Völkerrecht 220 and 225 (1964)Google Scholar; Wilcox, F. O., The Ratification of International Treaties 233 (1935)Google Scholar; Chayet, , Les accords en forme simplifee, Ann. Française de Droit International 5 (1957)Google Scholar. A somewhat different opinion has been recently expressed in the sense that in the case of “treaties in simplified form,” the authority invested with treatymaking power (in general the head of state) had delegated its power to the negotiators of the treaty i.e. has authorized them explicitly or implicitly to act to this effect. De la Guardia and Delpech, supra note 39, at 223.

41 See supra note 38.

42 See, for instance, A/conf.39/11, at 91–92, para. 39 (the representative of Chile).

43 A/conf.39/11, at 89, para. 6. Another representative pointed out that the acceptance of the nine-states amendment would imply requiring states to study the internal law of other states in order to determine whether a treaty was an administrative agreement; such a task is difficult enough for national lawyers and would be much more so for foreigners. Id., at 93, para. 59.

44 See Bolintineanu and Popescu, supra note 20, at 77.

45 De la Guardia and Delpech, supra note 39, at 220.

46 A/conf.39/11/Add. 1, at 18, para. 8. For the methods at the disposal of a negotiating state to establish unilaterally the means to express its consent to be bound see infra, pp. 68 ff.

47 Examples of such treaties are given by H. Blix, supra note 11, at 357 and Jones, Mervyn, Full Powers and Ratification 119 (1949)Google Scholar.

48 De la Guardia and Delpech, supra note 39, at 224.

49 That was the case of the conventions on questions of private international law (1902 and 1903) to which additional protocols were appended for the accession of Finland, Poland, Czechoslovakia, and Yugoslavia, since the conventions provided that only the states represented at the conferences which had adopted them were entitled to use this means of expressing consent to be bound.

50 As an example of a procedure of informal agreement, the commentary to Article 12 of the 1966 ILC Draft (corresponding to Art. 15 of the Vienna Convention) mentioned the informal agreement expressed in General Assembly resolution 1903 (XVIII) to open to accession by the new states the general multilateral treaties concluded under the auspices of the League of Nations. A/conf.39/ll/Add.2, at 20. A tacit agreement intervened in the case of the accession of Finland, Poland, and Czechoslovakia to the 1907 Hague Convention on the pacific settlement of international conflicts, despite the fact that the Convention provided (Art. 94) that the conditions under which the nonparticipating states to the second Hague Peace Conference might accede to the Convention must be established by a subsequent explicit agreement of the parties.

51 See the commentary to Art. 12 of the ILC Draft (corresponding to Art. 15 of the Vienna Convention). A/coNF.39/ll/Add.2, at 19, para. 4.

52 See, for instance, 3 DAHM, supra note 15, at 71, 77–78; Art. 7 and commentary, Harvard Draft Convention, supra note 17, at 768 ff; H. Lauterpacht, First Report on the Law of Treaties, [1953] 2 ILC Y.B. 115; Sir Humphrey Waldock, First Report on the Law of Treaties [1962] 2 ILC Y.B. 48 ff; ROUSSEAU, supra note 17, at 225 ff.

53 See for instance H. Blix, supra note 11, at 378; Harvard Draft Convention (commentary to Art. 7), supra note 17, at 769.

54 [1962] 2 ILC Y.B. 161 (Arts. 11 and 12).

55 This formulation was produced by the Drafting Committee of the ILC. [1966] 2 ILC Y.B. 115.

56 A Spanish proposal to use the formulation “it is clear from the circumstances that the negotiating states . . .” (A/conf.39/C 11/108) in the article concerning signature was not adopted by the Drafting Committee of the Conference to which it had been referred.

57 See the remarks made by the Spanish representative at the Vienna Conference. A/conf.39/11, at 92, para. 41. See also Maresca, supra note 7, at 165.

58 Id., 165.

59 See also the commentary of the ILC to Art. 10 of the 1966 draft, corresponding to Art. 12 of the Vienna Convention. A/coNF.39/11/Add.2, at 16, para. (3).

60 See Frankowska, supra note 19, at 86.

61 See Maresca, supra note 7, at 171 and 199.

62 Some full powers contain a solemn promise to ratify the treaty. This formula, because inherited from the diplomatic practice of the 18th century, does not mean that the state which has issued the full powers undertakes an obligation to ratify the treaty, but it indicates the intention of the state to be bound by it only if ratified. See Harvard Draft Convention, supra note 17, at 761–63.

63 See, for instance, Sir Gerald Fitzmaurice, [1956] 2 ILC Y.B. 113–14, 124 (Art. 29, para. 3 and Art. 32, para. 4) Harvard Draft Convention, supra note 17, at 761; Oppenheim, supra note 17, at 907.

64 Bolintineanu and Popescu, supra note 20, at 136–37.

65 An example of a clause from which it would be difficult to infer the intention of a state regarding the means of expressing consent to be bound by a treaty is that used in British full powers to the effect that what has been agreed by the plenipotentiary will be submitted to ratification if necessary. Satow, E., A Guide to Diplomatic Practice 86–89 (4th ed., Sir Bland, Neville, 1957)Google Scholar.

66 This objection was formulated during the 1972 debate in the ILC on a corresponding provision, according to which ratification is not needed if the intention to dispense with it clearly appears from statements made during the negotiations. This provision was, however, included in the 1962 draft (Art. 12). See [1962] 1 ILC Y.B. 207 and 2 id., 171. The objection was reiterated at the Vienna Conference. A/conf.39/11, at 87, para. 27.

67 See A/conf.39/11, at 92, para. 50.

68 See [1962] 1 ILC Y.B. 206 and A/conf.39/11, at 92, para. 50.

69 See for the proposals to delete subparagraph 1(c) of Art. 12 or to modify it which were not accepted, A/coNF.39/ll/Add.2, at 126, paras. 119 and 125 and A/conf.39/11, at 92, para. 47 and 93, para. 62.