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The Nuclear Test Ban Treaty and International Law

Published online by Cambridge University Press:  28 March 2017

Egon Schwelb
Egon Schwelb*
Affiliation:
Yale Law School
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Extract

The Test Ban Treaty of August 5, 1963, prohibits nuclear weapon tests or other nuclear explosions in the atmosphere, in outer space, or under water, i.e., in the environments where detection from outside the territory of the testing state is possible. Underground nuclear explosions are not prohibited as long as they do not cause radioactive debris to be present outside the territorial limits of the state under whose jurisdiction or control such explosions are conducted. The parties to the treaty also undertake to refrain from “causing, encouraging, or in any way participating in” the carrying out of explosions anywhere which have any of the prohibited effects. The treaty is, as President Kennedy pointed out in his message to the Senate, “the first concrete result of 18 years of effort by the United States to impose limits on the nuclear arms race.” Similarly Lord Home, as he then was, said as Secretary of State for Foreign Affairs of the United Kingdom, that the limited test ban in three environments was “a good thing in itself not only first, because it reduces the danger of pollution of the atmosphere, but, secondly, because it makes the first agreement of substance which we have been able to make with the Russians for a very long time.” Mr. Khrushchev, on his part, praised the treaty as a “document of great international significance” and said that “its conclusion means a major success for all people of goodwill who for many years have been actively fighting for the discontinuance of nuclear tests, for disarmament, for peace and international friendship.” It is stated in the Preamble to the treaty that the parties seek to achieve the discontinuance of all test explosions of nuclear weapons for all time and are determined to continue negotiations to this end.

Type
Research Article
Information
American Journal of International Law , Volume 58 , Issue 3 , July 1964 , pp. 642 - 670
Copyright
Copyright © 1964 by The American Society of International Law

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References

1 57 A.J.I.L. 1026 (1963); Cmnd. 2118, Misc. No. 10 (1963); U.N. Doc. ENDC/100, Eev.l, Annex to Doc. A/5488. By the time the treaty entered into force on Oct. 10, 1963, 105 governments or authorities claiming to be governments had signed it, in addition to the three original parties (U.S.S.E., U.K. and U.S.A.). As of Feb. 20, 1964, 28 of the signatories other than the original parties had deposited instruments of ratification and one state had deposited an instrument of accession. Among the 108 signatories there were the following seven non-Members of the United Nations: Federal Eepublic of Germany, East Germany, San Marino, Switzerland, Republic of Korea, Eepublic of South Viet-Nam and Western Samoa (Western Samoa is a former Trust Territory under New Zealand administration, which became independent on Jan. 1, 1962; see General Assembly Ees. 1626 (XVI)). Of the then 111 Members of the United Nations (Kenya and Zanzibar were admitted only in December, 1963) the following ten did not sign: three European states: France, Albania and Cyprus; two Asian states: Cambodia and Saudi Arabia; four African states: South Africa, which subsequently acceded to the treaty, the Central African Eepublic, Congo (Brazzaville), and Guinea; one Latin American state: Cuba. Legal literature on the treaty: P. Chandrasekhara Eao, , “The Test Ban Treaty, 1963: Form and Content,” 3 Indian J.I.L. 315 (July, 1963);Google Scholar Andrew Martin, “Legal Aspects of Disarmament,” Int. and Comp. Law Q., Supp. Pub. No. 7 (1963), p. 75; Wilhelm Cornides, , “Das Moskauer Moratorium und die Bundesrepublik. Inhalt und Tragweite des Vertrages über die teilweise Einstellung der Kernwaffenversuehe,” 18 Europa Archiv 583 (Aug. 25, 1963);Google Scholar Giorgio Gaja, , “ I I Trattato di Mosea e l'Uso in Guerra delle Armi Nucleari,” 46 Eivista di Diritto Internazionale 397 (1963).Google Scholar For an analysis of Art. I of the treaty from the point of view of the ‘ ‘ modern use of logic in law,'’ see Layman E. Allen, “Automation: Substitute and Supplement in Legal Practice. The Logic of the Test-Ban Treaty,” 7 The American Behavioral Scientist at 41 et seq. (December, 1963).

2 For a report on fallout from underground tests, see E. A. Martell, in 143 ‘ ‘ Science” (American Association for the Advancement of Science) 126 (No. 3602, Jan. 10, 1964).

3 Art. I of the treaty reads as follows: “ 1 . Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: (a) in the atmosphere; beyond its limits, including outer space; or underwater, including territorial waters or high seas; or (b) in any other environment if such explosion causes radioactive debris to be present outside the territorial limits of the state under whose jurisdiction or control such explosion is conducted. It is understood in this connection that the provisions of this subparagraph are without prejudice to the conclusion of a treaty resulting in the permanent banning of all nuclear test explosions, including all such explosions underground, the conclusion of which, as the Parties have stated in the Preamble to this Treaty, they seek to achieve. “ 2 . Each of the Parties to this Treaty undertakes furthermore to refrain from causing, encouraging, or in any way participating in, the carrying out of any nuclear weapon test explosion, or any other nuclear explosion, anywhere which would take place in any of the environments described, or have the effect referred to, in paragraph 1 of this article.“

4 Nuclear Test Ban Treaty. Message from the President of the United States transmitting the Treaty (hereinafter referred to as “Message“), Sen. Exec. M, 88th Cong., 1st Sess., Aug. 8, 1963; 49 Dept. of State Bulletin 316 (1963).

5 Pari. Deb. (Hansard), House of Lords, Vol. 252, No. 123, July 26, 1963, col. 914.

6 Statement at signing ceremony, Moscow, Aug. 5, 1963. New York Times, Aug. 6, 1963.

7 Professor Leon Lipson in an unpublished address.

8 Text in: The Nuclear Test Ban Treaty, Eeport of the Committee on Foreign Relations (hereinafter referred to as “Committee Eeport“), U. S. Senate, 88th Cong., 1st Sess., Exec. Eep. No. 3, Sept. 3, 1963, Appendix I I , p. 29. For a comparison by Mr. Arthur H. Dean between the texts of the U. S.-TJ. K. draft proposed at Geneva on Aug. 27, 1962, and that of the treaty as signed at Moscow on Aug. 5, 1963, see Nuclear Test Ban Treaty, Hearings before the Committee on Foreign Eelations (hereinafter referred to as “ H e a r i n g s “ ) , U. S. Senate, 88th Cong., 1st Sess., Aug. 12 to 27, 1963, at 814.

9 The interpretation of the words “ a n y other nuclear explosion” as developed in the text is based on the Committee Eeport (op. cit. note 8, p. 5 ) ; the Opinion of the General Counsel of the TJ. S. Department of Defense, Hearings, op. cit. note 8, p. 177; and the Opinion of the Legal Adviser of the State Department, Committee Eeport, op. cit. note 8, Appendix I, p. 27; 58 A.J.I.L. 176-179 (1964).

10 E.g., the statement by the Soviet Government of Aug. 21, 1963, reproduced in Committee Report 5. Apart from statements made on July 26, 1963, after the initialing and before the signing of the treaty (see note 5 above), there has been no discussion of the substance of the treaty in either House of the British Parliament.

11 Res. 1653 (XVI) of Nov. 24, 1961, entitled “Declaration on the Prohibition of the Use of Nuclear and Thermo-Nuclear Weapons.” TJ.N. General Assembly, 16th Sess., Official Eecords, Supp. No. 17 (A/5100), p. 4.

12 Res. 1909 (XVIII) of Nov. 27, 1963, on the “Question of Convening a Conference for the Purpose of Signing a Convention on the Prohibition of the Use of Nuclear and Thermo-Nuclear Weapons.” U.N. General Assembly, 18th Sess., Official Eecords, Supp. No. 15 (A/5515), p. 14.

13 See note 6 above.

13 a Giorgio Gaja, loo. cit. note 1 above, p. 400, comes to the conclusion that the employment of weapons in war is not regulated by the treaty.

14 See Schwarzenberger, The Legality of Nuclear Weapons (London, 1958); Menzel, Legalität oder Illegalität der Anwendung von Atomwaffen (Tübingen, 1960), reviewed by Hink in 57 A.J.I.L. 472 (1963).

15 See note 11 above.

16 Res. 1962 (XVIII) of Dec. 13, 1963. U.N. General Assembly, 18th Sess., Official Eecords, Supp. No. 15 (A/5515), p. 15; 58 A.J.I.L. 477 (1964).

17 U.N. Docs. A/C. 1/P.V. 1342 to 1346; A/5656 (Report of the First Committee). It should be noted, however, that the representative of Prance declared that his delegation, while subscribing to the principles contained in the Declaration, could not, for the moment give this Declaration more value than that of a declaration of intention. France does not consider that a resolution of the General Assembly, even though adopted unanimously, can in this case create, stricto sensu, juridical obligations incumbent upon Member states (U.N. Doc. A/C.l/P.V. 1345).

18 U.N. Docs. A/4942, Add. 3 (Eeport of the First Committee (Part IV), Nov. 16, 1961); A/P.V. 1063, Nov. 24, 1961.

19 See note 8 above.

20 Hearings 211. Dr. Edward Teller (ibid. 433) was of the opinion that the utility of the Plowshare Program inside the United States may not be completely cut off, that the use of nuclear explosions in making harbors might be excluded and that ‘ ‘ the utility outside the United States where the greatest field lies is very severely endangered.” See also Finney, “ A Second Canal?” 150 The New Republic 21 (No. 13, March 28, 1964).

21 Hearings 181-182.

22 Cf. the Opinion of the Legal Adviser of the U. S. Department of State in Hearings 61-62; 58 A.J.I.L. 175-176 (1964).

23 In Res. 1884 (XVIII), unanimously adopted on Oct. 17, 1963, the General Assembly of the United Nations welcomed the expressions by the U.S.S.B. and the U.S.A. of their intention not to station in outer space any objects carrying nuclear weapons, and solemnly called upon all states to refrain from placing in orbit any objects carrying nuclear weapons, installing them on celestial bodies or stationing them in outer space in any other manner. U.N. General Assembly, 18th Sess., Official Eecords, Supp. No. 15 (A/5515), p. 13.

24 On the interpretation of the verbs “ t o cause,” “ t o encourage” and “ t o participate in,” see Martin, op. cit. 78.

25 P. Chandrasekhara Rao, loc. cit. note 1 above, p. 317. 26 For the application of the West German Ratification Bill to West Berlin, see p. 658 below.

27 Loc. cit. note 22 above.

28 52 A.J.I.L. 830 et seq. (1958). The “contiguous zone” is a zone of the high seas contiguous to the territorial sea of a state (Art. 24 of the Convention on the Territorial Sea and the Contiguous Zone). On the terms used in the text in general, see McDougal and Burke, The Public Order of the Oceans 3, note 7 (1962).

29 General Assembly Res. 1991 A (XVIII) (Security Council) and 1991 B (XVIII) (Economic and Social Council), U.N. General Assembly, 18th Sess., Official Eecords, Supp. No. 15 (A/5515), p. 21; Doe. A/P.V. 1285. In the vote on the Charter amendment relating to the composition of the Economic and Social Council, the representative of China also abstained, so that it was carried without the support of any permanent Member of the Security Council. By the end of March, 1964, these amendments to the Charter had been ratified by three Member States (Algeria, Jamaica and Thailand).

30 See p. 660 below.

31 Hearings 34.

32 Committee Report 6.

33 In saying this, this writer does not wish to express an opinion on the question whether, the treaty being silent on the question of the admissibility of reservations and their effect, a unilateral reservation by China or any other signatory would have been admissible.

34 Note 8 above.

35 Of the 105 signatories (other than the original parties)—see note 1 above— 80 signed in Washington, London and Moscow; six signed in Washington and London: Cameroon, Korea, Niger, Portugal, Spain and Uganda; two in Washington and Moscow: Somalia and Yemen; one in London and Moscow: the Mongolian People's Eepublie; thirteen signed only in Washington: Burundi, Chad, China, Gabon, Guatemala, Haiti, Ivory Coast, Madagascar, Panama, Ewanda, Togo, Upper Volta and South “Viet-Nam. The Byelorussian and Ukrainian Soviet Socialist Eepublics and East Germany signed only in Moscow. So did, of course, the original parties. South Africa deposited her instrument of accession in Washington and London. The sources for the data contained in this footnote are, in part, the German Parliamentary paper referred to in note 47 below and, in part, information kindly furnished to the writer by the Treaty Section of the United Nations Office of Legal Affairs.

36 Hearings 18.

37 Eeparation for Injuries Suffered in the Service of the United Nations, [1949] I.C.J. Eep. at 182.

38 Effect of Awards of Compensation made by the United Nations Administrative Tribunal, [1954] I.C.J. Eep. at 57.

39 In the course of the proceedings of the Three-Power Geneva Conference on the Discontinuance of Nuclear Weapon Tests, and with regard to the far more ambitious project of a draft treaty by which an international organization to control the prohibition would have been established, the United States, supported by the United Kingdom, proposed a “parties article,” i.e., a participation clause under which, in addition to the U.S.S.K., the U.K. and the U.S.A., “ a n y other state or authority” meeting certain requirements would have been eligible to be invited or admitted to membership by the preparatory commission or by the control commission of the contemplated organization (Doc. GEN/DNT/102, July 26, 1960). This text, as explained by Mr. Wadsworth as American representative, attempted to by-pass every political test for accession to the treaty. The words “ s t a t e “ and “ a u t h o r i t y “ were suggested because they cover any conceivable political situation and can apply even to regimes not enjoying wide de jure recognition (Doc. GEN/DNT/P.V. 234, July 26, 1960). The U. S. proposal also contemplated a functional review of applications for membership by the control commission. The Soviet Union rejected the proposal as “incorrect,” “reactionary,” and as being at variance with the standards of international law (Doc. GEN/DNT/P.V. 238, Aug. 4, 1960). The Soviet Union proposed that “ t h e Treaty shall be open for adherence by all other States which assume the obligations contained therein… . “ (Doc. GEN/DNT/103, Aug. 4, 1960). On April 18, 1961, the American and British delegations to the Geneva Conference submitted to it the text of a new draft treaty, Art. 19 of which (“Parties to the Treaty“) no longer contained the words “ o r authorities” (Doe. GEN/DNT/110, April 18, 1961; also printed in Documents on Disarmament, 1961 (U. S. Arms Control and Disarmament Agency, Pub. 5, August, 1962), p. 62). Mr. Dean (U.S.A.) explained that the sponsors had decided that it was not juridicially essential for the draft article to contain both of the two descriptive words “ s t a t e “ and “authority.” In an effort to meet the Soviet point of view, they were prepared to drop the latter term, but they were satisfied that the use of “ s t a t e “ alone need not itself create any implication of political de facto or de jure recognition between two political entities which both become parties to the treaty but do not recognize each other bilaterally. Having met the U.S.S.E. in regard to this definition, the sponsors found all the more reason to hold the view that no state should be able automatically to become a party to the treaty (Doc. GEN/DNT/P.V. 297, April 25, 1961).

40 For examples and their analysis, see Handbook of Final Clauses, TJ.N. Doc. ST/ LEG/1, Aug. 28, 1951, pp. 80 et seq. (“Clauses establishing which States may become parties to the Convention“). More recent examples are the Conventions on the Status of Refugees (1951) and of Stateless Persons (1954), on the Political Rights of Women and on the International Eight of Correction (1952), on the Abolition of Slavery etc. (1956), the Nationality of Married Women (1957); the four Conventions on the Law of the Sea (1958); the Conventions on the Eeduction of Statelessness and on Diplomatic Eelations (1961), on Consent to Marriage (1962) and on Consular Relations (1963). In the resolution on “Participation in General Multilateral Treaties Concluded under the Auspices of the League of Nations,” Res. 1903 (XVIII), Nov. 18, 1963 (TJ.N. General Assembly, 18th Sess., Official Records, Supp. No. 15 (A/5515), p. 69), the General Assembly invited to accede to the League of Nations conventions concerned any state “which is a Member of the United Nations or member of a specialized agency or a party to the Statute of the International Court of Justice, or has been designated for this purpose by the General Assembly.” The Antarctic Treaty, Washington, Dec. 1, 1959, 54 A.J.I.L. 477 (1960), an instrument which politically has features comparable to those of the Test Ban Treaty of 1963 and which, like the latter, was concluded outside the United Nations, provides in its Art. XIII that it shall be open for accession by any state which is a Member of the United Nations, or by any other state which may be invited to accede to the treaty with the consent of all the (original) Contracting Parties, each one of which has thus a right of veto against the admission of any state which is not a Member of the United Nations.

41 U.N. Doc. A/P.V. 1285 (Provisional), p. 67, Dec. 17, 1963.

42 Message, loo. cit. note 4 above.

43 Hearings 14 and 18.

44 This statement is also repeated in the Committee Beport 6-7. With regard to the Secretary of State's remark that, while the United States is under no obligation to accept a notification that the East German authorities have subscribed to the treaty, “the East German regime would [nevertheless] have committed itself to abide by [its] provisions,” attention is drawn to Schwarzenberger's comments in “The Misery and Grandeur of International Law” (Inaugural Lecture, London, 1964, p. 11), which became available to the writer only after this article had been printed. Schwarzenberger's observation also applies to the precedent of the United States’ reply to the notification that the “German Democratic Eepublie” had purported to accede to the 1949 Geneva Conventions for the Protection of War Victims, which the Legal Adviser invoked in Hearings, p. 17, summary in 58 A.J.I.L. 173 (1964). Then the American reply had been that the Government of the United States did not recognize the ‘ ‘ German Democratic Eepublie.” Bearing in mind, however, the purpose of the Geneva Conventions, it noted that the “Government of the German Democratic Eepublie” had accepted their provisions and indicated its intention to apply them. Professor Schwarzenberger says: “While no unilateral qualification by one depositary government can commit either of the other two, they cannot have it both ways. Each depositary government may decide for itself whether it is prepared to regard an entity as a State. Tet, if a depositary government refuses to treat any particular entity as a State for purposes of the Treaty, it must accept the implication of its own decision and cannot claim that the Treaty imposes any obligations on such a ‘non-State.’ It is entitled to take this line, but it does so at the risk of jeopardizing the objects of the Treaty. If, however, it intends such an entity to be bound by the Treaty, it treats the ‘non-State'—at least for purposes of the Treaty—as a direct addressee of rights and duties under international law, that is to say, as a subject of international law. This applies as much to the attitude taken over this Treaty by the two Western depositary governments towards the so-called German Democratic Republic (East Germany) as to that of the Soviet Union towards the so-called National Republic of China (Formosa).“

45 Hearings 15-17; reprinted in 58 A.J.I.L. 171 (1964).

46 The Times (London), Aug. 4 and 16, 1963.

47 Annex to the Memorandum accompanying the Bill to consent to the Moscow Treaty, presented by the Federal Government to the Federal Council (Bundesrat) on Oct. 25, 1963, Parliamentary print ﹛Drwiksache) 390/63, p. 11.

48 Ibid. 6.

49 Hearings 14-15.

50 New York Times, Sept. 12, 1963.

51 Parliamentary print, note 47 above, p. 8.

52 Ibid. 1. See the Protocol on the Termination of the Occupation Eegime in the Federal Eepublic of Germany, Paris, Oct. 23, 1954, Art. 2, 49 A.J.I.L. Supp. 55 (1955); Protocol No. I l l on the Control of Armaments with Annexes, ibid. 134; and Declaration by the Federal Chancellor in Annex I thereto, ibid. 137.

53 For example: When depositing on Nov. 13, 1952, its instrument of ratification of the European Convention on Human Rights of 1950, the Federal Government of Germany declared that the convention also applied to West Berlin; an analogous declaration was made on March 28, 1957, when the Federal Eepublic ratified the Protocol to the Convention of 1952 (European Commission on Human Rights, Documents and Decisions, 1955-1956-1957, pp. 41 and 52). At the time of signing the Treaty establishing the European Economic Community, and the Treaty establishing the European Atomic Energy Community, Eome, March 25, 1957, the parties to the Common Market and Euratom Treaties also adopted a “Common Declaration relating to Berlin” and took note of a Declaration by the Government of the Federal Eepublic of Germany concerning the application of the treaties to Berlin. The Federal Act expressing Parliamentary approval of the Franco-German Treaty of Co-operation of Jan. 22, 1963, provides that “This Act also applies in the Land Berlin provided the Land Berlin so determines.” (Federal Act of June 15, 1963, B.G. Bl. I I , p. 705.)

54 See J. P. Jain, “The Legal Status of Formosa,” 57 A.J.I.L. 25 (1963).

55 For recent discussions of the legal status of the Peking authorities, see Jain, loo. (At.; Eosalyn Higgins, The Development of International Law through the Political Organs of the United Nations 152 (1963); Arthur Steiner, “Communist China in the World Community,” International Conciliation, May, 1961, p. 443; “The International Position of Communist China,” The Hammarskjold Forums, The Association of the Bar of the City of New York, Dec. 2, 1963, where Eustace Seligman argued that the possible substitution of Communist China for Nationalist China would not involve the admission of a new Member but only a decision on credentials (ibid. 45). Professor McDougal, on the other hand, held that this was a case of succession of states rather than of the succession of governments, that the Peking authorities themselves are said to have claimed to be the organs of a new state and to have repudiated the treaties binding on the pre-1949 state of China. The distinction between “change of state” and “change of government,” he said, has in the past varied with many different issues, and many of the past issues have, in contrast with the present conflict, been relatively trivial (Recorded statement of Dec. 2, 1963).

56 Ees. 1668 (XVI), Dee. 15, 1961, U.N. General Assembly, 16th Sess., Official Eeeords, Supp. No. 17 (A/5100), p. 66.

57 Hearings 34.

58 Information received from the Treaty Section, United Nations Office of Legal Affairs.

59 Secretary of State Rusk, in Hearings 27-28 and 50.

60 Krylov, “Les Notions Prineipales du Droit des Gens (La Doctrine Soviétique du Droit International),” 70 Hague Academy Recueil des Cours at 429 and 439 (1947, I ) ; Tunkin “Co-existence and International Law,” 95 ibid. 71 et passim (1958, III), and idem at the 1963 session of the International Law Commission, TJ.N. Doc. A/CN.4/ SE.689, pars. 65 and 66, May 29, 1963. See also: Shurshalov, “The Legal Contents of the Principle Pacta Sunt Servanda in International Relations” (German translation in Gegenwartsprobleme des Völkerrechts, Berlin (East), 1962), 132 et seq. (Selection of Contributions to the Soviet Yearbooks of International Law, 1958 and 1959); Triska and Slusaer, The Theory, Law, and Policy of Soviet Treaties 118 et seq. (Stanford University Press, 1962); and McWhinney, “Peaceful Co-existence and Soviet-Western International Law,” 56 A.J.I.L. 951 (1962).

61 P. Chandrasekhara Rao, loo. cit. note 1 above, p. 319, considers it possible that the reference to “national sovereignty” in Art. IV “may have far reaching effects on the general problem of withdrawal from international instruments.“

62 I.L.C. Report on Work of Its 15th Sess. (1963), U.N. Doc. A/5509, p. 13, Art. 39 of the draft articles on the law of treaties; also in 58 A.J.I.L. 269 (1964) (emphasis added). The Commission's text was adopted by 14 votes to 2, but there was unanimous agreement on the proposition that a treaty cannot be unilaterally terminated unless at least the conditions stipulated in the draft are met (U.N. Docs. A/CN.4/SR.689, 709 and 717). There was no trace of any dissent from this basic proposition of draft Art. 39 in the course of the preliminary consideration of the draft articles in the General Assembly. For a summary of the preliminary discussion of draft Art. 39 by the Legal Committee of the General Assembly at the latter's 18th session in September/ October, 1963, see the Eeport of the Sixth Committee, U.N. Doc. A/5601 (Nov. 6, 1963), par. 20, and U.N. Docs. A/C.6/SE. 783, 784. Draft Art. 39 was generally considered to be lex lata.

63 Cornides, loc. cit. note 1 above, p. 590, commenting on Art. IV, says that if ‘ ‘ one recalls the careful distinction between ‘ s t a t e ‘ and ‘authority’ contained in the first American draft and the reasons given for it by Mr. Wadsworth in July, 1960, it is not quite easy to believe that the Americans and the British completely overlooked the political implication of the notion of ‘national sovereignty’ in the relationship between Bonn and Pankow. The Russians, in any case, must have had it in mind.” The “first American d r a f t “ to which Mr. Cornides refers is Doc. GEN/DNT/102 of July 26, 1960, mentioned in note 39 above. “Pankow” designates the seat of the East German authorities.

64 The term was coined by Leo Gross in the Festschrift for Kelsen, Law and Politics in the World Community 76 (Lipsky, ed., 1953).

65 “'We need answer to no tribunal and to no authority other than our own conscience and requirements… . Certainly no President of the United States would hesitate to exercise the right of withdrawal if the national security interest requires i t .” Secretary of State Busk, in Hearings 18. This statement is, of course, well founded as far as the application of Art. IV is concerned. It is also correct that, as Chandrasekhara Rao (loc. cit. 321) and Martin (op. cit. 79) have pointed out, the treaty itself does not contain a provision for dealing with differences as to its interpretation or application or for third-party adjudication. This does not mean, however, that there exists no applicable provision for the settlement of disputes concerning questions other than those relating to Art. IV. Many states parties have accepted, and others may accept, the compulsory jurisdiction of the International Court of Justice. Failing that, the parties are under the obligation to seek a solution “by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement,” etc. (Art. 33 of the Charter). Both the Security Council and the General Assembly (Arts. 10 and 14) can be seised of disputes in this area.

66 Hearings 180 (Secretary of Defense McNamara).

67 Ibid. 51 (Secretary of State Eusk).

68 Ibid. 18. Cf. 58 A.J.I.L. 179 (1964).

69 Sir Humphrey Waldock, Second Eeport on the Law of Treaties, U.N. Doe. A/CN.4/ 156, Add.l (mimeographed), April 10, 1963, p. 37.

70 Sir Gerald Fitzmaurice, Second Eeport on the Law of Treaties, U.N. Doc. A/CN. 4/107, March 15, 1957, 2 I.L.C. Yearbook (1957) 54.

71 Hearings 40; see 58 A.J.I.L. 179 (1964).

72 Waldoek, op. eit. 47.

73 Ibid. Emphasis added.

74 Ibid. 36. It is of interest to note that the Harvard Eesearch in International Law (29 A.J.I.L. Supp. 1077, 1089-1090 (1935)) does not recognize a similar right of the innocent party. Nor does the American Law Institute Eeatatement of the Foreign Eelations Law of the United States (Tentative Draft No. 3, 1959, Sec. 143, text in Bishop, International Law Cases and Materials 196-197, 2nd ed., 1962), afford protection to the aggrieved party in the hypothetical circumstances which have been the starting point for our investigation.

75 The records of the session do not show why no action was taken on this particular suggestion by the Special Eapporteur. It appears that some members were of the opinion that the definition of a “material breach” in par. 3(b) of draft Art. 42: “The violation of a provision which is essential to the effective execution of any of the objects or purposes of the treaty,” takes care of Sir Humphrey's point which, in this writer's opinion, is hardly the case.

76 LL.C, op. cit. 16-17.

77 Miss Gutteridge, in V.N, Doc. A / C 6/SE.786, Oct. 8, 1963.

78 Mr. Dadzie, in TJ.N. Doc. A/O. 6/SB.791, Oct. 14, 1963. The summary record does not show whether, by the last sentence quoted in the text, the representative meant “suspend the application” erga omnes or only in the state's relationship with the offending state. He must have meant the former, as the latter is covered by the Commission's draft.

79 Mr. Plimpton, in A/C. 6/SE.784, Oct. 4, 1963.

80 See Sir Gerald Fitzmauriee's distinction, summarized above at note 70.

81 See at note 71 above.

82 U.N. Doc. A/5601 (note 62 above), par. 22.

83 I.L.C, op. cit., Commentary on draft Art. 44, par. 8, p. 22; 58 A.J.I.L. 288-289 (1964).

84 Sir Humphrey Waldock, op. cit. note 69 above, Commentary on his draft Art. 22, par. 10, pp. 67-68.