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Theory and practice of treaty registration with particular reference to agreements of the international Bank: Part I*
Published online by Cambridge University Press: 21 May 2009
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The principle of compulsory registration of treaties and international agreements, embodied in Article 102 of the Charter of the United Nations, is simple and has found general acceptance. Nevertheless, the particular provisions of both Article 102 and of its predecessor, Article 18 of the Covenant of the League of Nations, have raised a number of questions of interpretation concerning the scope of the obligation to register and the nature and scope of the penalty for failure to do so. Many of these questions have been considered by organs of the League and of the United Nations, are discussed in textbooks on international law and have been the subject of special studies. Few have been authoritatively resolved.'
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References
page 159 note 1 When reference is made hereinafter to registration of “international agreements”, that term is intended to include treaties.
page 159 note 2 Guggenheim, , Traité de Droit International Public (Geneva 1953), Vol. I, pp. 82et seq.Google Scholar; Rousseau, , Principes Généraux du Droit International Public (Paris 1944), Vol. I, pp. 302et seq.Google Scholar; Oppenheim-Lauterpacht, , International Law, 8th Edition (London 1955), Vol. I, pp. 918et seq.Google Scholar; Hyde, , International Law Chiefly as Interpreted and Applied by the United States, 2nd Edition (Boston 1947), Vol. II, pp. 1375et seq.Google Scholar; François, , Handboek van het Volkenrecht, 2nd Ed. (Zwolle 1949), Vol. I, pp. 665et seq.Google Scholar See also bibliographies in Rousseau and Oppenheim-Lauterpacht, especially with reference to problems arising under Article 18. And see, with reference to the Charter provision, Goodrich, and Hambro, , Charter of the United Nations, 2nd and Rev. Edition (Boston 1949), pp. 513et seq.Google Scholar, and Kelsen, , The Law of the United Nations (London 1950), pp. 696et seq., and 721 et seq.Google Scholar
page 159 note 3 Most recently, Brandon, Analysis of the terms “Treaty” and “International Agreements” for purposes of registration under Article 102 of the U.N. Charter, (1953) 47Google Scholar A.J.I.L. 49–69 and The Validity of Non-Registered Treaties, (1952) 29Google Scholar B.Y.I.L. 186–204. See, for bibliographies of earlier studies, Rousseau and Oppenheim-Lauterpacht, op. cit.
page 160 note 1 “Regulations to give effect to Article 102 of the Charter of the United Nations”, adopted by Resolution 97(1), hereinafter sometimes referred to as the “Regulations”. These were subsequently modified, in respects not here pertinent, by Resolutions 364B(IV) and 482(V) adopted by the General Assembly on December 1, 1949 and December 12, 1950, respectively.
page 161 note 1 Article 18 itself was without precedent. Although individual conventions had provided for registers in connection with their acceptance, there had been no general practice of recording international agreements. See Hudson, , The Registration and Publication of Treaties, (1925) 19 A.J.I.L. 273, at 276.Google Scholar
page 161 note 2 See Documents of the San Francisco Conference (hereinafter UNCIO Docs. ), Vol. III, pp. 149–151, 234, 327, 342, 389, 560.
page 161 note 3 The drafters preferred “agreement” to the Covenant's “engagement” because the latter “may fall outside the strict meaning of the word ‘agreement’”. (UNCIO Docs., Vol. XIII, p. 705Google Scholar, Report of Rapporteur of Committee IV/2, Doc. 933). It was understood, however, that “agreement” included an international agreement of a unilateral character accepted by the state for whose benefit it was made. (UNCIO Docs., ibid.). The Summary Record of the 11th meeting of Committee IV (UNCIO Docs., Vol. XIII, pp. 627–628Google Scholar) suggests, and the unpublished verbatim minutes of the meeting confirm, that the principal reason for not using “international engagement” was the belief of some delegates that it might be taken to include contracts between a state, acting through an agency such as a state trading organization, and foreign individuals, although such contracts would not constitute international “agreements”. (See footnote 3, p. 172, infra, regarding the unofficial status of the verbatim minutes.) There was apparently no intention to exclude, as a category, agreements of a commercial nature entered into between states.
page 161 note 4 “Members of the Organization are obliged to register. Furthermore, nonmember states may submit treaties and agreements concluded by them with a view to their registration; …” (UNGIO Docs., Vol. XIII, pp. 705–706Google Scholar, Report of Rapporteur of Committee IV/2, Doc. 933.)
The United States delegation, reporting on the San Francisco Conference, expressed the same view:
“A final question involved the position of states not Members of the United Nations. So far as concerns treaties between a Member and a non-member, the Member has the obligation to register. It is to be assumed that the practice followed in connection with the League of Nations would be continued and that non-member states would have the privilege of registering, just as the United States registered its treaties with the League. The Charter could not impose this as an obligation on non-members but the Charter can and does indicate that if a non-member wishes to appear before any organ of the Organization, such as the International Court, and there to invoke a treaty, it must accept as a condition the rule about the registration of treaties.” (Report to the President on the Results of the San Francisco Conference by the Chairman of the United States Delegation, Hearings on the Charter of the United Nations before the Committee on Foreign Relations, U.S. Senate, 79th Congress, 1st Session, p. 133).Google Scholar
“The Charter cannot, to be sure, impose obligations upon a non-member …” (ibid., p. 134).
And see Schachter, , The Development of International Law through the Legal Opinions of the United Nations Secretariat, (1948) 25 B.Y.I.L. 91, 115–117.Google Scholar
page 162 note 1 “This provision [Article 102(2)] also covers treaties and agreements to which both Members and non-members are parties. It is open to the latter to have such treaties or agreements registered. Moreover, it is necessary that they should be able to do so, seeing that their right to invoke the treaty or agreement before an organ of the Organization is made subject to registration.” (UNCIO Docs., Vol. XIII, p. 706Google Scholar, Report of Rapporteur of Committee IV/2, Doc. 933). And see the Report to the President cited in footnote 4, p. 161.
There was some question whether, and if so to what extent, the sanction in the League provision operated in respect of agreements between Members and non-members. See Hudson, , Legal Effect of Unregistered Treaties in Practice, under Article 18 of the Covenant, (1934) 28 A.J.I.L. 546–552.Google Scholar
page 162 note 2 See UNCIO Doc. 933, quoted in the preceding footnote, and the Report to the President cited in footnote 4, p. 161. A similar practice prevailed under the League. See instances of registration by non-members of the League cited by Rousseau, , op. cit., p. 310.Google Scholar And see Hudson, , Registration of United States Treaties at Geneva, (1934) 28 A.J.I.L. 342–345.Google Scholar
page 162 note 3 The United States delegation in the Sixth Committee of the First Assembly suggested the addition to the regulations drafted by the Secretariat of an explicit authorization of registration by any party to a treaty or international agreement. The delegation noted that it must have been intended to give non-members a right to register; otherwise “a non-member State would have been at a great disadvantage, since a Member would have been able to prevent the invocation of any treaty by merely refraining from registration. This might have resulted in great injustice.” (GA (V/2), 6th Com., p. 193, Doc. A/C. 6/56).
page 163 note 1 Committee IV/2 at San Francisco, reporting to Commission IV on language to be included in the Charter, noted that it had “preferred to depart from the formula used in Article 18 of the Covenant of the League of Nations which states that non-registered treaties shall have no obligatory force”, and that it had “confined itself to a sanction which has reference to the faculty of the parties to invoke the international treaty or agreement before the Organization, which sanction, while giving all the efficacy desired by the obligation imposed in paragraph one, will not give rise in practice to difficulties of interpretation or application.” (UNCIO Docs., Vol. XIII, p. 706, Doc. 933).Google Scholar
Cf. Guggenheim, , “La Validité et La Nullité des Actes Juridiques Internationaux”Google Scholar, Académie de Droit International de La Haye, 1 Recueil des Cours 195, 216 (1949), for an unusual situation:
“Toutefois, un tel acte nul — par exemple, une convention nonsenregistrée de délimitation de frontière — peut obtenir par son application permanente et ininterrompue une reconnaissance si universelle que sa validité ne repose plus uniquement sur son titre conventionnel, mais sur sa transformation en règle coutumière. Une fois cette transformation opérée, on pourra l'invoquer même devant les organes des Nations Unies. A une norme entachée de nullité absolue se substitue une norme valable. Il ne s'agit plus toutefois de la même règle, bien que sa contenu soit identique. La nouvelle norme, relevant d'un titre juridique différent, ne tire plus sa validité du droit conventionnel, mais du droit coutumier.”
page 163 note 2 The effect of the sanction of Article 18 was never definitively settled. According to one interpretation, the only effect of non-registration was that the treaty could not be relied upon or invoked before an organ of the League. According to another, a bilateral treaty, although coming into existence upon the exchange of ratifications, was unenforceable pending registration and could not be relied on in a proceeding before any international organ. This interpretation raised the further difficult question whether registration had any retroactive effect. And a third theory was that an unregistered treaty, even after the exchange of ratifications, had no legal effect at all. Brandon, The Validity of Non-Registered Treaties, (1952) 29 B.Y.I.L. 186–187Google Scholar, suggests that the first of these, although it had won comparatively little support under the League, influenced the drafters of Article 102. The Regulations, as noted, provide that registration shall take place only after the agreement to be registered has come into force.
Guggenheim (op. cit., p. 216, ftn. 2) raises the question whether Article 18 had not become inoperative:
“On s'est demandé si l'article 18 du Pacte de la Société des Nations, dont le contenu correspondait virtuellement à l'article 102 de la Charte des Nations Unies, n'avait pas été abrogé par une règle coutumière. Etant donné que la plupart des Etats européens, asiatiques et américains n'avaient pas tenu compte des obligations qui leur incombaient en vertu de l'article 18 du Pacte, on ne procédait qu'à des enregistrements incomplets. Dans ces conditions, on a pu affirmer que l'obligation d'enregistrement était tombée en désuétude. C'est ainsi que F. Schwab (Die Registrierung der internat. Verträge beim Völkerbund, thèse Berne. 1929) a considéré l'obligation d'enregistrement comme une simple mesure d'ordre qui n'était suivie d'aucune sanction en cas d'inexécution.”
page 164 note 1 This description is limited to those aspects of the Bank and its operations which are relevant to the subject-matter of this paper. For more detail, see The International Bank for Reconstruction and Development 1946–1953, prepared by the staff of the Bank and published by the Johns Hopkins Press (Baltimore 1954).
page 164 note 2 2 United Nations Treaty Series (hereinafter cited as U.N.T.S.), p. 134.
page 164 note 3 16 U.N.T.S., p. 341.
page 164 note 4 All but three (Germany, Korea and Viet-Nam) are also members of the United Nations.
page 164 note 5 Each subscription is divided into three parts: 2% is payable in gold or U.S. dollars, freely usable by the Bank in any of its operations; 18% is payable in the currency of the subscribing member, and may be loaned only with that member's consent; the remaining 80% is subject to call only when required to meet obligations of the Bank arising from its own borrowings or guarantees, and when called is payable, at the option of the member, in gold, U.S. dollars or the currency required to discharge the obligations for which the call is made. See Article II of the Articles of Agreement, hereinafter sometimes referred to as the “Articles”.
page 165 note 1 Or its central bank or comparable agency acceptable to the Bank. The Bank's practice has been to require a full government guarantee in all cases.
page 165 note 2 These agreements often incorporate by reference standard provisions embodied in so-called “Loan Regulations”, adopted by the Bank from time to time.
page 166 note 1 Although at an early stage of the discussions at San Francisco “the necessity for careful definition of what constitutes a treaty or international agreement was expressed”. (UNCIO Docs., Vol. XIII, p. 586, Committee IV/2, Doc. 261.)Google Scholar
page 166 note 2 Therefore they must, normally, be registered. An interesting transposition of this premise and conclusion appears in a Security Council debate on the status of Indonesia. The Netherlands had objected to the proposed participation of Indonesia in the discussion, on the ground that Indonesia was not an independent state. Syria, arguing in favor of that participation, referred to the agreement concluded by the Netherlands with the Republic of Indonesia on March 2, 1947, and to the fact that the Netherlands had registered the agreement on the following day. He thought this evidence that the Netherlands considered the agreement to be an international agreement, and “It could not have been described as an international agreement unless it had been concluded between two independent States, each independent of the other. When this agreement was published and made known to the world, all the world considered that Indonesia would be recognized as independent.” (SC, 2nd yr., No. 67, 171st mtg., p. 1629).
page 167 note 1 Doc. A/138.
page 167 note 2 GA (1/2), p. 190, Doc. A/C. 6/56.
page 167 note 3 A procedure for filing and recording, as distinct from registering, finds no basis in the language of Article 102. A similar procedure had developed under the League, however: treaties were “communicated” to the Secretariat, which then published the texts in the Treaty Series or separately. Between 1926 and 1934 the United States “communicated” its treaties; thereafter, it registered them. The Harvard Draft Convention on the Law of Treaties, (1935, Supplement), 29 A.J.I.L. 916. Kelsen, op. cit., p. 703, says that the Regulations, insofar as they differentiate between registration and filing and recording, “go beyond the framework of Article 102”.
page 167 note 4 Doc. A/C. 6/124.
page 168 note 1 Accordingly, the Secretariat refused to file and record loan agreements between the Bank and members of the United Nations. See infra p. 189.Google Scholar
page 169 note 1 At the Second Assembly, the United Kingdom representative on the Sixth Committee thought that there should be excluded from the application of Article 102 agreements “relating to a transaction of a kind which could be concluded by private persons or companies, and governed by municipal rather than by international law”. (GA (II), p. 117, Doc. A/380).
page 169 note 1 Currently (January 1957) Section 7.01 of Loan Regulations Nos. 3 and 4, dated June 15, 1956. And see Sommers, Broches, and Delaume, , Conflict Avoidance in International Loans and Monetary Agreements, (1956) 21 Law and Contemporary Problems 463 (Duke University).Google Scholar
page 169 note 3 And probably also of other “inter-governmental bodies” (see the illustrations in the Secretariat's memorandum, p. 168 supra).
page 169 note 4 Advisory Opinion: I.C.J. Reports (1949), pp. 174, 178, 179.Google Scholar
page 169 note 5 Agreement of June 29, 1951, concerning the legal status, privileges and immunities of the International Bank for Reconstruction and Development in Switzerland, Article 1 (Recueil officiel des lois et ordonnances de la Confédération suisse, 1952, p. 142).
page 170 note 1 The history of the League provision has been covered in other studies, such as Hudson, , The Registration and Publication of Treaties, (1925) 19 A.J.I.L. 273.Google Scholar It is summarized in the following pages both for ease of reference and to demonstrate the unbroken continuity of the development of the registration concept.
page 170 note 2 1 League of Nations Treaty Series (hereinafter L.N.T.S.) 9.
page 170 note 3 League of Nations Official Journal, 1921, p. 224.
page 170 note 4 GA (II), Plen., p. 704.
page 171 note 1 Records of Second Assembly, Meetings of Committees, I, p. 195; Plenary Meetings, p. 700. And see Hudson's article cited in footnote 1, p. 170 supra.
page 171 note 2 “There are exceptions which must be made to this narrow interpretation which, in my view, does not really express the intention of the framers of the League. I, personally, have only come across … financial arrangements … but I am informed by competent authorities that that kind of arrangement cannot be effectively carried out in many cases without injuring international credit… The course I venture to suggest… is that the subject should receive further consideration before the Third Assembly meets … but, in the meanwhile, nations will not be regarded as false to their engagements or as breaking the covenant if they honestly, and in spirit, carry out the suggestions so far made.”
League of Nations, Records of the Second Assembly, Plenary Meetings, p. 847.
page 171 note 3 Ibid., pp. 852, 895.
page 171 note 4 See Vitta, , La Validité des Traités Internationaux, Bibliotheca Visseriana (Leiden 1940), Vol. 31, p. 240Google Scholar, to the effect that financial agreements, in particular, were not registered. However, Rousseau, , op. cit., pp. 306–307Google Scholar, points out that in later years “technical” agreements of various kinds were in fact frequently registered, giving examples of such registrations in 1939. And see McNair, , The Law of Treaties: British Practice and Opinions (New York and Oxford 1938), p. 155:Google Scholar
“The practice of the United Kingdom and other Governments shows that some limit must be placed upon the language of Article 18. The following comments are believed to indicate the limits placed upon it by the practice of the United Kingdom Government.
(b) It is the substance of the agreements which determines their relation to Article 18. Thus the following do not fall within its scope, whether they are made by means of the diplomatic channel or between departments of the respective Governments:
Agreements between any of the Allied Governments for the settlement of claims and counter-claims in respect of goods supplied and services rendered during the Great War;
Agreements relating to loans and other financial transactions between Governments;
Agreements which are purely commercial transactions, such as the sale of surplus material, the barter of coal for coffee, etc.”
And see the Harvard Draft Convention on the Law of Treaties, (1935, Supplement) 29 A.J.I.L. 914:
“Although 3513 ‘treaties or international engagements’ had been registered on October 1, 1934, it can easily be shown that some instruments which may be thought to fall into one of these categories had not been registered; yet few general characterizations of such instruments would seem to be possible. Certain instruments relating to reparations have not been registered; some financial settlements have not been registered; most of the Special Agreements for the submission of disputes to the Permanent Court of International Justice have not been registered.”
page 172 note 1 UNCIO Docs., Vol. III, p. 389.Google Scholar
page 172 note 2 UNCIO Docs., Vol. XIII, p. 586.Google Scholar
page 172 note 3 The verbatim minutes were not approved by the Committee and therefore have no official standing. They are uncorrected and sometimes incomplete transcripts and have not been published.
page 173 note 1 The discussions always referred to agreements between states, not to agreements between states and international organizations.
page 173 note 2 UNCIO Docs., Vol. XIII, p. 792.Google Scholar This comment may be considered a compromise between the two approaches to registration. An earlier draft of the report (UNCIO Docs., Vol. XIII, p. 787) stated:Google Scholar
“The proposed text comports no restriction as to the nature of the instrument to be submitted for registration and publication; it covers every treaty and international agreement.”
page 173 note 3 UNCIO Docs., Vol. XIII, p. 67.Google Scholar
page 174 note 1 Hearings before the Committee on Foreign Relations, U.S. Senate, 79th Congress, 1st Session, on the Charter of the United Nations, p. 132.
At the United States Senate hearings, the Special Assistant to the Secretary of State for International Organization and Security Affairs, replying to a question as to the meaning of “every international agreement”, said that the provision of Article 102 “contemplates that all agreements which are of any importance should be registered”. (Ibid., p. 318.)
page 174 note 2 A Commentary on the Charter of the United Nations, Cmd. 6666, p. 14.
It will be recalled that under the League, the United Kingdom did not apply the provisions of Article 18 to “every” agreement. See supra, p. 170.Google Scholar
page 174 note 3 GA (1/2), p. 200, Doc. A/C. 6/125.
page 175 note 1 GA (II), 6th Com., pp. 112–126, Doc. A/380.
The question raised by Norway led to extensive discussion of the character of the obligation to register. Assuming that an agreement came within the scope of Article 102, was the obligation absolute or discretionary? If there was no intention to invoke an agreement, need it be registered? The United States thought that the obligation imposed by Article 102(1) was in no way diminished by the sanction of Article 102(2) and recalled as the view of Committee IV at San Francisco that although the sanction was not broad, this did not matter because the obligation was mandatory. The United Kingdom also considered the obligation mandatory, saying that were it optional the entire purpose of Article 102 would be upset. The Russian delegate thought that states might exercise their own judgment as to the need for registration. The Russian translation of “as soon as possible” was “at the earliest possibility”. A government was, therefore, permitted to appraise the possibility. If it considered that a particular treaty would not be invoked before an organ of the United Nations, then there was no necessity to register it.
The consensus, however, was that the obligation was mandatory. This view was expressed by the delegates from Belgium, Greece, Egypt, Colombia and Cuba, and the delegates from Iran and France confirmed the United States delegate's recollection of the intention of the Fourth Committee at San Francisco. It was decided not to make the character of the obligation to register the subject of a resolution for adoption by the Assembly. A resolution was approved which merely called the attention of United Nations members to the obligation of Article 102, the Committee noting that the record of the discussions on the Article would serve as a guide to member states. In view of the virtually general agreement as to the absolute nature of the obligation, the matter may be regarded as settled for the time being.
page 175 note 2 The scope of Article 102 has been discussed in other connections, e.g., during discussions in the Sixth Committee on possible measures for economy in the publication of treaties. Several such measures, including the possibility of less than comprehensive publication of annexes, have been studied by the Fifth (Administrative) Committee, which on January 22, 1957 recommended to the General Assembly that the existing system of registration and publication be continued, including in particular the method of publication of translations and annexes.
page 176 note 1 McNair, , op. cit., p. 154.Google Scholar
page 176 note 2 See for a general discussion of the meaning of “invoke”, Brandon, (1952) 29 B.Y.I.L. 198–201.
page 176 note 3 See Goodrich, and Hambro, , op. cit., p. 517Google Scholar, to the effect that this term may not include a special arbitral tribunal set up pursuant to Articles 33 or 52 of the Charter.
page 177 note 1 Subject to appeal to the Bank's Board of Governors. Such differences arising between the Bank and a former member are to be resolved by a tribunal of three arbitrators, one appointed by the Bank, one by the country involved, and an umpire who, unless the parties otherwise agree, shall be appointed by the President of the International Court of Justice (Article IX, and Section 22 of the Bank's By-Laws).
page 177 note 2 The Bank cannot be a party before the International Court of Justice (hereafter I.C.J.); Article 34(1) of the Court's Statute provides that “only States may be parties in cases before the Court”. And the nature of the Bank's agreements is not such that enforcement is likely to be sought before a non-judicial tribunal such as the Economic and Social Council.
page 177 note 3 A similar provision applies to guarantee agreements. See, for a list of loan and guarantee agreements of the Bank containing such a provision, and for the language of these provisions, I.C.J. Yearbook 1952–1953, pp. 218–236; 1953–1954, pp. 258–269, 273–274 and 276–279; 1954–1955, pp. 227–238, 240–241, 243 and 245; 1955–1956, pp. 223–241.
page 178 note 1 See, however, Kelsen, , op. cit., p. 136Google Scholar: “… the organ designated by the term ‘Secretariat’ is the Secretary-General”.
page 178 note 2 Kelsen, , op. cit., p. 521Google Scholar, even questions the “constitutionality” of the acceptance of such functions by the President of the International Court.
However, Hudson, in The Permanent Court of International Justice, 1920–1942 (New York 1943), at p. 433Google Scholar, cites numerous instances of similar provisions for a request to the Court or to its President for the performance of an extra-judicial function. The Court has complied with several such requests. Hudson comments (p. 434) that “such action by the Court or its President is not in any sense an exercise of jurisdiction; it is extra-judicial action, justified by the general interest which it serves, and it involves no departure from the restrictions imposed on the Court by its judicial character”.
The International Court and its President have continued the practice. The Court's Yearbook regularly reports on these activities, which the Yearbook characterizes as “extra-judicial”. See I.C.J. Yearbook 1954–1955, p. 44:
“A considerable number of international instruments provide that in certain eventualities the President of the Court may be requested by the contracting parties to appoint arbitrators, umpires, members of conciliation commissions, etc. States proposing to insert such a provision in a treaty generally consult the President as to his willingness to accept such a task, and submit the draft provision to him … Requests of this sort have always been acceded to and on a number of occasions circumstances have arisen in which the President has made such an appointment. A list of instruments containing a provision of this kind is given in Chapter X, Part 4, of the Yearbook, which deals with extra-judicial functions.”
The Yearbook, 1952–1953, lists a number of instances in which the President of the Court has stated his willingness to accede to requests for the appointment of arbitrators or umpires in certain eventualities.
The annual reports of the Secretary-General do not show instances of the Secretary-General's having made any similar appointments. Article 83 of the Treaty of Peace with Italy, signed on February 10, 1947 (49 U.N.T.S., p. 3), establishing conciliation commissions to settle disputes which might arise in giving effect to other specified provisions of the treaty, made provision for the Secretary-General's appointment of a commission member in certain circumstances, but it never became necessary for the Secretary-General to exercise his power.
Resolution 988 (X) adopted by the General Assembly at its tenth session (GA (X) Suppl. No. 19 (A/3116) p. 46), established an Italian Libyan Mixed Arbitration Commission consisting of three members, appointed respectively by Italy, Libya and the Sectetary-General. But the member to be appointed by the latter was to be designated jointly by the two governments, and only in the event of their failure to make their designation by a specified date was the Secretary-General to be free to choose the third member.
page 179 note 1 Particularly if the request were regarded as “invoking” the agreement, as to which see below.
page 179 note 2 Article 1 of the I. C. J. Statute.
page 179 note 3 Article 97 of the Charter.
page 179 note 4 In the Report to the President on the Results of the San Francisco Conference by the Chairman of the U.S. Delegation, op. cit., (footnote 4, p. 161, supra) p. 133, the provision is said to mean that “if a question arose in which a state wanted to take advantage of the treaty either in a case before the International Court of Justice or in some question which was being considered by the Security Council or by the General Assembly, the state would not be able to rely on the treaty unless it had complied with the obligation to register”.
page 179 note 5 Cf. discussion of Article 63 of the Court's Statute in a paper by Hambro, , The Interpretation of Multilateral Treaties by the International Court of JusticeGoogle Scholar, The Grotius Society, Problems of Public and Private International Law, Vol. 39, p. 230, at pp. 240–249 (1953).
Article 63 provides that “whenever the construction of a convention to which States other than those concerned in the case are parties is in question, the Registrar shall notify all such States forthwith;…” Hambro says that in the Anglo-Iranian case the British Government “invoked quite a number of treaties”, which were discussed by the Court in its opinion but the signatories to which were not notified, and that in the Ambatielos case the Greek Government invoked certain treaties between the United Kingdom and third States in order to found the jurisdiction of the Court, which the Court dealt with rather summarily and apparently here the signatories were likewise not notified. Hambro's explanation is that “the treaties in question were only cited in evidence or in support, and were not invoked or relied upon in the main argument”.
Hambro adds that the practice of the International Court indicates that “any treaty mentioned will not be made the subject of notification, but only such treaties as can reasonably and prima facie be deemed of such an importance that interventions must be considered possible and admissible. The treaty should have been invoked or relied upon, and not merely have been quoted as an illustration or been adduced as evidence. Intervention should not be possible in regard to treaties which presumably will only be in question incidentally”.
page 180 note 1 The umpire would appoint the second arbitrator.
page 180 note 2 I.C.J. Reports, 1949, p. 6.
page 180 note 3 (1952) 29 B.Y.I.L. 199.
page 180 note 4 Cf. in this connection the Report of the Fifth Committee during the Tenth Assembly on “Registration and Publication of Treaties and International Agreements”, in connection with a proposal that the Secretariat be authorized to omit, with the consent of the parties, certain annexes from the published text of treaties:
“It was pointed out that the consent of the principal parties was not the crucial test whether material should be omitted from publication; it was not the party to an agreement whose interests were protected by Article 102.… An international instrument registered with the United Nations was the common property of the international community even when the parties thereto were directly affected.” (Doc. A/3058).
page 182 note 1 UNCIO Docs., Vol. XIII, p. 628, Summary Report of 11th Meeting of Committee IV/2, Doc. 629. The draft before the Committee was in all material respects identical with the provisions finally adopted.
page 182 note 2 UNCIO Docs., Vol. XIII, p. 703Google Scholar, Doc. 933. This report was approved by Commission IV and the Conference adopted without discussion the text it proposed.
page 182 note 3 GA (II), 6th Com., p. 123, Doc. A/380.
page 183 note 1 “‘Forthwith’ means as soon as the formal conditions of validity required by international law, apart from the Covenant, are satisfied.” Jones, J. M., Full Powers and Ratification, Cambridge University Press (1946), p. 107.Google Scholar President Wilson's original draft of Article 18, quoted in Jones, , op. cit., p. 109Google Scholar, provided that every treaty to which a League member was a party must be made public in its entirety within 30 days after it became binding or else be deemed abrogated.
page 183 note 2 See Summary Report of 11th Meeting of Committee IV/2, UNCIO Docs., Vol. XIII, p. 628Google Scholar (Doc. 629). The verbatim minutes (see footnote 3, p. 172, supra) show that there was general recognition of the vagueness of “as soon as possible”. Some delegates appeared to think that regulations by the General Assembly might later provide clarification. The opinion was also expressed that it would be for the International Court to decide the exact meaning of the phrase.
page 183 note 3 The loan and guarantee agreements of the Bank normally come into force upon notification by the Bank to the borrower and/or guarantor after the latter have fulfilled specified conditions. Sometimes agreements do not come into force for many months after they have been concluded.
page 183 note 4 This admittedly introduces uncertainty as well as flexibility. Additions to the Dumbarton Oaks proposals suggested by delegations at San Francisco would have required registration “forthwith”, following the Covenant provision (Netherlands, Belgium, Ethiopia), or “immediately” (France, Cuba). One (Philippines) would have required “every member” to submit for registration a copy of any agreement concluded with any other state or states “within 30 days after ratification by the governments concerned”, the agreement not to be binding “unless this requirement is fulfilled”. (UNCIO Docs., Vol. III, pp. 327, 342, 389, 560; Vol. XIII, p. 737).Google Scholar
In Sub-Committee 1 of the Sixth Committee during the First Session of the Assembly, the French representative queried the meaning of “as soon as possible”, urging the importance of determining not only the various kinds of agreements to be registered but the time when registration should be accomplished in respect of each kind of instrument. But the Sub-Committee decided that the matter was beyond its competence. (Repertory of United Nations Practice (New York 1955), Vol. V, p. 302).
In discussions in the Sixth Committee during the Second Session of the Assembly, it was again suggested that the Regulations prescribe a time-limit for registration. No limit was adopted and the United Kingdom delegate commented that to specify one would exceed the terms of the Charter. (GA (II), p. 123 Doc. A/380). Lauterpacht suggested specification of a time-limit in his Report on The Law of Treaties (International Law Commission, U.N. Doc. A/CN. 4/63, p. 217).
The first Committee of the League's Second Assembly unanimously adopted an amendment to Article 18 providing that a treaty registered within three months after being concluded would be considered retrospectively as existing from the date of its conclusion, while one registered thereafter would be binding only from the time of registration. The Assembly did not act upon the amendment. (Records, Second Assembly, Plenary Meetings, pp. 839–841).
page 184 note 1 It is, however, conceivable that an organ of the United Nations, having occasion to consider whether a particular member had fulfilled its obligations under the Charter generally, would take into account the member's promptness in registering its agreements. (“… Failure to register a treaty or international agreement made after October 24, 1945, is a breach of the Charter. Persistent failure may be construed as an offence against Article 2(2) and, theoretically, may entail expulsion, under Article 6.” Bentwich, and Martin, , A Commentary on the Charter of the United Mations, 2nd Impression, (London 1951), p. 178.Google Scholar The question of timeliness does not appear to be relevant to the Secretariat's acceptance of an instrument offered for registration. The purpose of Article 102 suggests that any agreement to which it applies should be accepted irrespective of when it is offered, without prejudice to a subsequent determination of the question whether there had been compliance with the provisions of the Charter.
page 184 note 2 In determining whether registration has taken place “as soon as possible”, a United Nations organ would perhaps be more inclined to leniency where the agreement is invoked by a non-member of the United Nations or by a specialized agency, upon which the Charter imposes no registration obligation, than where it is invoked by a member of the United Nations; it seems reasonable to permit the non-member party to assume that the initiative in registering will be taken by the member party.
page 185 note 1 This case is to be distinguished from one in which the parties never doubted that registration was required and where there were no extenuating circumstances to excuse non-registration or tardy registration. In such a case later registration should not be permitted to cure the defect. Nor does it seem correct to say, as does Brandon, (1952) 29 B.Y.I.L. 200, that while later registration would not permit the agreement to be invoked before the same United Nations organ, it could be invoked before another organ. It is hard to see how the second organ could conclude that registration had taken place “as soon as possible”. Brandon's view is apparently based in part on the consideration that any other view would discourage registration. But when an agreement is invoked, its contents are likely to become known, so that the objective of the Article is achieved with respect to the particular agreement even without registration. Moreover, this consideration would appear to compel the conclusion that an agreement may be invoked if it is registered at any time prior to its being invoked. But this conclusion is, and properly so, rejected by Brandon.
page 185 note 2 But even under this interpretation it would not necessarily follow that an organ of the United Nations is prevented from taking cognizance of an unregistered agreement of its own motion. “Paragraph 2 of this Article is intended to inflict a penalty on offending Members, and not to restrict the Organisation in the discharge of its functions.” Bentwich, and Martin, , A Commentary on the Charter of the United Nations, 2nd Impression (London 1951), p. 179.Google Scholar See also Goodrich, and Hambro, , op. cit., p. 517Google Scholar; Brandon, (1952) 29 B.Y.I.L. 193.
page 186 note 1 See footnote 3, p. 172, supra.
page 186 note 2 Not to permit a party to invoke an agreement will presumptively work a hardship on that party. And it is for that reason, among others, that we think a United Nations organ should have discretion to disregard minor instances of non-compliance. On the other hand, the hardship argument cannot, as a general proposition, be used to justify disregard of major instances of non-compliance, because the Charter intends that there shall be a penalty for non-compliance.
page 187 note 1 That is, among those made with members of the United Nations.
page 188 note 1 As of November 1947, only 418 treaties had been sent in, of which 113 had been registered and 45 filed; registration of the remainder awaited completion of certain formalities. Only 20 members of the United Nations had sent in any treaties at all, the majority coming from four or five countries (U.N. Doc. A/C/6/SR. 54).
page 188 note 2 The Bank proposed to the Secretariat in 1947 that the agreement defining the terms of the relationship between the Bank and the United Nations, then under discussion, should expressly declare Article 102 to be inapplicable to any financial agreement to which the Bank was a party. It offered voluntarily to file with the Secretary-General a copy or summary of each of its loan and guarantee agreements. The Secretariat, however, declared that it was not possible to contract out of an Article of the Charter in this way. The agreement concluded between the Bank and the United Nations does not incorporate the proposed or any similar provision.
page 188 note 3 Moreover, Article V of the agreement between the Bank and the United Nations provides that the parties will, to the fullest extent practicable and subject to limitations imposed by the confidential nature of some of the material given to them by their members, arrange for the current exchange of information of mutual interest.
page 189 note 1 The formal requirements of the Regulations with respect to registration, set forth in Articles 2, 5 and 8, are declared by Article 11 to apply mutatis mutandis to instruments filed and recorded.
page 189 note 2 From December 14, 1946 to August 30, 1950, 1,024 treaties and agreements were registered (106 registered ex officio by the Secretariat, 771 by 28 governments and 147 by four specialized agencies). During the same period, 259 treaties and agreements were filed and recorded (219 by 12 governments, 32 by the Secretariat and eight by three specialized agencies). (Report of the Secretary-General, September 29, 1950, A/1408).
Many of these agreements grew out of wartime or post-war activities and related, for example, to settlement for lend-lease, reciprocal aid, surplus war property and claims. But there were also registered a large number of agreements extending credit, making loans or having to do with commodity purchases — a striking change from practice under the League, especially as described by McNair, footnote 4, p. 171, supra.
And by 1956, there had been registered “more than 600 transport agreements (including air, rail, road, inland navigation, maritime navigation, inland transport), about 160 cultural and education agreements, more than 140 technical assistance agreements within the framework of United Nations technical assistance and an equally large number of inter-governmental agreements in the same field, more than 200 agreements on economic relations and aid, more than 370 commercial agreements and about 200 payments agreements, more than 300 agreements relating to financial and monetary questions, more than 400 agreements relating to military questions, of which about 110 relate specifically to army, air and naval missions, etc.” (Report of the Secretary-General to the 11th Session of the General Assembly on Registration and Publication of Treaties and International Agreements, A/3168, August 16, 1956, paragraph 108).
page 191 note 1 The Secretariat initially took the position that there could be published as annexes only documents which were either physically attached to a registrable agreement or expressly referred to therein as an annex; neither of these conditions was met, as a general rule, in the case of loan agreements with a borrower not a state. Consequently, the Secretariat at first considered that the Bank's Loan Regulations could not be published. The Loan Regulations are “accepted” by the parties to a loan agreement, the agreement providing that the Regulations have the same force and effect “as if they were fully set forth” therein. But they are neither expressly “made a part” of the loan agreement nor physically attached to it as an annex. The Bank felt that the text of these agreements and the Loan Regulations formed an essential part of the transaction evidenced by a registrable guarantee agreement, and that they should therefore be published as annexes to the latter. After discussion, the Secretariat agreed to make an exception to its general practice by treating these documents as annexes, on the ground that they form an essential part of the registratale agreement, that they are referred to in it and, in the case of the loan agreements, that they are executed contemporaneously with the registratale agreements.
page 191 note 2 In this category fall letters which explain Bank policy, letters agreeing to lists of goods to be purchased with proceeds of a loan, descriptions of projects, etc.
page 191 note 3 The Secretariat has declined to accept as registrable the documents of this character relating to loans made to parties not states, on the ground that such documents, having been executed subsequent to the loan agreements, cannot be treated as annexes, while the fact that they regulate aspects of transactions with a party which is not a state makes them ineligible for registration independently. In taking this position, the Secretariat pointed out that to do otherwise would depart from established practice. The Secretariat did propose publication of the letters as footnotes to the relevant provisions of the loan agreements. The Bank did not consider this satisfactory and continues to transmit such letters to the Secretariat for registration. Presumably no problem would arise where the change in the loan agreement is submitted to the guarantor for approval, since the guarantor's approval could be registered (or filed and recorded), and the document embodying the change could be published as an annex thereto.
page 191 note 4 However, the Bank's agreement with the United Nations was filed and recorded by the Secretariat ex officio, and its agreement with Switzerland (see footnote 5, p. 169, supra) has been filed and recorded (although not yet published in the Treaty Series).