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The Interim Obligation between Signature and Ratification of a Treaty: Issues raised by the recent actions of signatories to the Law of the Sea Convention with respect to the mining of the deep seabed*

Published online by Cambridge University Press:  21 May 2009

Paul V. McDade
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The United Nations General Assembly has recently appealed to all countries to “refrain from taking any action directed at undermining the [law of the Sea] Convention or defeating its objects and purposes”. The Convention on the Law of the Sea made at Montego Bay in September 1982 took nine years to write following five years of preparatory work and covers all the major law of the sea issues; resource exploration and exploitation, navigation and overflight, conservation and pollution, fishing and shipping. The Convention has not yet entered into force and it may be some time before it does so. During that time existing international law will be augmented along the Convention lines by the national legislation of states seeking to safeguard their interests while the Convention remains inchoate. Although the aforementioned Resolution is non-binding and of recommendatory value only, it does appear to stress an existing rule of international law which has something to say about the conduct of states which have signed the Law of the Sea Convention prior to its entry into force. Article 18 of the Vienna Convention on the Law of Treaties requires that a nation, after signing a treaty, refrain from “acts which would defeat the object and purpose of a treaty” until such time as the nation indicates its intent not to ratify. The extent of the duties incumbent upon states as a result of this obligation is unclear, but the General Assembly Resolution is perhaps evidence that, as time progresses without the entry into force of the Convention, the obligation shall play a significant role in the regulation of the conduct of signatory states towards the Convention in many of the diverse areas with which it is concerned. The object of this article is to analyse one particular area of the Convention, that of the regime for the mining of the resources of the International Seabed Area under Part XI of the Convention. This throws into relief the problems which signatory states may face as they seek to legislate or take action to secure rights and to comply with duties under a Convention which is not yet in force. It may be that the citation of the duty not to defeat the object and purpose of the Convention is far more problematic in terms of a successful outcome to the negotiations than at first appeared.

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Articles
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Netherlands International Law Review , Volume 32 , Issue 1 , May 1985 , pp. 5 - 47
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Copyright © T.M.C. Asser Press 1985

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References

1. United Nations General Assembly Resolution 38/59a 14 December 1983. The voting was 136 in favour, 2 against (Turkey, USA) and 6 abstentions (Belgium, Bolivia, West Germany, Israel, Italy, United Kingdom).

2. United Nations Convention on the Law of the Sea UN Doc/A/Conf.62/122 7 October 1982 Reprinted 21 International Legal Materials (hereafter ILM) (1982) p. 1261 Part XI, ‘The Area’ Art. 133–181 and related Annexes.

3. See n. 14 infra.

4. Part XI, n. 1 supra at Ait. 136 “The Area and its Resources are the Common Heritage of Mankind”.

5. Resolution 1 of the Final Act of the Third United Nation Conference on the Law of the Sea (UNCLOS III) established the Preparatory Commission for the International Sea-bed Authority and the International Tribunal for the Law of the Sea UN Doc A Conf 62/121. This preparatory Commission is to prepare, inter alia, “those matters normally required for the establishment of a new international organisation and to undertake additional tasks that would permit the Authority to undertake without delay the organisation and control of activities in the international seabed area, and allow its Enterprise to start mining operation in the same time from the other entities…” See Report of UN Secretary General, submitted to the 38th Session of the UN General Assembly, UN Doc A/38/570 Reprinted 22 ILM 1322–42. The Preparatory Commission met 15 August – 9 September 1983; Report of the Chairman of the Preparatory Commission on its structure and the procedures and Guidelines for Registration of Pioneer Investors UN Doc/205/PCN/27 reproduced 22 ILM (1983) p. 1343; and report on the Rules of procedure of the Preparatory Commission UN Doc/205/PCN/28 reproduced 22 ILM (1983) p. 1352. The Commission (states signing or acceding to the Convention) and observers (states signing the Final Act of the Conference) also met twice in 1984 and will meet 11 March to 5 April 1985, see Kimball, L. ‘Conference Report’ 8 Marine Policy (1984) p. 363Google Scholar.

6. United States Deep Seabed Hard Mineral Resources Act 1980 19 ILM (1980) p. 1003; Federal Republic of Germany Act of Interim Legislation of Deep Seabed Mining 1980, 20 (1981) p. 323; United Kingdom Deep Seabed Mining (Temporary Provisions) Act 1981, 20 ILM (1981) p. 1217; France Law on the Exploration and Exploitation of Mineral Resources of the Deep Seabed 21 ILM (1982) p. 808; Soviet Union 21 ILM (1982) p. 551 and Japan 22 ILM (1983) p. 102. The Italians have also been contemplating legislation for some time. Belgium and the Netherlands have also yet to take this step. The Interim Arrangement (hereafter ‘the Reciprocating State Agreement’) can be found in ILM (1982) 950. The author is indebted to the Dutch Ministry of Foreign Affairs which made a copy of the Provisional Understanding available to him. Party to the first agreement are France, the United Kingdom, the United States and West Germany. These states together with those of the ‘like-minded’ group during the UN Conference on Sea Law (Japan, Belgium, Italy and the Netherlands) are also party to the Provisional Understanding.

7. Keesings Contemporary Archives 319333, see also US Proclamation of a 200 mile Exclusive Economic Zone 22 ILM (1983) p. 460, and for the United Kingdom, statement in the House of Commons by M. Rifkind, 2 December 1982, referring to the “Undesirable Regulatory Principles” on which the seabed mining provisions are based (House of Commons Hansard Vol. 53 Col. 404. The closing date for signature of the Convention, 9 December 1984 has passed without US, British or German signature.

8. These arguments will be developed in Part 3 below.

9. For this respect, see the study by Professor Brown in which he concludes with regard to United States, German, British and French Legislation: “… The reality is that the Reciprocating States Regime which will be based on this unilateral legislation will include only a selection of features suggested by the Draft Convention, chosen and substantially modified by the States concerned… there is a nod rather than a bow to the common heritage regime’, Brown, E.D., “The Impact of Unilateral legislation on the Future legal Regime of Deep-Sea Mining” 20 Archiv des Völkerrechts (1982) p. 145 at p. 151Google Scholar.

10. France and the Soviet Union signed the Convention at The Montego Bay signing ceremony, and Japan some months later.

11. Seen. 7 supra.

12. See Brown, supra n.9., at p. 151 and Part 3 belowGoogle Scholar.

13. In 1981 a group of legal experts established by the Group of 77 even claimed that interim legislation was contrary to international law – letter of 23 April 1979 from Group of Legal Experts on the Question of Unilateral Legislation to the Chairman of the Group of 77, UNCLOS III Official Records Vol. XI (1980) p. 181. See also statements made by several states after the signing of the Convention which are summarised in the UN Monthly Chronicle (February 1983) pp. 10–13.

14. Vienna Convention on the Law of Treaties UN Doc/A/Conf. 39/27 Reprinted 8 ILM (1969). The Convention entered into force on the deposit of the 35th instrument of ratification on 27 January 1980 and currently has 39 parties including Japan but excluding France and the Soviet Union. See Multilateral Treaties in Respect of which the Secretary General of the United Nation Performs Depositary Functions UN Doc S1/LEG/SF.R-D/13 at p. 597 (1980).

15. Holloway, K., Modern Trends in Treaty law (London 1967) pp.40–64Google Scholar; Jones, J. Mervyn, Full Powers and Ratification (Cambridge University Press 1946)pp.66–157Google Scholar; Rogoff, M., “International Legal obligation of Signatories to an Unratified Treaty” 32 (1980) Maine Law Review pp. 266–72Google Scholar.

16. Blix, H., “The Requirement of Ratification” 30 BYIL (1953) p. 352Google Scholar; Brownlie, I., Principles of Public International Law (3rd ednLondon 1975 p. 600–10)Google Scholar.

17. Article 26 Vienna Convention: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”.

18. In the absence of any expression to the contrary, signature alone binds a state (see Blix, supra n. 16, and the examples therein). The Vienna Convention is inconclusive on this point. See Sinclair, I.The Vienna Convention on the Law of Treaties, 2nd edn. (Manchester 1984) pp. 39–41Google Scholar. Signature also has the effect of conferring rights upon the signatories which can in some cases be substantial; The Convention is a good example, see also Advisory Opinion on the Legal Effect of Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide 1951 ICJ Reports, at p. 1.

19. Signature acts as authentication of an adopted text and may generally be regarded as having the effect of “concluding” a treaty; Oppenheim's, International Law, 8th ed., Lauterpacht, H. ed. (London 1955) Vol. II, pp.903–5)Google Scholar, also Holloway supra n. 15, 43, 44. Signature may also mean that certain treaty clauses become provisionally applicable (Article 25 Vienna Convention).

20. Except where expressly agreed to the contrary, signature of a treaty, does not oblige a state to ratify it; Holloway supra n. 15, O'Connell, D.P.International Law Vol. 1 (London 1965) p. 222Google Scholar; dissenting opinion of JudgeMoore, in Mavrommatis Palestine Concessions (Jurisdiction) case [1924] PCIJ Ser A no. 2 pp. 333–34Google Scholar. Nor did any formulations relating to the non-discretionary nature of ratification survive in the Final Draft Articles presented by the International Law Commission. However, governments often justify theii refusal to ratify a treaty on political, economic or military grounds without any reference to their legal right not to ratify. Claims have been made, that as a matter of good faith or the rule against the abuse of rights, as an absolute minimum signature requires a state to present a treaty to its constitutional procedure for ratification. (Article entitled ‘Signature’ submitted by Sir Hersch Lauterpacht to the ILC, Law of Treaties [1953] 27 YBILC 110. UN Doc A/CN 4/1953 Add 1.)

21. The UNCLOS III negotiation provides an excellent example. Despite the fact that signature entitles states to participate in the Commission regarding the future application of Conventional rules and allows consortia to operate under the Regime for Preparatory Inventment Protection, the consistent opposition of some states, chiefly the USA, and the knowledge that the convention in its final form would not to be ratified deterred those states from signing the Convention despite a legal view expressed by US Representative Elliot Richardson minimising the effect of signature. Thus, the solemnity of signature could not be ignored in the face of consistent opposition to ultimate ratification.

22. Lauterpacht, “Report on Law of Treaties” supra n. 20 at pp. 108–10Google Scholar.

23. Report by the Attorney General and Queens Advocate cited Nair, A. McLaw of Treaties, 2nd edn. (Oxford 1961) p. 200–1Google Scholar.

24. Cf., Schwarzenberger, G., International Law, Vol. I, 3rd. edn. (London 1957) p. 454Google Scholar. “If Parties owe each other duties during the interval between signature and ratification, this is so because of the ratification of the treaty”.

25. 165 Consolidated Treaty Series (1978) pp. 485, 502.

26. Hudson, M., International Legislation Vol. 2 (Washington 1931) p. 343Google Scholar. Another example is that of the unratified Washington Treaty for the Limitation of Naval Armaments 6 February 1922. “The United States, the British Empire and Japan agree that the status quo at the time of the signing of the present treaty, with regard to fortifications and naval bases shall be maintained …”; Article 19 43 Stat. 1655 TS No 671 25 L.N.T.S. 202.

27. McNair, , supra n. 23, pp. 200–1Google Scholar (This treaty concerned the grant of a constitution to the Bay Islands). This statement was echoed by Lord Palmerston in 1864 who, having accepted the creation of an obligation by signature, stated that signatories were under an interim obligation “whilst the ratification is under consideration, not to do anything which might affect any of the stipulations of the treaty”, Hansard, , Commons (Third Series) Vol. 174, Col. 787Google Scholar.

28. Letter of Secretary of State Hay to General Reyes, 5 January 1904, (1803) Foreign Relations US 294–299 (1903). For a statement to the contrary see possibly statement of Secretary Hull to the British Ambassador: “This government considers that, in the case of any treaty or convention to which it is a signatory, it has not accepted any obligations or acquired any rights until it has duly ratified such instruments in accordance with its constitutional procedure and until the requirements of the treaty or convention with reference to exchange or deposit of ratification also have been fulfilled by it”. Reprinted in Hackworth, G., Digest of International Law (1943) p. 199Google Scholar.

29. While some authors believe that the inclusion of the obligation on the face of the treaties consituted evidence of an emerging customary rule prohibiting action tending to defeat a treaty's object and purpose (Rogoff supra n. 15); others believe that the necessity to include such treaty provisions, in the first place shows no general obligation flowing from international law and that secondly the lack of a sufficient number of conventions containing such clauses followed by confirmatory state practice also detracts from the possibility of establishing a norm of customary international law Cahier, P., Mélanges Fernand Dehousse Vol. 1 (Bruxelles 1979) pp. 31–37Google Scholar “l'obligation de ne pas priver un traité de son obfet et de son but avant son entrée en vigueur”. A recent example is that cited in Sinclair supra n. 18 at pp. 43–44 of the instrument entitled ‘Procedure for the Adoption of Certain Decisions and Other Measures to be taken during the Period preceding Accession’ annexed to the Final Act of the 1972 Accession Treaty to the European Communities.

30. This is also reflected in the discussions on decision and doctrine in n. 23 and 24 infra.

31. E.g., the UN Convention on the Law of the Sea, Resolution II to the Final Act, Note also the discussion in the American Senate on the effects of signature of the Salt II Treaty in Rogoff supra n. 15.

32. 16 Canadian Yearbook of International Law (1978) p. 166.

33. 6 Netherlands Yearbook of International Law (1975) pp. 283–4.

34. 33 Schweizerisches Jahrbuch für internationales Recht (1977) pp. 150–1.

35. Letter of Elliot Richardson, Special Representative of the President for the Law of the Sea Conference 15 June 1979 to Congressman Gerry Studds regarding the possible legal effect of US signature of the Law of the Sea Convention.” “Signature … under customary international law imposes no obligation other than refraining from acts which would defeat the object and purpose of the treaty. This very general obligation continues only until such time as it becomes clear that the State no longer intends to become a party to the treaty …” (Reprinted in Law of Sea: Hearings on H.R. 2759, Before the Subcommittee on Oceanography of Committee of Merchant Marine and Fish 6th Congress 1st Session 206 (1979). Also answers of Deputy Legal Adviser, Department of State concerning provisional application of treaties: In the majority of cases the obligation not to defeat the object and purpose of the treaty means a duty to refrain from taking steps that would render impossible future application of the treaty when ratified … (this was) … a customary international, in the Vienna Convention on the Law of Treaties, and in United States Law”. (74 AJIL (1980) p. 931–3). Also Memorandum from Robert Owen, Legal Adviser, Department of State 21 February 1980, re the obligation. “.. Moreover the growing body of case law which regards the Vienna Convention as evidence of contemporary customary international law makes clear that whatever doubt may have existed in the past, the rule expressed in Article 18 of the Vienna Convention has become a legal obligation binding upon all states” (Reprinted in S. Exec. Rept. No. 96–33, 96th Congress, 2nd Sess. (1980) p. 47).

36. USSR made several allusions during and after the Vienna Conference to the fact that Art. 18 or its predecessor draft Art. 15 represented customary international law. See Turner, , “Legal Implications of Deferring Ratification of Salt II”, 21 Virginia Journal of International Law, (1981) pp. 766–7Google Scholar.

37. “Megalidis v. Etat Turc” 8 Receuil des Décisions des Tribunaux Mixtes (1928) p. 386. Art. 65 of the Lausanne Treaty prohibited such a seizure of property.

38. [1926] PC1J Ser. A. No. 7, reported in 1 World Court Reports (1905) pp. 475, 570.

39. The Polish interpretation had been followed by the Polish Supreme Court in “Polish State Treasury v. Von Bismark”. Judgement of 28 April 1923, Annual Digest of Public International Law, Vol. 2 (1923–1924) pp. 80–81Google Scholar.

40. Supra p. 30.

41. [1923] PCIJ Ser B. No. 6, reported in 1 World Court Reports (1905) p. 27. This decision was followed in ‘Reparations Commission v. German Government’, 2 Annual Digest (1923) pp. 341–2Google Scholar and in a decision of the High Court of Danzig in 1928, Rentengutsvertrag (Danzig) case, 4 Annual Digest (1927–1928) p. 402Google Scholar.

42. Reprinted in J.B. Moore, History and Digest of International Arbitrations to which the United States has been a Party (1898) p. 3798. Lieber went on to say, “But it is well understood that a peace is not a complete peace until ratified, that as a matter of course, the ratifying authority has the power of refusing unless for that time it has given up the power beforehand.”

43. Supra n. 18.

44. Mavrommatis Palestine Concessions (Jurisdiction) Case reported in 1 World Courts Reports (1905) p. 297. At the time of the filing of an application in the Permanent Court against the United Kingdom, Greece had signed the Treaty of Lausanne and Supplementary Protocol XII but the Treaty had not entered into force. Before the Final judgment the Treaty was ratified by both Greece and the United Kingdom and the Court held that the Greek filing was legally effective despite the fact that Art. 36 of the Court Statute limited its compulsory jurisdiction to certain matters “in treaties and conventions in force”.

45. Case concerning the Territorial Jurisdiction of the International Commission of the River Oder [1929] PCU Ser A. No. 23, 2 World Court Reports (1906) pp. 609–11. Poland was held not to be bound by the provisions of a Convention which it had signed but not ratified. The Court stated: “it cannot be admitted that ratification is superfluous.” In the North Sea Continental Shelf cases [1969] ICJ 3 the Court also refused to admit that the provisions of the Geneva Convention on the Continental Shelf of 1969, which West Germany had signed but not ratified, were binding. See also Iliolo Claims case, 3 Annual Digest (1925) p. 336Google Scholar, where it was held that where territory was ceded by treaty, the sovereignty de iure and obligation upon the sovereign began only when the treaty was ratified.

46. Schwarzenberger, G., supra n. 24, pp. 455–8Google Scholar.

47. Schrager v. Workmen's Accident Insurance Institute for Moavic, and Silesia, 4 Annual Digest (1927–1928) Case No. 274Google Scholar.

48. Termination of Employment (Austria) Case 156, 23 ILR (1956) pp. 470–1.

49. In the case of Heany v. Government of Spain and Adolpho Gomero, US Court of Appeals 2nd Circuit 2 July 1971.

50. X. v. Mayor and Aldermen of Haarlem, , 9 Netherlands Yearbook of International Law (1978) p. 414Google Scholar. See also Ministère Public v. Ibrahim el Moussabeh, Ann. Dig. (1938) pp. 471–72; and Domingés Caitano Rodrigues v. Ministeré Public, 9 Ann. Dig. (1938) p. 71. See Jean Pierre Cot n. 51 infra “Certes la jurisprudence tant des tribunaux arbitraux mixtes que des commissions de conciliation instituées par les traités de paix de 1947a affirmé que les traités de paix sont soumit aux mêmes règles d'interpretation que les autres conventions”: see his note 20.

51. Several commentators regard the decisions as establishing the legal obligation not to defeat the object and purpose of the treaty prior to its entry into force eg. Holloway, K., supra n. 15, p. 40–46Google Scholar; O'Connell, , supra n. 20, p. 222–4Google Scholar, Cheng, B., General Principles of International Law as Applied by International Courts and Tribunals (London 1953), p. 111–12 n. 28Google Scholar; Turner, R.F., “Legal Implications of deferring Ratification of Salt II” 21 Virginia Journal of International Law (1981) p. 747Google Scholar; Hassan, T. “Good Faith in Treaty Formation” 21 Virginia Journal of International Law (1981) p. 444Google Scholar; (Lauterpacht, Waldock and Fitzmaurice, Special Rapporteurs to the International Law Commission on the subject of the Law of Treaties may also be numbered amongst this group); Cot, J.P., “La Bonne foi et la conclusion des traités” Vol. II Revue Beige de Droit International (1968)Google Scholar. Opposed to this attribution of concrete legality, but clearly in a minority today, one finds Kelsen, H., Principles of International Law, 2nd edn., ed. Tucker, R. (1962)Google Scholar, McNair, , supra n. 23, at p. 204Google Scholar, Cahier, supra n. 29. Morvay, W., “The Obligation of a State not to frustrate the object of a treaty prior to its entry into force,” Vol. 27 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht (1967) pp. 451–62Google Scholar. (Special Rapporteur Brierly, the first rapporteur to the International Law Commission is also amongst this number, as were the drafters of the Harvard Research into International Law 29 AJIL (Supp. 1935) pp. 778–87).

52. See Ambatielos case (Greece v. UK) 23 ILR (1956) p. 306, and Art. 28 Vienna Convention on the Law of Treaties supra.

53. Cahier, , supra n. 29, p. 34Google Scholar “Ces prises de positions très divergentes ne militent guère en faveur de l'existence d'une règle coutumière en la matière.”

54. Crandall, S., Treaties, Their Making and Enforcement 2nd edn. (1916)Google Scholar, cited Harvard Research Draft see supra n. 51. Also Cavaglieri, A., “Règies Générates du Droit de la Paix” 26 Recueil des Cours (1929)Google Scholar, [a state is bound to]… refrain from all actions which would render more difficult or even impossible the future execution of the treaty,” Anzilotti, D., 1 Cours de Droit International (1929) p. 372Google Scholar; Wilcox, H., The Ratification of lnternational Conventions (London 1935) p. 67Google Scholar “It is generally agreed that between the date of signature and the entry into force of a treaty the contracting parties are under an obligation to do nothing which might impair the operation of its clauses”, Nisot, J., “La Force Obligatoires de Traités Signés non encore ratifiés” 57 Journal de Droit International (1930) p. 878Google Scholar; J. Jones, supra n. 15, “Signature may in conditions not yet defined by positive law commit a state not to exploit the signed text for its own purposes by abusing its discretion to ratify.”

55. Harvard Draft Convention on the Law of Treaties supra n. 51, Art. 9.

56. The Commentary said any policy which would breach the treaty should morally be deferred until a state has notified others of the consequences. Such a situation was to depend on the circumstances of each case as did the element of reasonable time which was said to be 'well understood by writers' pp. 786–87.

57. Dehousse, F., La Ratification des Traités (Sirey, Paris 1935) p. 67Google Scholar: supra, n. 51, p. 466–68; McNair, , supra n. 23, p. 204Google Scholar; American Law Institute Restatement of Law (1962) p. 454 in which signature was said to impose a political commitment only.

58. Cheng, , supra n. 51, p. 106–20Google Scholar; also Holloway, supra n. 51, p. 40–64Google Scholar; O'Connell, , supra n. 20, p. 222–4Google Scholar; Glennon, M.J., “The Senate Role in Treaty Ratification”, 77 AJIL (1983) pp. 272–278Google Scholar.

59. McNair, supra n. 23.

60. Cited infra.

61. “Good faith was omitted to avoid controversy”, Fourth Report on the Law of Treaties, Waldock Article 17, 3 YBILC (1965) at p. 53–54Google Scholar.

62. See Hassan, , op. cit., n. 51, p. 444Google Scholar; cf., Kelsen, H., The Law of the United Nations: A Critical Analysis of its Fundamental Problems, 4th edn., (London 1964)Google Scholar, Kelsen distinguishes between moral and legal principles, arguing that, “while moral maxims are intended to be obeyed without reference to any specific sanction, legal norms are always supported by societal threat of coercive action against the law breaker.” This absence of sufficient circumstances to enable the breach of the interim obligation to be backed by threat of societal sanction will be developed below.

63. Gutteridge, , “Abuse of Rights” 5 Cambridge Law Journal (1935) p. 22CrossRefGoogle Scholar.

64. Lauterpacht Opinions in Norwegian Loans case, ICJ Reports (1957) p. 13Google Scholar and Interhandel ICJ Reports (1959).

65. J.P. Cot, op.cit., n. 51.

66. Judge Ammoun in his separate opinion in the Namibia Opinion also advocated such an approach. Discussing the use of discretionary power he states: “A judge cannot rely on his personal judgment … an objective criterion or standard is necessary … and is afforded by the general conduct of states and international organisations as a whole as well as municipal precedents.” [1971] ICJ Reports 16 p. 88–9. Sep Op.Judge Ammoun.

67. Report of Special Rapporteur Brierly [1952] 2 YBILC 50 (UN Doc A/CN4/Ser A/1952/Add 1). Initially Brierly believed that the moral admonition in Art. 9 of the Harvard Draft Convention was sufficient to codify customary law in this respect and his report of 1951 contained an article which was almost identical. However in his report of the following year, ie omitted the provision as being of “too fragmentary and inconclusive a nature to form the basis of a codification.”

68. Lauterpacht felt strongly that “signature had the effect of obliging parties to abstain, prior to ratification, from a course of action inconsistent with the purpose of the treaty”. This was for him a legal, not merely a moral duty and the juridical practice was as complete as could be desired in the circumstances. Signature implied the obligation in good faith “to refrain prior to ratification from any act intended substantially to impair the value of the undertaking as signed”; Law of Treaties [1953] 2 YB ILC 50, UN Doc A/CN4/Ser A/1953/Add 1.

69. Fitzmaurice followed the Lauterpacht approach in his Draft Articles but added that the interim obligation should apply after ratification and pending entry into force; [1956] 2 YBILC 104, UN Doc A/CN4/Ser A/1956.

70. Art. 9(c) of the draft by Sir Humphrey Waldock read that there existed on signatory states a legal “obligation of good faith to refrain from any act calculated to frustrate the objects of the treaty or to impair its eventual performance.”

71. Vienna Convention Art. 18, supra n. 14.

72. In Draft Art. 15, this was originally, “acts tending to frustrate the object of a proposed treaty”. Waldock during the 20th meeting of the Committee of the Whole, Official Records UN Conference on the Law of Treaties, 1st Session, at p. 104 (UN Doc A/Conf/39/11 (1969)), stated that this was based “on a well established notion in English Law. It meant that the treaty was rendered meaningless by such acts and lost its object”. However, this does not square exactly with his previous statements that impossibility of performance went too far.

73. In the Genocide Convention case, op.cit., at p. 27 of the judgment the Court went some way to defining the object and purpose of a treaty when it stated: “The origins and character of that Convention, the objects pursued by the General Assembly and the contracting parties, the relations which exist between the provisions of the Convention inter se, and between those provisions and these objects, furnish elements of interpretation of the will of the General Assembly and the parties.” However Cahier has stated: “Bien qu'apparemment objective l'expression peut se prêter à des interprétations subjectives, tout particulièrement si la Convention poursuit plusieurs objets”, op.cit., at p. 35.

74. In his judgments in the cases of Interhandel and Norwegian Loans, see Holloway, , op.cit. n. 15 at p. 57–58Google Scholar.

75. This was retained in draft Art. 15.

76. Morvay, , op.cit. n. 51 p. 453 n. 5Google Scholar “the expression of the subjective element of intent appeals to have been weakened thereby”. See also Turner, op.cit. n. 36 at p. 761Google Scholar.

77. Draft Report of the Commission on Work of its 18th Session Mr. Ago of Italy [1966] (pt 2) YBILC 321 (UN Doc A/CN 4/L 116).

78. The USA felt that Art. 9(c) of the 1965 Waldock Draft “calculated to” had been superior, 19th Meeting of the Whole p. 98 para 13 Doc A/Conf 39/CI/L 129.

79. Supra n. 78 para 10.

80. Thus the Committee accepted the Australian amendment and not, in fact, that of the United States as stated by Turner in his article.

81. “The first part of the Australian amendment did not improve the text, since it would remove the reference to intention which was an essential element of good faith” 19th Meeting, op.cit. para 36., Hassan, op.cit. n. 51 at p. 458Google Scholar. Note 28 states: “Unlike its earlier drafts, the present form of Art.,18 lays down an objective test for the determination of the obligation …”

82. Cahier, op.cit. n. 29 p. 35Google Scholar; Nisot, J., “L'Article 18 de la Convention de Vienna sur le Droit des Traités” III Beige Revue Beige de Droit International Public (1969) p. 488Google Scholar.

83. First Report on Law of Treaties by Waldock UN Doc A/144 Art 9(2)(c) at p. 57 reprinted in [1962] 2 YBILC 27, 46.

84. Draft Article proposed by Drafting Committee Art. 7(b) Summary Records of 812th Meeting [1965] YBILC 256, 262 UN Doc A/CN 4/Ser A/1965. Malaysia during the Vienna Conference proposed an amendment which would have required a state to express its intention “in the clearest terms”: UN Doc A/Conf 39/CI/l 122 (1968).

85. For example delegate Rosenne and Ruda the latter stating caution was needed “because the intention of a state might not necessarily be either notified or manifested, expressly.”

86. 19th Meeting Committee of the Whole, op.cit., at pp. 97, 100. remarks of delegate de Bresson. The Iranian delegate also stated that the article was unnecessary since a state which had signed a treaty subject to ratification could at any time express its intention not to become a party.

87. 20th Meeting Committee of the Whole p. 103 A/Conf 39/11/Add 2.

88. Documents of the Conference (1st and 2nd Sessions) p. 130.

89. 20th Meeting of the Committee of the Whole p. 104 para 26.

90. Records of 19th and 20th Meetings Committee of the Whole p. 97–106 including the UK.

91. See 61st Meeting of the Committee of the Whole p. 360–361, and 19th and 20th Meeting for criticisms of the inclusion of that part.

92. “Whether Art. 18 as it now stands is declaratory of prior customary international law is uncertain. There is some authority for that conclusion but the matter is not free from doubt”. See Henkin, L. et al. , International Law (1980) p. 604Google Scholar. Those who believe that the Article represents a progressive development include I. Brownlie, supra n. 16; W. Morvay, supra n. 51; J. Nisot, supra n. 54. Those who believe that Article 18 now represents customary international law are Hassan, supra, n. 51; Elias, T., The Modern Law of Treaties (New York 1974), at p. 26Google Scholar; Rogoff, supra n. 15. Restatement of the Foreign Relations Law of the United States (Revised) 314 also supports the notion that Article 18 as it now stands represents a codification of customary international law. See also Glennon, , supra n. 58, at p. 275Google Scholar.

93. The International Law Commission also stated that an obligation of good faith to refrain from acts calculated to frustrate the object and purpose of a treaty pending ratification was generally accepted in international law. Reports of the Commission to the General Assembly of the United Nations 1966 at p. 202 UN Doc A/6309/Rev 1.

94. Vienna Convention Article 4: “Non-Retroactivity of the Present Convention. Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States”.

95. At the time of writing there are 38 state parties. See Nahlik, S.E., “La Conférence de Vienna sur le droit de traités. Une vue d'ensemble” AFDI (1968) pp. 24–53Google ScholarVierdag, E.W., “The Law governing Treaty Relations between Parties to the Vienna Convention on the Law of Treaties and States not Party to the Convention” 76 AJIL (1982) pp. 778–801Google Scholar. Cf., Rosenne, S., “The Temporal Application of the Vienna Convention on the Law of Treaties” 4 Cornell Int. Law Journal (1971) p. 22Google Scholar.

96. However, this does not preclude a rule of a treaty binding a state which is not party to that treaty as a result of that rule becoming declaratory of customary international law. Vienna Convention Art. 38: “Nothing in Art. 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third state as a customary rule of international law”.

97. See Vienna Convention supra n. 14.

98. The background to this article is outlined in Rosenne, , op.cit. n. 95, at p. 5–12Google Scholar.

99. See Vierdag, , op.cit. n. 95 p. 778–86Google Scholar.

100. E.g., Art. 2 of Hague Convention IV on Laws and Customs of War on Land (1907); “The provisions contained in the Regulations referred to in Art. l, as well as in the present Convention, do not apply except between contracting Powers, and then only if all the belligerents are parties to the Convention”, 36 Stat. 2277, No. 538.

101. Referring to multilateral treaties he states “The reading of Art. 4 as a general participation clause would seriously reduce the “effet utile” of the Convention; its significance would be considerably limited”, op.cit., p. 789.

102. Vierdag, , op.cit. n. 95, pp. 789–799Google Scholar reveals as the major stumbling block to any “dual regime” the provisions of Part V of the Vienna Convention relating to the settlement of disputes over treaties and the rules for their invalidity, termination and suspension.

103. See Post, A.M., Deepsea Mining and the Law of the Sea (The Hague 1983) and enclosed bibliography pp. 329–358Google Scholar. For general background issues to the new sea law, Gamble, J.K. and Pontecorvo, G. (eds), Law of the Sea: The Emerging Regime of the Oceans (Rhode Island 1974)Google Scholar.

104. For the rules on seabed mining see United Nations Convention on the Law of the Sea Doc A/CONF. 62/122, 7 October 1982, Part XI and Annexes.

105. United Nations General Assembly Resolution 2749 (XXV) 17 December 1970 “Declaration of Principles Governing the Seabed and Ocean Floor and the Subsoil thereof, beyond the limits of national jurisdiction, 10 ILM (1970) p. 230.

106. Preamble, supra n. 104.

107. Preamble, supra n. 104 and Art. 136; “The Area and its resources are the common heritage of mankind”; also Art. 137(2).

108. Art. 137(1) and (2).

109. Art. 137(2) and Art. 140.

110. Preamble paras 4 and 7, Art. 138.

111. Art. 140(2).

112. Art. 140(2), Art. 160(2)(f)(i).

113. Report of the Coordinators of the Working Group of 7, UN Doc A/Conf/62/Cl/L30 29 March 1982.

114. See n. 5 supra.

115. For a thorough analysis of the provisions of the 2nd Resolution see Brown, E.D., “Deep Sea Mining: the Consequences of Failure to Agree” 7 Natural Resources Forum (1983)CrossRefGoogle Scholar. A summary of the requirements can also be found in Post, op.cit. n. 103.

The basic features are:

(1) To allow for investment by states and other entities in a manner compatible with the international regime before the entry into force of the Convention.

(2) Three categories of “pioneer investors” are named: a. France, Japan, USSR, India; a state enterprise thereof or one natural or juridical person possessing the nationality of or effectively controlled by each state or their nationals, b. Four entities composed of such Belgian, Canadian, German, Italian, Japanese, Dutch, British and American enterprises or persons, c. Such entities of developing states.

There are varying expenditure requirements but common to all is that each state must have signed the Convention.

(3) Each entity shall be allocated one “pioneer area” of maximum area of 150,000 km2 portions of which must be gradually relinquished to the Authority.

(4) Activities called “pioneer activities” may be carried out by entities but these do not include exploitation of resources.

(5) Application must be made for approvals of “plans of work” necessary to exploit resources but these will not be granted until six months after the entry into force of the Convention, nor will a Category II consortium receive permission unless all states whose natural or juridical persons participate in it, are party to the Convention.

(6) The Authority is then bound to grant pioneers a right to produce minerals up to a specified amount but Convention production limitations still apply.

(7) Provisions are also made regarding financial arrangements, the resolution of overlapping claims and the transfer of technology to the Enterprise.

115a. Paragraph 5(b) of Resolution II states “Certifying states shall ensure before the entry into force of the Convention, that pioneer activities are conducted in a manner compatible with it.”

116. Supra n.6 Art. l.para. 2and 3.

117. Preambular paragraph; para. 3 Soviet Edict Supra n. 6. The addition of the Soviet legislation provides a useful comparison however it must be noted that Soviet application for pioneer investor status as well as that of an Indian mining group have been put forward. See Kimball supra n. 6. Thus it can be stated that, for the moment the Soviet Union has thrown in its lot with the Convention.

118. Supra n. 6.

119. Brown, , supra n. 9, at p. 152Google Scholar.

120. French Law Art. 1; Soviet Edict para. 20.

121. Japanese Law Art. 43. Interestingly, this law is not explicit as to whether signed but unratified treaties qualify as treaties, which shall override the Act.

122. French Law Art. 7; Soviet Edict para. 6.

123. Technically recovery under the Japanese Act could begin much earlier with a possibility of commencement of exploitation one year after 20 July 1982 which is the possibility outlined in Art. 23 of the Act.

124. French Law Art. 1(2); Soviet Edict para. 2; Japanese Law Ait. 1(2).

125. Brown, , supra n. 9, p. 150Google Scholar.

126. This is the doctrine of “relativity” of the freedom of the seas. See O'Connell, D.P., The International Law of the Sea Vol. II (New York 1982) p. 796–99Google Scholar. This arises out of the necessity for states to have reasonable regard to the interests of other states in exercising freedom of the High Seas.

127. The existence and application of the legislation itself to the areas involved must imply that Japan has a right to regulate the conduct of its own nationals there. This could only be as a result of freedom of the High Seas.

128. See Brown, , supra n. 9, at p. 153 to 157Google Scholar.

129. French Law Art. 3 and 4.

130. Japanese Law Art. 11, 40 and 29. The benefits of operating in this way shall be discussed below.

131. See n. 5 and Brown, n. 115, op.cit.

132. See UN Convention on the Law of the Sea, supra n. 104 and general literature n. 103.

133. See Resolution II, n. 5 supra.

134. Annex III Art. 6(3)(c) and (4) refer to the ability of the Authority to refuse to grant an approval of a plan of work if the state party involved already holds plans of work relating to a maximum area, Diligence requirements are referred to in Annex III Article 17(2)(c).

135. Resolution II Paragraph l(e).

136. See Brown, , supra n. 9, at p. 164–70Google Scholar, for the provisions of US, UK, German Laws in this respect.

137. Three types of payment are required from a licencee:

1. An application fee;

2. An annual fixed fee;

3. A production charge or a mixed system of production charge and share of net proceeds. Should the licencee choose the production charge system, the levy will be payable at the initial rate of 5% of the market value of the processed metals rising after 10 years to 12%. Should he choose the mixed system then there will be a production charge set at 2% in the early stages of the mining operation and rising to 4% once the operator has recovered his development costs. See also for the functioning of the financial provisions.

138. Art. 171 and 173 also govern the rules for distribution of the Fund to the Enterprise, for the benefit of mankind or to compensate developing states for damage to their mineral intensive economies.

139. See Brown, , supra n. 9, p. 166–70Google Scholar.

140. Chamey, J.I.. “Technology and Negotiations” 76 AJIL (1982) p. 75 especially at note 10 p. 81Google Scholar.

141. Supra n. 6.

142. Supra n. 6.

143. RSA preamble and Art. 1 and 2.

144. Ibid.

145. Part II of the Schedule to the Agreement.

146. Art. 4.

147. Art. 1 limits the Agreement to the facilitating of the identification and resolution of conflicts arising with respect to applications made by “Pre-Enactment Explorers” (PEE) on or before March 12, 1982. A “PEE” is defined in Part IV Article ll(d) of the Agreement as an “entity which was engaged, prior to the earliest date of enactment of domestic legislation by any Party, in deep seabed poly-metallic nodule exploration by substantial surveying activity with respect to the area applied for.” Whilst covering the consortia involving nationals of each of the parties this is much narrower than the three categories of “Pioneer Investor” outlined in Resolution II.

148. Art. 13.

149. See Law of the Sea: US Policy Dilemma ed. Oxman, B., Caron, D. and Buderi, C. eds., (San Francisco 1983), Ch 7Google Scholar; Cohen, L.I.International Co-operation on Seabed Mining p. 101–113Google Scholar. For the categories of consortia involved see Post, supra n. 103, at p. 215–219. Those consortia involved in the voluntary conflict resolution agreements are Association Française pour l'Etude et la Recherche des Nodules (AFERNOD), Deep Ocean Resources Development Co. Ltd (DORD), Kennecott Consortium (KCON), Ocean Mining Associates (OMA), Ocean Minerals Company (OMCO) and Ocean Management Incorporated (OMI).

150. Art. 1(1) Provisional Understanding.

151. Art. 2 ibid.

152. Ait. 4 ibid.

153. Ait. 5 and 6.

154. Art. 6(2).

155. The criteria by which “good cause” is to be shown are not elucidated in the agreement itself making denunciation of this part perhaps more difficult and likely to lead to dispute.

156. Memorandum Art. 3(l)(e).

157. Ibid Art. 3(l)(d).

158. Ibid Art. 3(l)(c).

159. Ibid Art. 3(l)(a).

160. 20th Meeting Committee of the Whole p. 105 at 35–38. He went on to say, 'Of course, he would wish the principles stated in article 15 to be respected, just as he would wish… that perfection could be achieved on earth. Many of those urging the retention of Article 15 might perhaps regret the consequences later.

161. Franck, Thomas M., “Dulce et Decorum Est: The Strategic Role of Legal Principles in the Falklands War”, 77 AJIL (1983) p. 124Google Scholar.