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Theory and practice of treaty registration with particular reference to agreements of the International Bank — Part II

Published online by Cambridge University Press:  21 May 2009

A. Broches  and
Shirley Boskey
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Extract

An examination of the practice of United Nations organs, including the International Court of Justice, discloses no rules requiring a party who invokes an international agreement before any of those organs to show compliance with Article 102. Nor have we found any instance in which an organ has imposed the penalty of Article 102(2) or in which a party has urged it to do so. This is not to say that no United Nations organ has ever been confronted with an agreement that required registration but which had not been registered. A number of the contentious cases before the International Court presented just such a situation. As will appear from the discussion of cases which follows, the instances in which it can be said that the Court gave effect to such unregistered agreements all involved so-called Special Agreements by which, under Article 36 of the Court's Statute, parties may bring their cases before the Court. This raises the questions whether the Court considers such agreements to be outside the scope of Article 102, and if so, why.

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Articles
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Netherlands International Law Review , Volume 4 , Issue 3 , September 1957 , pp. 277 - 300
Copyright
Copyright © T.M.C. Asser Press 1957

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References

page 277 note 1 I.C.J. Reports 1947–1948, p. 15.Google Scholar

page 277 note 2 Ibid., p. 53.

page 278 note 1 Corfu Channel case, Pleadings, Oral Arguments, Documents, Vol. 4, p. 663.Google Scholar

page 278 note 2 I.C.J. Reports 1949, pp. 24–25, and see p. 25: “[Albania] declared that, owing to its claim for the dismissal of the case, it was unnecessary for it to examine the United Kingdom's claim for reparation, (translation) ‘It reserves the right if need be, to discuss this point which should obviously form the subject of an expert opinion.’ Having regard to what is said above as to the previous attitude of that Government, this statement must be considered as an implied acceptence of the Court's jurisdiction to decide the question.”

page 278 note 3 “The Court is always competent once the [parties] have accepted its jurisdiction…” (P.C.I.J. Reports, Series A, No. 15, p. 22)Google Scholar and see footnote 5, p. 290 of this Part infra. And see also In the Matter of the Interpretation of Paragraph 4 of the Annex following Article 179 of the Treaty of Neuilly (P.C.I.J. Reports, Series A, No. 4, pp. 5 and 6)Google Scholar in which Bulgaria commented on a request by Greece for an interpretation by the Court, but did not dispute the Court's jurisdiction to make the interpretation. This was construed by the Court as an “agreement” which gave it jurisdiction. A party's explicit or implicit acceptance of the Court's jurisdiction will estop it from subsequently raising an objection to the jurisdiction.

page 278 note 4 I.C.J. Reports 1950, p. 266et seq.Google Scholar

page 279 note 1 Asylum case, Pleadings, Oral Arguments, Documents, Vol. I, pp. 11, 164Google Scholar; Vol. II, pp. 147, 157.

page 279 note 2 Peru, in transmitting a copy of the Lima Act to the Court, described it as the “document by which the two Governments give form to the Special Agreement which refers their dispute to the Court for decision.” (translation). Asylum case, Pleadings, etc., Vol. II, p. 203.Google Scholar A similar point of view is expressed in the Peruvian Counter-Memorial (ibid., Vol. I, p. 109) and Rejoinder (ibid., Vol. I, p. 397).

page 279 note 3 This Protocol is presumably the “agreement concluded by the two Governments” to which the Lima Act refers. Article 7 of the Protocol provided that should the parties fail to resolve their mutual problems by diplomatic negotiation, either might have recourse to the Permanent Court.

page 279 note 4 Asylum case, Pleadings, etc., Vol. I, p. 10Google Scholar (Application), p. 16 (Memorial), pp. 317–318 (Reply); Vol. II, p. 24 (Oral Argument).

page 279 note 5 Counsel for Colombia had argued that while the 1934 Protocol afforded a wholly adequate basis for a new and independent proceeding by Peru, requesting the Court to consider the legality of Colombia's continued extension of asylum to Haya de la Torre, this question could not be put to the Court in the form of a counterclaim in the pending proceeding because it was not covered by the Lima Act, which counsel then somewhat inconsistently referred to as “one of the instruments which conferred jurisdiction on the Court” (translation). (Asylum case, Pleadings, etc., Vol. II, p. 156).Google Scholar Counsel for Peru, in reply, said that the Court's jurisdiction was determined not solely or even principally by the Lima Act but by the Application, because the parties, as they recited in the Lima Act itself, had not been able to work out a Special Agreement defining the scope of the dispute (Asylum case, Pleadings, etc., Vol. II, p. 182).Google Scholar

page 279 note 6 I.C.J. Reports 1950, p. 273.Google Scholar The Court decided against Colombia on both questions submitted, and on Peru's original counterclaim, found that it was admissible, and held for Peru on the counterclaim.

page 280 note 1 The Minquiers and Ecrehos case, Pleadings, Oral Arguments, Documents, Vol. II, p. 464.Google Scholar

page 280 note 2 118 U.N.T.S., p. 149.

page 280 note 3 The Minquiers and Ecrehos case, Pleadings, etc., Vol. I, pp. 49–50.Google Scholar

page 280 note 4 Ibid., Vol. I, pp. 371–376, 403, 421–422.

page 281 note 1 Agreement on reparations from Germany, on the establishment of an Inter-Allied Reparations Agency and on the restitution of monetary gold, January 14, 1946, United Kingdom Treaty Series No. 56 (1947), Cmd. 7173.

page 281 note 2 The United Kingdom claim was based on the fact that Albania had not yet satisfied the Corfu Channel judgment in favor of the United Kingdom. The Italian claim was based both upon Albania's confiscation of the assets of the National Bank of Albania, in which the Italian government held a majority interest, and upon provisions of the Italian peace treaty.

page 282 note 1 I.C.J. Reports 1954, p. 19.Google Scholar

page 282 note 2 Case of the Monetary Gold Removed from Rome in 1943 (hereinafter called the Gold case), Pleadings, Oral Arguments, Documents, 1954, p. 156.Google Scholar

page 282 note 3 Ibid.

page 282 note 4 The United Kingdom Agent stated that the Tripartite Statement “if correctly viewed, is simply a provisional special agreement … which becomes a perfected, a complete agreement, if and when the other countries named take up the offer …” (The Gold case, Pleadings, etc., p. 134).Google Scholar The Court described the basis for its jurisdiction in somewhat different terms: “The Governments of France, the United Kingdom and the United States of America, and the Government of Italy, by their separate and successive acts—the adoption of the Washington Statement, in the one case, and in the other case, the deposit on May 19th, 1953, of the Declaration of acceptance of the jurisdiction of the Court and the filing of the Application—have referred a case to the Court within the meaning of Article 36(1) of its Statute.” (I.C.J. Reports 1954, p. 31).Google Scholar

page 282 note 5 See footnote 3, p. 161 of Part I supra.

page 282 note 6 See p. 160 of Part I supra. If this could not be done, a state making a unilateral agreement could, by deliberately failing to register it, prevent its being invoked by the state for whose benefit it was made and which had relied on it.

page 283 note 1 The Gold case, Pleadings, etc., pp. 165–166.Google Scholar

page 283 note 2 See footnote 2, p. 289 of this Part, infra.

page 284 note 1 See supra pp. 177–179Google Scholar of Part I. It is there noted that we think it at least possible that the President of the Court, when called upon to make an appointment of this character, would wish to be satisfied that the agreeme nt under which his action is sought, if it is one required to be registered, has in fact been registered.

page 284 note 2 See supra pp. 185–186 of Part I.Google Scholar

page 285 note 1 91 U.N.T.S. p. 21.

page 285 note 2 The Gold case, Pleadings, etc., pp. 207, 208.Google Scholar

page 285 note 3 Ibid., p. 210.

page 285 note 1 The Tripartite Statement was published in 100 U.N.T.S. pp. 304–307, with a note that when the text of the Washington Agreement was published “the above mentioned Statement annexed to the Agreement was inadvertently omitted and is therefore reproduced herewith”.

The statements in the Legal Department's letter would seem to permit an inference that the Secretariat had initially considered the Tripartite Statement to be not registrable by itself. However, the Secretariat has assured the authors that there is no basis in fact for such an inference, that the failure to publish the Statement was merely due to an administrative oversight and that the Statement was never considered non-registrable.

page 286 note 1 It is curious that while the Paris Act itself was not registered, the United Kingdom registered the Protocol by which Italy adhered to the Act. The Protocol, signed in December 1947, was registered on March 20, 1951 (82 U.N.T.S. p. 237), a few weeks prior to the date of the Washington Agreements.

page 286 note 2 Under Article 36 of the Statute of the International Court, declarations made under the Statute of the Permanent Court of International Justice, and still in force, are deemed to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period they still have to run and in accordance with their terms.

page 286 note 3 I.C.J. Reports 1952, p. 93.Google Scholar

page 287 note 1 Anglo-Iranian Oil Company case, Pleadings, Oral Arguments, Documents, pp. 342, 481, 482, 483 (translation). The answer to counsel's question is perhaps that the Secretariat would suggest that the agreement be reduced to writing by at least one of the parties.

page 287 note 2 Ibid., p. 537. A dispute having arisen with regard to an earlier concession by Iran, the United Kingdom in 1932 submitted the question to the Council of the League; the question was placed on the Council's agenda and a Rapporteur was appointed. Through the latter's efforts, the dispute was settled, ending in the concession agreement of 1933. The Rapporteur incorporated in his report to the Council the text of the new agreement.

page 287 note 3 A statement with which one may well take issue since it was precisely the purpose of both Article 18 and Article 102 to ensure publicity.

page 288 note 1 The Anglo-Iranian case, Pleadings, etc. pp. 539–540.Google Scholar Counsel for Iran also called attention to the non-registration of an exchange of notes between Iran and the United Kingdom in 1928, in support of the argument that the exchange did not constitute an “engagement” on the part of Iran, being only the expression of an intention; he noted the absence of registration in this instance, despite the fact that the British had registered “hundreds of documents”. (Ibid., p. 484). The United Kingdom did not reply to this point.

page 288 note 2 The pleadings in this case have not yet been published, but the authors were given the opportunity to examine the Application.

page 288 note 3 Citing Journal Officiel de la République française, 03 14–15, 1949, p. 2651.Google Scholar

page 288 note 4 I.C.J. Reports 1954, p. 107.

page 289 note 1 Hudson, (1934) (28 A.J.I.L. 552)Google Scholar comments that the P.C.IJ.in the Mavrom-matis Palestine Concession case (Series A, No. 2) admitted as relevant an unregistered Protocol on Concessions. But while the parties before the Court—the United Kingdom and Greece—were members of the League, the parties to the Protocol included Turkey, at the time not a member, a circumstance which sometimes has been considered relevant to the applicability of Article 18 of the Covenant (supra, footnote 1, on p. 162 of Part I).

page 289 note 2 The P.C.I.J. also took jurisdiction in similar situations. See Hudson, The Permanent Court of International Justice, 1920–1942 (New York 1943), p. 435: “in practice special agreements have seldom been registered under Article 18 of the Covenant”. Hudson mentions only three Special Agreements that had been registered (in the Brazilian Loans case, 75 L.N.T.S. 91, the Oder Commission case, 87 L.N.T.S. 103, and the Chinn case, 154 L.N.T.S. 361).Google Scholar

page 290 note 1 See also The Harvard Draft Convention on the Law of Treaties, (1935Google Scholar, Supplement) 29 A.J.I.L. 915, commenting that the P.C.I. J. “has given no attention to the question [of the legal effect of an unregistered treaty] and its unfortunate practice of failing to cite the League of Nations Treaty Series may have the effect of minimizing the importance of compliance with the obligations of Article 18, in that neither the parties' nor the Court's attention will be drawn to the point”.

page 290 note 2 Lauterpacht has expressed the view that where an agreement has actually been published, although not registered, by the parties, “the main reason of the requirement of publication has, in fact, been complied with” and that this circumstance explains “in part” the attitude of the P.C.I.J. in the Mavrommatis Palestine Concession case (Report on the Law of Treaties, International Law Commission, U.N. Doc. A/CN. 4/63, pp. 217–218).Google Scholar

page 290 note 3 At p. 180 of Part I, supra, we noted our difficulty with a suggested explanation of the Court's action in the Corfu Channel case: that joint submission of a Special Agreement does not constitute an invoking, and thus no question arises as to application of the penalty. Moreover, this would not explain the other cases involving Special Agreements, where there was no joint submission.

page 290 note 4 This was also true under Article 36 of the Statute of the P.C.I.J.

page 290 note 5 The P.C.I.J. said in the Rights of Minorities in Upper Silesia (Minorities Schools) case (P.C.I.J. Reports, Series A, No. 15):

“The Court is always competent once the [parties] have accepted its jurisdiction, since there is no dispute which States entitled to appear before the Court cannot refer to it.” (p. 22) and

“The acceptance by a State of the Court's jurisdiction in a particular case is not, under the Statute, subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement.” (p. 23).

The latter statement was quoted with approval by the International Court of Justice in its decision on Albania's Preliminary Objection in the Corfu Channel case (I.C.J. Reports 1948, p. 15 et seq., at p. 28). As noted above, Albania's position was that since it had not accepted the Court's compulsory jurisdiction, the United Kingdom should have instituted suit on the basis of a Special Agreement rather than by Application. The Court, without considering whether it had compulsory jurisdiction, rejected the objection on the ground that a letter which Albania addressed to it, after being notified of the Application, constituted a voluntary acceptance of jurisdiction. The Court said in this connection:

“While the consent of the parties confers jurisdiction on the Court, neither the Statute nor the Rules require that this consent shduld be expressed in any particular form … the institution of proceedings by application is not exclusively reserved for the domain of compulsory jurisdiction. In submitting the case by means of an Application, the Government of the United Kingdom gave the Albanian Government the opportunity of accepting the jurisdiction of the Court. This acceptance was given in the Albanian Government”s letter of July 2, 1947.”

(Ibid., pp. 27–28). And see also footnote 3, p. 278 of this Part, supra, and the Court's statement in the Gold case, footnote 4, p. 282 of this Part, supra.

page 291 note 1 Cf. in this connection the Corfu Channel case, where the Court interpreted the Special Agreement to determine the merit of Albania's assertion that the Court lacked jurisdiction to assess the amount of compensation to be paid to the United Kingdom (p. 278 of this Part, supra.

page 291 note 2 Report on the Law of Treaties, International Law Commission, U.N. Doc. A/CN. 4/63, p. 218.Google Scholar

page 292 note 1 But the P.C.I.J. may have so concluded; as noted in footnote 2, p. 289 of this Part, it assumed jurisdiction under unregistered Special Agreements on several occasions. Hudson, a former member of that court, writes: “It has not been thought that special agreements submitting cases to the Court require registration, though some of the agreements have been registered.” The Permanent Court of International Justice, 1920–1942 (New York 1943), p. 636.Google Scholar

See pp. 191–192 in Part I for a number of examples of classes of agreements which the Bank does not register, believing that in no case will their registration further the purpose of Article 102.

page 293 note 1 The Repertory of United Nations Practice (New York 1955), Vol. V, p. 280Google Scholar, notes that “no practice has developed is respect of its [Article 102(2)] application.”

page 293 note 2 GA (II), 6th Com., p. 121, Doc. A/380.

page 294 note 1 Although 14 organs and specialized agencies (including the Bank) are authorized to request advisory opinions, the General Assembly has thus far submitted nine of the ten requests made as of July 1956; one was submitted by UNESCO.

page 294 note 2 In the Admission of a State to the United Nations case (I.C.J. Reports 1948, p. 61)Google Scholar, the Court said:

“Lastly, it has also been maintained that the Court cannot reply to the question put because it involves an interpretation of the Charter. Nowhere is any provision to be found forbidding the Court, ‘the principal judicial organ of the United Nations’, to exercise in regard to Article 4 of the Charter, a multilateral treaty, an interpretative function which falls within the normal exercise of its judicial powers.”

The Court reaffirmed its competence to interpret the Charter in the Competence of Assembly regarding Admission to the United Nations case (I.C.J. Reports 1950, p. 6).Google Scholar

The Charter is silent on the subject of its interpretation. The Court's power to interpret the Charter is not exclusive. Kelsen has gone so far as to comment that “the organs and Members of the United Nations competent to apply the Charter are free to interpret the provisions to be applied by them according to their own discretion. Any meaning a provision of the Charter might possibly have can become the law in a particular case”. Kelsen, , op. cit., p. xvi.Google Scholar

And see Bentwich, and Martin, , A Commentary on the Charter of the United Nations, 2nd Impression (London 1951), p. 170:Google Scholar

“Recommendations and decisions passed on the basis of advisory opinions have the full authority of the Court behind them; and during the League régime recommendations and decisions of this kind were never challenged on legal grounds. Owing to the unfortunate refusal of the San Francisco Conference to make the Court the final arbiter of controversial interpretations of the Charter it is by no means certain that the United Nations will have the same experience.”

page 294 note 3 Resolution 171 A(II), 1947.

page 295 note 1 GA (II), Plen., Vol. II, p. 1560, annex 18 (A/459).Google Scholar

page 295 note 2 GA (1/2), Pien., p. 1586, annex 91 (A/266).

page 295 note 3 See Proceedings of the American Society of International Law, 1951, Report of the Committee to Study Legal Problems of the United Nations, The Handling of Treaties by the Secretariat of the United Nations, pp. 139–151.Google Scholar

page 295 note 4 Repertory of United Nations Practice (New York 1955), Vol. V, p. 295.Google Scholar In view of the uncertain state of the law as regards international personality, there may well be instances in which it is not clear whether an agreement is an “international” agreement. In such cases the Secretariat “follows the principle that it acts in accordance with the position of the Member State submitting an instrument for registration that so far as that party is concerned the instrument is a treaty or an international agreement within the meaning of Article 102.” (Note by the Secretariat appearing since November 1955 in the monthly statements of treaties and international agreements registered or filed and recorded with the Secretariat). Registration of an instrument submitted by a Member State “does not imply a judgment by the Secretariat on the nature of the instrument 55555” and “It is the understanding of the Secretariat that its action does not confer on the instrument the status of a treaty or an international agreement if it does not already have that status 55555.” (Ibid.)

The first Secretary-General of the League disclaimed, in connection with the Treaty between the United Kingdom and Ireland, any capacity to decide what was a “treaty” within the meaning of Article 18; accordingly, he accepted for registration and published both the Treaty (registered by Ireland) (26 L.N.T.S. 10) and the United Kingdom's protest of the registration (27 L.N.T.S. 449). (As noted by Parry, Some Recent Developments in the Making of Multi-partite Treaties, The Grotius Society, Problems of Public and Private International Law, Vol. 36, p. 163 (1950).Google Scholar Cf. the registration by the Netherlands, under the Charter provision, of its agreement with Indonesia, prior to Indonesia's independence (referred to in footnote 2, p. 166 of Part I, supra).

The Secretariat on its own initiative has taken steps for the ex officio registration of declarations by new members accepting the obligation of the Charter, and of declarations accepting the optional clause recognizing the compulsory jurisdiction of the International Court, an action which was considered justified by the Sixth Committee. GA (II), 6th Com., p. 343, annex 12 (A/380).

page 296 note 1 Repertory of United Nations Practice (New York 1955), Vol. V, pp. 294–295.Google Scholar

page 296 note 2 This is the view expressed by Brandon, (1953) 47 A.J.I.L. 62.11 was questioned whether the League Secretariat should be authorized to refuse registration to a treaty which was not in conformity with other Articles of the Covenant or which appeared to violate basic principles of the League, e.g., a treaty imposed by force. The French delegate suggested that a state presenting such a treaty should be invited to consider a suitable modification. But a representative of the Secretariat declared that registration was a purely formal act and could not be refused and that an adequate examination of the texts of all treaties presented was not practicable. It was agreed that registration did not connote either confirmation or approbation of the treaty on the part of other League members. See Hudson, , The Registration of Treaties, (1925) 19 A.J.I.L. 278–279Google Scholar; Frangulis, A. F., Theorie et Pratique des Traites Internationaux, Académie Diplomatique Internationale (1934), pp. 85–86.Google Scholar

And when a United Nations member objected to the registration by another member of an agreement between the latter and Franco Spain, on the ground that such registration violated the spirit and letter of certain General Assembly resolutions, particularly one prescribing that arrangements for publication of agreements transmitted voluntarily by non-member states should not extend to agreements transmitted by a non-member such as Spain, the Secretary-General declined to delete the registration from the register, pointing out that registration was effected by act of a party to an agreement, not by the Secretariat, and that the resolution in question did not modify the scope of the obligation imposed upon United Nations members by Article 102. (Repertory of United Nations Practice (New York 1955), Vol. V, p. 298).Google Scholar

page 297 note 1 Schachter, , The Development of International Law through the Legal Opinions of the United Nations Secretariat, (1948) 25 B.Y.I.L. 91, 131–132.Google Scholar

page 297 note 2 Provided, of course, that a United Nations member is a party, that the agreement was made after the Charter came into force, and that the agreement itself had entered into force. The latter condition may raise difficult questions for the Secretariat, as where some of the parties to a multilateral agreement have accepted it with reservations.

page 298 note 1 E.g., the suggestion that the Regulations be amended to permit ex officio registration of multilateral agreements of which the United Nations was the depository, made in a report of the Secretary-General to the fourth session of the General Assembly (A/958) and discussed at length by the Sixth Committee (GA (IV), 6th Com., p. 209 et seq.); and the proposal to amend Article 7 of the Regulations to entitle only the registering party or entity to a certificate of registration, made by the Secretary-General in a Report to the fifth session of the General Assembly (GA(V), Annexes, Vol. II, a.i. 54, A/1408, p. 3).Google Scholar