Summary Record of the 492Nd Meeting

Document:- A/CN.4/SR.492 Summary record of the 492nd meeting Topic: Law of Treaties Extract from the Yearbook of the International Law Commission:- 1959 , vol. I Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm) Copyright © United Nations 54 Yearbook of the International Law Commission code at all, since they concerned interpretation rather able to deal with the various questions in their proper than validity. The Drafting Committee might be asked context in the code rather than in a preliminary article. to look into that question. Paragraph 1 might better be placed at the end of the article, an arrangement The meeting rose at 6 p.m. which might perhaps meet the point raised by Mr. Verdross. 24. Mr. EL-KHOURI, referring to paragraph 3, 492nd MEETING thought that it would be desirable to mention in the treaty itself the authority by virtue of which a State Tuesday, 12 May 1959, at 9.45 a.m. claimed to be competent to conclude a treaty on behalf of a Chairman: Sir Gerald FITZMAURICE protected or semi-sovereign State or territory, such as a mandated territory; in the latter case, the international organization from which the mandate was held Law of treaties (A/CN.4/101) (continued) should be named. In the case of a protected State, it should be specified whether the representation was [Agenda item 3] arbitrary or by agreement between the protecting and the protected State. In order that a treaty made by the ARTICLE 16 (continued) protecting State on behalf of the protected State should 1. The CHAIRMAN invited the Commission to con- be binding on the latter, it was necessary that evidence tinue its debate on article 16 (Certain essentials of the of the authority by virtue of which the protecting State text). claimed to be acting should be given. 2. Mr. PAL said he could not agree with the remark 25. Mr. SCELLE thought that, if paragraph 1 was made by Mr. Verdross (491st meeting, para. 22) that retained, it might be better to say that the presence the negative approach in article 16, paragraph 1, was of a preamble or conclusion might or might not have relatively unnecessary. From the trend of the observations juridical importance, but that that depended on the made by some members it appeared that there was some interpretation, which should be dealt with elsewhere misapprehension as to the purport of the paragraph. The in the code. A conclusion, if it summarized the purpose paragraph was not intended to assess the value of a of the agreement, might have a great and precise juridi- preamble and did not in the least minimize its value cal validity, whereas often a preamble might not. should one be provided. It only stated that a preamble 26. Mr. ALFARO said that article 16 would have to was not a "juridical requirement" in the sense that its be discussed in great detail. On the whole, the article absence would not be a fatal formal shortcoming. The was well-conceived and a good introduction to the re- confusion might have arisen from the difference between mainder of the code. He had, however, some doubts the French phrase "une condition requise du point de about the reference to preambles in paragraph 1. They vue juridique" and the English "juridical requirement". were not usually a juridical requirement, but there was He had some doubts, however, about the article as a an important precedent in the United Nations Charter, whole; in particular, he was not sure that the term which should not be disregarded. When the original "essential" was used consistently in the same sense chapters 1 and 2 of the Dumbarton Oaks Proposals had throughout the article. In some cases the word appeared been discussed, some delegations had suggested that the to mean a requirement affecting validity, but in others principle pact sunt servanda should be incorporated in it apparently did not have that sense. The requirement the body of the Charter itself, but the five permanent of paragraph 2, for example, would affect the very founda- members of the Security Council had opposed the idea, tion of the treaty, while the requirement of a ratification and it had been finally agreed that the principle should clause envisaged in paragraph 6 would not mean that be incorporated in the Preamble. At the United Nations its absence would affect the validity of a treaty. The term Conference on International Organization, held at San "essential" might have to be modified and some pro- Francisco in 1945, the committee responsible for draft- vision might have to be added concerning performance ing Chapter I of the Charter had approved a text, later and non-performance dealt with in the Special Rappor- adopted in plenary session,2 to the effect that the teur's fourth report (A/CN.4/120). Preamble would have the same juridical validity as the 3. Mr. KHOMAN said that, although the content Articles themselves. of article 16 was fairly comprehensive, if the title "Certain 27. Mr. AGO said that he would have several com- essentials of the text" were construed strictly, it would ments to make when the article was discussed in detail. be seen that only paragraphs 2 and 3 referred to essential In principle, it might perhaps be better to begin the matters, whereas the remainder related to discretionary article with a reference to the requirements which were clauses (clauses facultatives). He found some difficulty really conditions of validity of a treaty, and to refer about paragraph 1, because, while that provision stated later to those elements which were frequently inserted that a preamble was not a juridical requirement, the in a treaty but were not conditions for its validity. reference in paragraph 2 to "a preambular recital" implied 28. Mr. AMADO said that the contents of article 16 that it might become so, inasmuch as it might indicate were not fully in keeping with its title, "Certain es- the States on whose behalf a treaty was initially drawn up. The title might be reworded to conform with the sentials of the text"; matters which were admittedly essentials set out in paragraphs 2 and 3; he suggested not essential appeared in some of the paragraphs, par- "Essential and non-essential clauses of the text". Alter- ticularly paragraph 5. The article in general seemed natively, paragraphs 4, 5 and 6 might be placed in a somewhat premature. The provisions concerning entry separate article under the heading of "Discretionary into force were elaborated in article 41 and so might be clauses", and paragraphs 1, 2 and 3 might bear the title unnecessary in article 16. It would probably be prefer- "Compulsory clauses". He had no objection to paragraph 2 1; indeed, it might be just as well to begin with the United Nations Conference on International Organization, Ninth Plenary Session, 25 June 1945, vol. 1, p. 614. negative form. 492nd meeting—12 May 1959 55 4. Mr. HSU thought that most of the criticism was national labour conventions, were not signed at all; they directed against the form rather than against the substance were accepted by the International Labour Conference and of the article, partly because it was more in the nature the instruments of ratification were deposited with the of an extract from a textbook or advisory opinion than International Labour Office. The texts of those conven- an article in a code. It would seem that the traditional way tions, therefore, did not bear any signatures from which the of setting out the clauses in a code was to state what was identity of the States parties could be inferred. It was necessary rather than what was unnecessary. The substance open to question, therefore, whether an indication of the of the article might be readily accepted and the difficulties parties was really essential in the text of a treaty. overcome by redrafting. 9. Paragraph 3 hardly came within the scope of article 5. Mr. YOKOTA agreed with the basic idea under- 16 and was not entirely acceptable in principle, as it lying article 16. Paragraphs 1 and 2 stated the essentials might conceivably be interpreted as a legalization of and paragraphs 4 and 6 what was desirable. Those four colonial dependency, which, in his opinion, was incom- paragraphs might therefore be retained in that order, patible with the spirit of the United Nations Charter. although the separation into two articles suggested by 10. He agreed with Mr. Sandstrom, who had said Mr. Khoman might be preferable. Paragraph 5, however, (491st meeting, para. 23) that paragraphs 5 and 6 were stated neither what was essential nor what was desirable. not relevant where they stood; their proper context was The passage concerning entry into force on signature the articles dealing with entry into force, ratification, was not concerned with the essential or the desirable, accession and so forth. It was doubtful, moreover, whether but with the legal effect of signature, which was more the provisions of paragraph 6 were a correct statement clearly stated in article 29, paragraph 2. The passage of prevailing practice. It was certainly not the practice concerning continuance in force was likewise misplaced, to specify the ratifying authority in a treaty; it was for it bore in fact on the temporal validity of treaties. usually stipulated that ratification should be carried out The substance of paragraph 5 should therefore be redis- in accordance with constitutional processes. Paragraph 6 tributed in more suitable contexts elsewhere in the code. was therefore unnecessary and probably unacceptable; Paragraph 1 had some significance as an introductory some of its provisions, if suitably amended, might well clause and was certainly harmless, but as it resembled a be.placed in the commentary.

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