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Document:- A/CN.4/63 Report on the Law of Treaties by Mr. H. Lauterpacht, Special Rapporteur Topic: Law of Treaties Extract from the Yearbook of the International Law Commission:- 1953 , vol. II Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm) Copyright © United Nations LAW OF TREATIES DOCUMENT A/CN.4/63 Report by Mr. H. Lauterpacht, Special Rapporteur [Original: Englishf [24 March 1953$ TABLE OF CONTENTS Page PREFACE 90 TEXT OP ARTICLES 90 TEXT OF ARTICLES WITH COMMENTS AND NOTES Part I. Definition and nature of treaties 93 Part II. Conclusion of treaties 106 Part III. Conditions of validity of treaties Section I. Capacity of the parties and of their agents 137 Section II. Reality of consent 147 Section III. Legality of the object of the treaty 154 Section IV. Form and publicity 159 PREFACE distinction between the two main tasks which, ia relation to this and other topics, confront the Commis- 1. This section of the Report on the Law of Treaties sion — namely, those of codification and development is composed of the following three parts: Part I (Defi- of international law. nition and nature of treaties); Part II (Conclusion of treaties); and Part III (Conditions of validity of trea- ties). It is intended that the subsequent sections 1 of TEXTS OF ARTICLES the Report should cover the following other topics of Article 1 the Law of Treaties: Part IV (Operation and enforce- ment of treaties); Part V (Interpretation of treaties); ESSENTIAL REQUIREMENTS OF A TREATY Part VI (Termination of treaties); Part VII (Rules and Treaties are agreements between States, including principles applicable to particular types of treaties). organizations of States, intended to create legal rights and obligations of the parties. 2. The draft articles formulated by the Special Rapporteur are accompanied throughout by comments Article 2 and notes. While the former is intended to constitute part of the work of the Commission to be submitted FORM AND DESIGNATION OF A TREATY to the General Assembly, the notes are merely in Agreements, as defined in article 1, constitute treaties the nature of explanations for the convenience of the regardless of their form and designation. Commission. However, the border-line between the comment and the notes is not contemplated as being Alternative version of article 2 rigid and it is probable that eventually substantial Agreements, as defined in article 1, constitute treat- sections of the notes may be included in the comment. ies regardless of their form and designation and regard- less of whether they are expressed in one or more 3. The present Report is intended primarily as a instruments. A treaty obligation may be created by a formulation of existing law. It is largely for this reason unilateral instrument accepting an offer or followed that the Special Rapporteur has thought it necessary by acceptance. in a number of cases — as, for instance, in the case of article 9 relating to reservations — to append alterna- Article 3 tive formulations de lege ferenda. In some cases it has THE LAW GOVERNING TREATIES been thought necessary to include, for the considera- tion of the Commission, alternative formulations of In the absence of any contrary provisions laid down lex lata. However, in general the Special Rapporteur by the parties and not inconsistent with overriding has attached importance to the preservation of the principles of international law, the conditions of the validity of treaties, their execution, interpretation and 1 Sir Hersch Lauterpacht having been elected to the termination are governed by international custom and, International Court of Justice in 1954 was unable to in appropriate cases, by general principles of law publish these sections of his Report. recognized by civilized nations. 90 Law of treaties 91 Article 4 Article 8 ASSUMPTION OF TREATY OBLIGATIONS ACCEPTANCE A treaty becomes binding by signature which is not [Wherever provision is made for the assumption of subject to confirmation, ratification, accession, accep- the obligations of the treaty by acceptance a State tance, or any other means of expressing the will of the may become a party to the treaty by a procedure which parties, through a competent organ, in accordance consists either: (a) in signature, ratification, or acces- with the provisions and practice of their constitution. sion; or (b) in an instrument formally described as acceptance; or (c) in a combination of the two preceding Article 5 methods.] SIGNATURE Article 9 1. The signature of a treaty constitutes an assump- RESERVATIONS tion of a binding obligation in all cases in which the parties expressly so agree or where, in accordance with I article 6, no confirmation of the signature is necessary. A signature, ratification, accession, or any other 2. In all other cases the signature, or any other method of accepting a multilateral treaty is void if means of assuming an obligation subject to subsequent accompanied by a reservation or reservations not confirmation, has no binding effect except that it agreed to by all other parties to the treaty. implies the obligation, to be fulfilled in good faith: (a) To submit the instrument to the proper constitu- II tional authorities for examination with the view to Alternative proposals de lege ferenda ratification or rejection; (b) To refrain, prior to ratification, from any act Alternative draft A of article 9 intended substantially to impair the value of the under- If, in any case where a multilateral treaty does not taking as signed. expressly prohibit or restrict the faculty of making reservations, a State signs, ratifies, accedes to or Article 6 otherwise accepts the treaty subject to a reservation RATIFICATION or reservations limiting or otherwise varying the obli- 1. Ratification is an act by which a competent organ gations of any article or articles of the treaty, the of a State formally approves as binding the treaty or following procedure shall apply in the absence of any the signature thereof. other provisions in the treaty: 1. Whenever a treaty provides that it shall enter 2. In the absence of ratification a treaty is not into force on a specified number of States finally becom- binding upon a Contracting Party unless: ing parties thereto, the fact that a State has appended (a) The treaty in effect provides otherwise by laying a reservation or reservations to any article of the treaty down, without reference to ratification, that it shall is not taken into account for the purpose of ascertaining enter into force upon signature or upon any other date the existence of the requisite number of parties to the or upon a specified event other than ratification; treaty. (b) The treaty, while providing that it shall be 2. If within three years of the treaty having entered ratified, provides also that it shall come into force into force less than two-thirds of the States accepting prior to ratification; the treaty, whether they have accepted it with or (c) The treaty is in the form of an exchange of notes without reservations, agree to the reservation or or an agreement between government departments; reservations appended by a State, that State, if it maintains the reservation, ceases to be a party thereto. (d) The attendant circumstances or the practice of If at the end of that period and as the result of the the Contracting Parties concerned indicate the inten- operation of the rule as stated, the number of parties tion to assume a binding obligation without the neces- is reduced to below the requisite number stipulated sity of ratification. for the entrance of the treaty into force, the treaty is Alternative paragraph 2 dissolved. 2. Confirmation of the treaty by way of ratification 3. If, at the end of or subsequent to the period is required only when the treaty so provides. referred to above, a reservation is agreed to expressly or tacitly by two-thirds or more of the total number of Article 7 the States accepting the obligations of the treaty, then ACCESSION the State making the reservation is deemed to be a party to the treaty in respect of all parties thereto 1. A State or organization of States may accede to subject to the right of the other parties not to consider a treaty, which it has not signed or ratified, by formally themselves bound by the particular clause of the declaring in a written instrument that the treaty is treaty in relation to the State making the reservation. binding upon it. 4. A State is deemed to have agreed to a reservation 2. Accession is admissible only subject to the provi- made by another State if, within three months of the sions of the treaty. receipt of notification of the reservation in question, 3. Unless otherwise provided, accession may be it has not forwarded to the depositary authority a effected at any time after the establishment of the statement containing a formal rejection of the reser- text of the treaty. vation. 92 Yearbook of the International Law Commission, Vol. II Alternative draft B of article 9 or reservations limiting or otherwise varying the obli- If, in any case where a multilateral treaty does not gations of any article or articles of the treaty the expressly prohibit or limit the faculty of making reser- following procedure shall apply in the absence of any vations, a State signs, ratifies, accedes to or otherwise other provisions .in the treaty: accepts the treaty subject to a reservation or reserva- 1. The parties or the organ of an international tions limiting or otherwise varying the obligations of organization responsible for establishing the text of any article or articles of the treaty, the following the treaty shall request the International Court procedure shall apply in the absence of any other pro- of Justice to designate under its rules a Chamber of visions in the treaty: Summary Procedure to decide on the admissibility of 1.