Draft Articles on the Law of Treaties with Commentaries, 1966
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Draft Articles on the Law of Treaties with commentaries 1966 Text adopted by the International Law Commission at its eighteenth session, in 1966, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 38). The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 1966, vol. II. Copyright © United Nations 2005 Reports of the Commission to the General Assembly 187 5. Where an error is discovered in a certified copy of sidered it essential, first, to remove from former articles 1 a treaty, the depositary shall execute a proces-verbal and 3 (articles 2 and 5 of the present draft) the provisions specifying the rectification and communicate a copy to relating to treaties not specifically the subject of the the contracting States. present articles and, secondly, to indicate clearly the restriction of the present articles to treaties concluded Article 75. Registration and publication of treaties between States. Accordingly, it decided to make the appropriate adjustments in articles 1 and 5 and to insert Treaties entered into by parties to the present articles article 1 restricting the scope of the draft articles to shall as soon as possible be registered with the Secretariat treaties concluded between States. The Commission of the United Nations. Their registration and publication examined whether the object could be more appropriately shall be governed by the regulations adopted by the General achieved by merely amending the definition of treaty Assembly of the United Nations. in article 2. But considerations of emphasis and of draft- ing convenience led it to conclude that the definition of Draft articles on the law of treaties with commentaries the scope of the draft articles in the first article is desirable. Part I.—Introduction (4) The Commission considered it no less essential to 35 prevent any misconception from arising from the express Article I. The scope of the present articles restriction of the draft articles to treaties concluded The present articles relate to treaties concluded between between States or from the elimination of the references States. to treaties of "other subjects of international law" and of "international organizations". It accordingly decided Commentary to underline in the present commentary that the elimina- (1) This provision defining the scope of the present tion of those references is not to be understood as implying articles as relating to "treaties concluded between States" any change of opinion on the part of the Commission has to be read in close conjunction not only with arti- as to the legal nature of those forms of international cle 2(l)(a), which states the meaning with which the term agreements. It further decided to add to article 3 (former "treaty" is used in the articles, but also with article 3, article 2) a specific reservation with respect to their which contains a general reservation regarding certain legal force and the rules applicable to them. other categories of international agreements. The sole 36 but important purpose of this provision is to underline Article 2. Use of terms at the outset that all the articles which follow have been 1. For the purposes of the present articles: formulated with particular reference to treaties concluded (a) "Treaty" means an international agreement con- between States and are designed for application only cluded between States in written form and governed by to such treaties. international law, whether embodied in a single instrument (2) Article 1 gives effect to and is the logical consequence or in two or more related instruments and whatever its of the Commission's decision at its fourteenth session particular designation. not to include any special provisions dealing with the (b) "Ratification", "Acceptance", "Approval", and treaties of international organizations and to confine the "Accession" mean in each case the international act so draft articles to treaties concluded between States. named whereby a State establishes on the international Treaties concluded by international organizations have plane its consent to be bound by a treaty. many special characteristics; and the Commission con- (c) "Full powers" means a document emanating from sidered that it would both unduly complicate and delay the competent authority of a State designating a person the drafting of the present articles if it were to attempt to represent the State for negotiating, adopting or authen- to include in them satisfactory provisions concerning ticating the text of a treaty, for expressing the consent treaties of international organizations. It is true that of the State to be bound by a treaty, or for accomplishing in the draft provisionally adopted in 1962, article 1 any other act with respect to a treaty. defined the term treaty "for the purpose of the present articles" as covering treaties "concluded between two (d) "Reservation" means a unilateral statement, how- or more States or other subjects of international law". ever phrased or named, made by a State, when signing, It is also true that article 3 of that draft contained a ratifying, acceding to, accepting or approving a treaty, very general reference to the capacity of "other subjects whereby it purports to exclude or to vary the legal effect of international law" to conclude treaties and a very of certain provisions of the treaty in their application to general rule concerning the capacity of international that State. organizations in particular. But no other article of that (e) "Negotiating State" means a State which took part draft or of those provisionally adopted in 1963 and in the drawing up and adoption of the text of the treaty. 1964 made any specific reference to the treaties of inter- (/) "Contracting State" means a State which has national organizations or of any other "subject of consented to be bound by the treaty, whether or not the international law". treaty has entered into force. (3) The Commission, since the draft articles were being (g) "Party" means a State which has consented to be prepared as a basis for a possible convention, con- bound by the treaty and for which the treaty is in force. 35 1965 draft, article 0. 36 1962 and 1965 drafts, article 1. 188 Yearbook of the International Law Commission, 1966, Vol. II (h) "Third State" means a State not a party to the agreements and formal agreements. Thirdly, even in the treaty. case of single formal agreements an extraordinarily varied (0 "International organization" means an intergovern- nomenclature has developed which serves to confuse the mental organization. question of classifying international agreements. Thus, in addition to "treaty", "convention" and "protocol", 2. The provisions of paragraph 1 regarding the use of one not infrequently finds titles such as "declaration", terms in the present articles are without prejudice to the "charter", "covenant", "pact", "act", "statute", "agree- use of those terms or to the meanings which may be given ment", "concordat", whilst names like "declaration" to them in the internal law of any State. "agreement" and "modus vivendi" may well be found given both to formal and less formal types of agree- Commentary ments. As to the latter, their nomenclature is almost (1) This article, as its title and the introductory words illimitable, even if some names such as "agreement", of paragraph 1 indicate, is intended only to state the "exchange of notes", "exchange of letters", "memoran- meanings with which terms are used in the draft articles. dum of agreement", or "agreed minute" may be more 39 (2) "Treaty". The term "treaty" is used throughout the common than others. It is true that some types of instru- draft articles as a generic term covering all forms of inter- ments are used more frequently for some purposes national agreement in writing concluded between States. rather than others; it is also true that some titles are Although the term "treaty" in one sense connotes only more frequently attached to some types of transaction the single formal instrument, there also exist international rather than to others. But there is no exclusive or syste- agreements, such as exchanges of notes, which are not matic use of nomenclature for particular types of trans- a single formal instrument, and yet are certainly agree- action. Fourthly, the use of the term "treaty" as a generic ments to which the law of treaties applies. Similarly, term embracing all kinds of international agreements in very many single instruments in daily use, such as an written form is accepted by the majority of jurists. "agreed minute" or a "memorandum of understanding", (4) Even more important, the generic use of the term could not appropriately be called formal instruments, "treaty" is supported by two provisions of the Statute but they are undoubtedly international agreements of the International Court of Justice. In Article 36, subject to the law of treaties. A general convention on paragraph 2, amongst the matters in respect of which the law of treaties must cover all such agreements, and States parties to the Statute can accept the compulsory the question whether, for the purpose of describing jurisdiction of the Court, there is listed "a. the interpreta- them, the expression "treaties" should be employed rather tion of a treaty". But clearly, this cannot be intended to than "international agreements" is a question of termi- mean that States cannot accept the compulsory juris- nology rather than of substance. In the opinion of the diction of the Court for purposes of the interpretation Commission a number of considerations point strongly of international agreements not actually called treaties, in favour of using the term "treaty" for this purpose. or embodied in instruments having another designation. (3) First, the treaty in simplified form, far from being Again, in Article 38, paragraph 1, the Court is directed at all exceptional, is very common, and its use is steadily to apply in reaching its decisions, "a.