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General Assembly on the Work of Its Twenty-Third Session --··---·--~,--- UNITED NATIONS .UN LIBRArl'( Distr. GENERAL GENERAL A/CN.4/256 ASSEMBLY 10 April 1972 ORIGINAL: ENGLISH INTERNATIONAL LAW COMMISSION Twenty-fourth session Article 18 2 May-7 July 1972 FIFTH REPORT ON SUCCESSION IN RESPECT OF TREATIES by Sir Humphrey Waldeck, Special Rapporteur 72-08032 I . .. GE.72-l2009 _. A/.9N~_~/256 English Page 2 TABLE OF CONTENTS I. INTRODUCTION • • • • • • • • . • • • • 3 II. TEXT _OF D:nAFT ARTICLES .WITH COl.fl.fENTARY . .4 Part III - Particular Categories of Succession Article 18 - Former Protected States, Trusteeships and other Lependencies • • • 4 Connnentary . 4 (a) Protected States • • 6 (b) Mandates and Trusteeships . 19 (c) Colonies 32 (d) Associated States 35 '/ ... A/CN.4/256 English Page 3 I. INTRODUCTION A. Basis of the present report 1. The present report takes the form of a continuation of the Special Rapporteur's second, l/ third 2/ and fourth 1/ reports on this topic, and is designed to complete the series of dr~ft articles presented in those reports. 4/ The basis on which these reports, including the present one, are being prepared and the scheme of the draft articles are thought to have been sufficiently explained in the "Introductions" to the previous reports and in chapter III of the Connnission' s' report to the General Assembly on the work of its twenty-third session. 5/ Accordingly, it is not thought that it would serve any purpose to repeat-those exp~anations here; more especially when both the basis of the work and the scheme of the draft must.· remain entirely provisional until some of the more .p,,-nrlatriental aspect~ of·the topic have been considered by the Commission. 2. The Special Rapporteur therefore confines himself to mentioning a minor change in the arrangement of the draft articles from that envisaged by him at the twenty-third session. 6/ He then indicated that any provisions concerning "dispositive", "localized" or "territorial" treaties would be included·in the series of articles in part II dealing with the position of "new States" as defined in article 1, paragraph (e). 7 I It is :.now thought more convenient to consider the problems raised by these treaties separately and after dealing with the rules applicable to particular categories of succession. The reason is that, as some members of the Commission emphasized at the.twerity-second·session, .§../the problem of ''dispositive", "localized" or "territorial" treaties arises in connexion with cases of simple transfer of territory as well as in cases of new St~tes, protected States, Unions of States, etc. Accordingly, in the present report th,is problem is not treated in part II, which deals with "new States", but separately' in part ;IV, while part III is devoted to the rules applicable to the various particular categories of succession. 1/ A/CN.4/214 and Add.l (and Corr.l) and Add.2 /Yearbook of the International Law Commission, 1969, val. II, pp. 45-68/. ?} A/CN.il/224 and Add.l. 1/ A/CN.4/249. ~/ Reference may also be made to the Special R~porteur's First Report which, however, was of a preliminary character; A/CN.4/202 /Yearbook of the International Law Connnission, 1968, val. II, pp. 87-93/. 5/ Official Records of the General Assembly, Twenty-sixth Session, Supplement No. 10 (A/8410/Rey.l), paras. 62-70. §_/ Ibid.~ para. 66. II 11 'New State' means a succession where a territory which previously formed part of an existing State has become an independent State" Lsee Special Rapporteur's Third Report (A/CN.4/224 and Add.ll/; see also ibid., paragraph 2 of the commentary to article 1. 8/ Official Records of the General Assembly, Twenty-fifth Session, Supplement No. 10 (A/8010/Rev.l), para. 55. I .. A/CN.4/256 English Page: 4 II. TEXT OF DRAFT ARTICLES WITH COMMENTARY . Part III Particular Categories of Succes'sion 3. Part II contains the general rules proposed by the Special Rapporteur concerning· succession of "New States" in. respect of treaties. 9/ In addition, the term 11 new States" has for the purpose of the present articles been defined in article 7. paragraph (e) as covering any succession 11where ·a territory which previously formed part of an existing State has become an independent .State". Nevertheless, it is necessary for the Commission to consider what, if any, modifications or additions to the general rules in part II may be required for particular types of new States. The cases calling for examination in this :connexion appear to be: . (1) dependent territo:i'ies, comprising (a) "protected States", (b) mandates and trusteeships, (c) colonies and (d) associated territories; ( 2) a Union of States ; and ( 3) a separation of a State into two or more States. Article 18 Former Protected States, Trusteeships and other Dependencies 1. Where the succession has occurred in respect of a former protected State, Trusteeship, . or other dependent· territory, the rules set out in the present draft artic~es ·apply subject to the provisions of paragraph (2). 2. Unless terminated or suspended in conformity with its own provisions or with the general rules of international law: (a) a treaty to which a State was a party prior to its becoming a protected State continues in force with respect to that State; (b) a treaty to which a State, when a protected State, became a party in its own name and by its own will continues in force with respect to that State after its attainment of independence. Commentary (1) A preliminary question may arise as to whether a codification of the law of succession of Sta.tes in .the 1970s should ·include any provisions. regarding dependent 9/ Special Rapporteur's Third Report (A/CN.4/224, and Add.l) and Fourth Report (A/CN.4/249).- I ... A/CN.4/256 English Page 5 territories. A treaty setting out the rules of succession in respect of treaties would not "bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party". 10/ In regard to any previous act, fact or situation the parties would be bound only by rules to which they would be subject under international law independently of the Convention. 11/ Having regard, therefore, to the progressive disappearance of dependent territories, and to the modern law regardng self-determination ~.nshrined in the Cl:arter, the omission of provisions concerning dependent territories may be argued to be at once legally justifiable and politically preferable. ( 2) On the other side, however, it may be urged that a number of considerations make it desirable that any codification of the present topic should deal specifically with the questions raised by particuiar types of dependent territories. First, the law applicable to succession with regard to dependent territories m~ be relevant historically for determining the status to-day of a treaty claimed still to be in force; e. g. in the case of a former "protected State" or Class A Mandate. Hence there inay be advantage in attempting to provide an authoritative statement of that law, certain points in which m~ otherwise give rise to controversy. Secondly, in some cases' e.g~ treaties of a "dispositive11 or. territorial character, where customary law mey iinpO'se an obligation on a successor State to accept the treaty (or the situation established by it), it may be important to determine whether the particular status of the territory prior to independence is to be regarded as negativing the existence of such an obligation. 12/ Thirdly, dependency with regard to eXternal relations has not completely disappeared from the international scene and the emergence of some States to independence is very recent, so that the law ·governing succession in the case of dependent territories is still of present importance.· A fUrther consideration is that the differences between the various types of dependencies are much discussed in all the literature, including the most modern literature, concerning succession in respect of treaties; and there may, in consequence, be advantage in covering this aspect of the topic in the present draft, however briefly. (3) In any event, the Special Rapporteur thinks it incumbent upon him to provide the Commission with a study of the possible implications of a new State's former "protected", "mandate", "trusteeship", "colonial11 or "associated" status for its succession in re:3pect of treaties. Witt_.)ut such a study, -·~he Commission may lack 10/ Unless a contrary intention to make the treaty retroactive were established; see Vienna Convention on the Law of Treaties, article 28, (Official Records of the United Nations Conference on the Law of Treaties, Documents of the Conference, document A/CONF.39/27). 11/ Vienna Convention on thP. Lnv of 'l'reaties, nrticle 4. 12/ A view advanced by Tanganyika in relation to the Belbase A£reement /see para. of the commentn.ry to article and below, para. (4olf. / ... A/CN.4/256 English Page 6 the material to enable it to decide whether or not to include in the dr~;~.ft articles any provisions on this aspect of the topic. As will appear in the ensuing paragraphs of.this-commentary, the Special Rapporteur believes that for the most part the special characteristics of the various types of dependent territories do not modify the application of the general rules governing a new State's succession in respect of treaties. Once a clear distinction is made, as it has to be made, between ~n obligation and a rigr~ 13/ to continue ~ predecessor State's treaties, those special characteristics ao not.appear to call for different rules, except upon the points indicated in.the present article.
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