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Draft Articles on Succession of States in Respect of Treaties with Commentaries 1974

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Draft Articles on Succession of States in Respect of Treaties with Commentaries 1974 Draft articles on Succession of States in respect of Treaties with commentaries 1974 Text adopted by the International Law Commission at its twenty-sixth session, in 1974, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 85). The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 1974, vol. II, Part One. Copyright © United Nations 2005 174 Yearbook of the International Law Commission, 1974, vol. n, Part One 82. Taking into account the above points, the Com- The International Law Commission, mission has arranged the draft articles as follows: Having adopted the draft articles on succession of States in respect Part I: General provisions (articles 1 to 13); of treaties, Part II: Succession in respect of part of territory Desires to express to the Special Rapporteur, Sir Francis Vallat, its (article 14); deep appreciation of the outstanding contribution he has made to Part III: Newly independent States (articles 15 to 29); the treatment of the topic by his scholarly research and vast ex- perience, thus enabling the Commission to bring to a successful Part IV: Uniting and separation of States (articles 30 conclusion its work on the draft articles on the succession of States to 37); in respect of treaties. Part V: Miscellaneous provisions (articles 38 and 39). 83. The Commission's work on succession of States in respect of treaties constitutes both codification and D. Draft articles on succession of States progressive development of international law in the sense in respect of treaties in which those concepts are defined in article 15 of the Commission's Statute. The articles it has formulated PART I contain elements of both progressive development as well GENERAL PROVISIONS as of codification of the law and, as in the case of several previous drafts, it is not practicable to determine into Article 1J9 Scope of the present articles which category each provision falls. The present articles apply to the effects of a succession of States in respect of treaties between States. B. Recommendation of the Commission Commentary eo 84. At the 1301st meeting, on 26 July 1974, the Commission decided, in conformity with article 23 of its (1) This article corresponds to article 1 of the Vienna Statute, to recommend that the General Assembly Convention 61 and its purpose is to limit the scope of the should invite Member States to submit their written present articles in two important respects. comments and observations on the Commission's final (2) First, it gives effect to the Commission's decision draft articles on succession of States in respect of treaties that the scope of the present articles, as of the Vienna and convene an international conference of pleni- Convention itself, should be restricted to matters con- potentiaries to study the draft articles and to conclude cerning treaties concluded between States.62 It therefore a convention on the subject. underlines that the provisions which follow are designed for application only to "the effects of succession of in respect of treaties between States*." This restriction C. Resolution adopted by the Commission also finds expression in article 2, paragraph 1 (a), which gives to the term "treaty" the same meaning as in the 85. The Commission, at its 1301st meeting, on 26 July Vienna Convention, a meaning which specifically limits 1974, adopted by acclamation the following resolution: the term to "an international agreement concluded between States". (Foot-note 58 continued) (3) It follows that the present articles have not been International Law Commission. Any of the periods within which appointments must be made may be extended by agree- drafted so as to apply to the effects of a succession of ment between the parties to the dispute. States in respect of treaties to which other subjects of "Any vacancy shall be filled in the manner prescribed for the international law, and in particular international initial appointment. organizations, are parties. At the same time, the Com- "3. The Conciliation Commission shall decide its own pro- mission recognized that the principles which they cedure. The Commission, with the consent of the parties to contain may in some measure also be applicable with the dispute, may invite any party to the treaty to submit to it its views orally or in writing. Decisions and recommendations of reference to treaties to which other subjects of inter- the Commission shall be made by a majority vote of the five national law are parties. Accordingly, in article 3 it members. has made a general reservation on this point analogous "4. The Commission may draw the attention of the parties to to that article 3 of the Vienna Convention. the dispute to any measures which might facilitate an amicable settlement. (4) Secondly, article 1 gives effect to the Commission's "5. The Commission shall hear the parties, examine the decision that the present articles should be confined to claims and objections, and make proposals to the parties with a the effects of a succession of States in respect of view to reaching an amicable settlement of the dispute. "6. The Commission shall report within twelve months of its 891972 draft, article 1. For the text of the 1972 draft, see Year- constitution. Its report shall be deposited with the Secretary- book ... 1972, vol. II, p. 230, document A/8710/Rev.l, chap. II. C. General and transmitted to the parties to the dispute. The report 80 of the Commission, including any conclusions stated therein In order to avoid unnecessary complication, the commentaries regarding the facts or questions of law, shall not be binding do not, in most cases, mention minor drafting changes made to the upon the parties and it shall have no other character than that 1972 text of the articles. of recommendations submitted for the consideration of the parties 81 For all references to the Vienna Convention on the Law of in order to facilitate an amicable settlement of the dispute. Treaties, see Official Records of the United Nations Conference on "7. The Secretary-General shall provide the Commission the Law of Treaties, Documents of the Conference (United Nations with such assistance and facilities as it may require. The expenses publication, Sales No. E.70.V.5), p. 289. of the Commission shall be borne by the United Nations." 88 See above, paras. 67-69. Report of the Commission to the General Assembly 175 treaties.63 The use of the words "succession of States*" certain provisions of the treaty in their application to in the article is designed to exclude both "succession of that State; governments" and "succession of other subjects of in- (k) "contracting State" means a State which has ternational law", notably international organizations, consented to be bound by the treaty, whether or not the from the scope of the present articles. This restriction of treaty has entered into force; their scope finds further expression in article 2, para- (/) "party" means a State which has consented to be graph 1 (b), which provides that the term "succession of bound by the treaty and for which the treaty is in force; States" means for the purposes of the present draft "the replacement of one State by another in the responsibility (m) "other State party" means in relation to a successor for the international relations of territory*". State any party, other than the predecessor State, to a treaty in force at the date of a succession of States in respect of the territory to which that succession of States Article 2.64 Use of terms relates; (n) "international organization" means an intergovern- 1. For the purposes of the present articles: mental organization. (a) "treaty" means an international agreement concluded 2. The provisions of paragraph 1 regarding use of between States in written form and governed by inter- terms in the present articles are without prejudice to the national law, whether embodied in a single instrument or use of those terms or to the meanings which may be given in two or more related instruments and whatever its par- to them in the internal law of any State. ticular designation; (b) "succession of States" means the replacement of Commentary one State by another in the responsibility for the inter- national relations of territory; (1) This article, as its title and the introductory words (c) "predecessor State" means the State which has of paragraph 1 indicate, is intended only to state the been replaced by another State on the occurrence of a meaning with which terms are used in the draft articles. succession of States; (2) Paragraph 1 (a) reproduces the definition of the term "treaty" given in article 2, paragraph 1 (a), of the (</) "successor State" means the State which has re- Vienna Convention. It results from the general con- placed another State on the occurrence of a succession clusions reached by the Commission concerning the of States; scope of the present draft articles and its relationship (e) "date of the succession of States" means the date with the Vienna Convention.65 Consequently, the term upon which the successor State replaced the predecessor "treaty" is used throughout the present draft articles, as State in the responsibility for the international relations in the Vienna Convention, as a general term covering all of the territory to which the succession of States relates; forms of international agreement concluded between (/) "newly independent State" means a successor State States in written form and governed by international the territory of which immediately before the date of the law, whether embodied in a single instrument or in two or succession of States was a dependent territory for the more related instruments and whatever its particular international relations of which the predecessor State designation.
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