Document:- A/CN.4/167 and Add.1-3 Third Report on the law of treaties, by Sir Humphrey Waldock, Special Rapporteur Topic: Law of Treaties Extract from the Yearbook of the International Law Commission:- 1964 , 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 [Agenda item 3] DOCUMENT A/CN.4/167 and Add.1-3 Third Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur [Original text: English] \3 March, 9 June, 12 June and 7 July 1964] CONTENTS Page INTRODUCTION A. The basis of the present report 6 B. The scope and arrangement of the present group of draft articles 6 PART in. APPLICATION, EFFECTS, REVISION AND INTERPRETATION OF TREATIES Section I. The application and effects of treaties 7 Article 55 : Pacta sunt servanda 7 Commentary 7 Article 56: The inter-temporal law 8 Commentary 9 Article 57: Application of treaty provisions ratione temporis 10 Commentary 10 Article 58: Application of a treaty to the territories of a contracting State 12 Commentary 12 Article 59: Extension of a treaty to the territory of a State with its authorization 15 Commentary 15 Article 60: Application of a treaty concluded by one State on behalf of another 16 Commentary 16 Article 61: Treaties create neither obligations nor rights for third States 17 Commentary 17 Article 62: Treaties providing for obligations of rights of third States 19 Commentary 20 Article 63: Treaties providing for objective regimes 26 Commentary 27 Article 64: Principles of a treaty extended to third States by formation of international custom 34 Commentary 34 Article 65: Priority of conflicting treaty provisions 34 Commentary 35 Article 65A: The efifect of breach of diplomatic relations on the application of treaties 44 Commentary 44 Article 66: Application of treaties to individuals 45 Commentary 45 Section II. The amendment and revision of treaties Article 67: Proposals for amending or revising a treaty 47 Article 68: Right of a party to be consulted in regard to the amendment or revision of a treaty 47 Article 69: Effect of an amending or revising instrument on the rights and obligations of the parties 47 Commentary 47 5 Yearbook of the International Law Commission, Vol. II CONTENTS {continued) Page Section HI. Interpretation of treaties Article 70: General rules 52 Article 71: Application of the general rules 52 Article 72: Effective interpretation of the terms 53 Article 73 : Effect of a later customary rule or of a later agreement on interpretation of a treaty 53 Commentary 53 Article 74: Treaties drawn up in two or more languages 62 Article 75: Interpretation of treaties having two or more texts or versions 62 Commentary 62 Introduction naturally given full consideration to those reports in drafting the articles on the application of treaties now A. The basis of the present report submitted to the Commission. 1. At its fourteenth and fifteenth sessions the Com- 4. As to the particular question of conflicts between treaties, this was discussed by Sir H. Lauterpacht in mission provisionally adopted parts I and II of its draft 8 4 articles on the law of treaties, consisting respectively successive reports in 1953 and 1954 in the context of the validity of treaties, and again by Sir G. Fitz- of twenty-nine articles on the conclusion, entry into B force and registration of treaties and twenty-five articles maurice in his third report in 1958 in the same con- on the invalidity and termination of treaties.1 In text. The present Special Rapporteur also examined this question in the context of " validity " in his second adopting parts I and II the Commission decided, in 6 accordance with articles 16 and 21 of its Statute, to report, presented to the Commission at its fifteenth submit them, through the Secretary-General, to Govern- session, but in that report he suggested that the question ments for their observations. At its fifteenth session ought rather to be considered in the context of the the Commission decided to continue its work on the " application " of treaties. The Commission, without law of treaties at its next session, and to take up at in any way prejudging its position on the point, decided that session the questions of the application, inter- to postpone its consideration of the question of conflicts pretation and effects of treaties. The Special Rapporteur between treaties until its sixteenth session, when it would have before it the present report, covering the accordingly now submits to the Commission his third 7 report dealing with these aspects of the law of treaties. application of treaties. The Special Rapporteur, for reasons explained in the commentary to article 65 of 2. In considering the effects of treaties on third States the present report, felt it advisable to submit to the and the application of conflicting treaties, the Special Commission a fresh study of this question oriented to Rapporteur came to the conclusion that the Commis- the " application " rather than to the " validity " of sion might find it desirable to study the question of treaties. the revision of treaties in conjunction with its study of those two topics. As the Commission has not yet B. The scope and arrangement of the present group taken up this question nor assigned any specific place of draft articles to it in the law of treaties, the Special Rapporteur decided to insert in this report a section on the revision 5. The present group of draft articles thus covers the of treaties immediately after that dealing with the broad topics of (a) application and effects of treaties application and effects of treaties. (including conflicts between treaties), (b) the revision of treaties, and (c) the interpretation of treaties; and 3. The revision and the interpretation of treaties are the articles have correspondingly been arranged in three topics which have not been the subject of reports sections dealing with these topics. As stated in para- by any of the Commission's three previous Special 8 Rapporteurs on the law of treaties. The topic of the graph 18 of its report for 1962 and recalled in application of treaties, on the other hand, was the subject of a full study by Sir Gerald Fitzmaurice in s Yearbook of the International Law Commission, 1953, his fourth and fifth reports in 1959 and I960.2 vol. II, p. 156. 4 Yearbook of the International Law Commission, 1954, However, owing to the pressure of other work the vol. II, p. 133. Commission was not then able to take up its examina- 8 Yearbook of the International Law Commission, 1958, tion of those reports. The Special Rapporteur has vol. II, pp. 27 and 41. 6 Yearbook of the International Law Commission, 1963, 1 Yearbook of the International Law Commission, 1962, vol. II, p. 53, article 14 and commentary. vol. II, pp. 159 et seq., and 1963, vol. II, pp. 189 et seq. ' Ibid., p. 189, para. 15. 1 Yearbook of the International Law Commission, 1959, 8 Yearbook of the International Law Commission, 1962, vol. II, pp. 37-81, and 1960, vol. II, pp. 69-107. vol. II, p. 160. Law of Treaties paragraph 12 of its report for 1963,9 the Commission's State succession. Consequently, this aspect of the effects plan is to prepare three groups of the draft articles of treaties on third States has been omitted from the covering the principal topics of the law of treaties and, Special Rapporteur's study of that subject. when these have been completed, to consider whether they should be amalgamated to form a single draft 7. In this part, as in parts I and II, the Special convention or whether the codification of the law of Rapporteur has sought to codify the modern rules of treaties should take the form of a series of related international law on the topics with which the report conventions. The Special Rapporteur has therefore deals. On some questions, however, the articles prepared the present draft in the form of a third self- formulated in the report contain elements of the pro- contained group of articles closely related to those in gressive development as well as of the codification of parts I and II, which have already been transmitted the applicable law. to Governments for their observations. However, in accordance with the Commission's decision at its fifteenth session, the Special Rapporteur has not given Part HI. Application, effects, revision the articles in the present group a separate set of and interpretation of treaties numbers, but has numbered them consecutively after the last article of part II — the first article being numbered 55. SECTION I: THE APPLICATION AND EFFECTS OF TREATIES 6. " Application of treaties " overlaps to a certain extent with two topics which are the subject of separate Article 55. — Pacta sunt servanda studies by the Commission and which it has assigned to other Special Rapporteurs, namely, the responsibility 1. A treaty in force is binding upon the parties and of States and the succession of States and Govern- must be applied by them in good faith in accordance ments.10 In the case of the responsibility of States, the with its terms and in the light of the general rules of problem that faced the Special Rapporteur on the law international law governing the interpretation of treaties. of treaties was how far he should go into the legal 2. Good faith, inter alia, requires that a party to a liability arising from a failure to perform treaty obliga- treaty shall refrain from any acts calculated to prevent tions.