1 Text in 72 AJIL 971 and UN Doc. A/CONF.80/31 (1978) and Corr.l (English only) and Corr.2 (French only). At the time of writing, none of the documents cited in this paper had yet appeared in the published Official Records of the conference.

2 The General Assembly of the United Nations, by Resolution 3496 (XXX) of December 15, 1975, decided to convene a conference of plenipotentiaries in 1977 to consider the “draft articles on succession of States in respect of treaties” adopted by the International Law Commission at its 26th session (Report of the International Law Commission on the work of its 26th session, chapter II, section D, 29 Un Gaor, Supp. (No. 10) 16, UN Doc. A/9610/Rev.l (1975)), and to embody the results of its work in an international convention and such other instruments as it might deem appropriate. By its Resolution 31/18 of November 24, 1976, the General Assembly decided, inter alia, that the conference was to meet at Vienna from April 4 to May 6, 1977, and requested the Secretary-General to invite “all States” to participate. As the conference was unable to complete its work within this time, the General Assembly, on the recommendation of the conference (see the conference's report on its work in 1977, issued under the symbol UN Doc. A/CONF.80/15), approved, by Resolution 32/47 of December 8, 1977, the convening of a resumed session, which was held in Vienna from July 31 to August 23, 1978.

3 In accordance with Article 49( 1), the Convention, to which “all States” may become parties (Arts. 46 and 48), is to enter into force on the 30th day after at least 15 states have taken action to become parties to it. The formalities by which a state becomes a party to the Convention were, up to February 28, 1979, signature followed by ratification and, thenceforth, accession (Arts. 46 to 48). At the time of writing, the Convention has been signed by 15 states, none of which have ratified. Nor have any instruments of accession been deposited. It is therefore not yet in force. No declarations under Article 43 have been made as yet.

4 This annex is identical with the annex to the Vienna Convention on the Law of Treaties (reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969)) except in two respects, one of which is of pure form.

5 At the 1977 session, the United States proposed the insertion of an article on settlement of disputes to be numbered 39 bis, together with an annex to the Convention relating to that article. (For the texts, see the report of the conference, supra note 2, at 89-91 of the English version.) This proposal was not dealt with until the resumed session of the conference. At that session, the Committee of the Whole considered it in revised form (for the revised text, see UN Doc. A/CONF.80/C.1/L.61 (1978), at 66-67), together with an alternative article proposed by the Netherlands at the resumed session and later withdrawn (for the text, see id. at 68).

6 At its 45th meeting on August 4, 1978, the committee decided to set up the Ad Hoc Group on Peaceful Settlement of Disputes, the composition of which ﹛see note 7 infra), however, was not determined until the 49th meeting, held on August 8. At its 46th meeting on August 7, the committee decided to postpone further consideration of the proposals by the United States and the Netherlands (see note 5 supra) until the Ad Hoc Group had made its recommendations on them.

7 The Ad Hoc Group was composed of 15 states, as follows: Brazil, Bulgaria, Czechoslovakia, Guyana, Iraq, Malaysia, Mali, the Netherlands, Niger, Sri Lanka, Swaziland, the USSR, the United Kingdom, the United States, and Venezuela. It was “open ended” in the sense that states participating in the conference with a particular interest in its work were allowed to participate. On August 14, the Ad Hoc Group adopted its report (UN Doc. A/CONF.80/L.60 (1978) and Corr.l), which contained no reference at all to the proposal by the United States and the alternative proposal by the Netherlands (which was withdrawn on the following day at the 52nd meeting). The report was considered by the Committee of the Whole at its 51st and 52nd meetings, held on August 15. The 5 articles recommended by the Ad Hoc Group read as follows:

8 The Committee of the Whole made this decision at its 52nd meeting, held on August 15.

9 The two reports of the Drafting Committee to the Committee of the Whole regarding part VI and the annex to the Convention (UN Docs. A/CONF.80/C.1/9 (1978), which contains the text of part VI, and A/CONF.80/C.l/9/Add.l (1978), which contains that of the annex) merely give the proposed texts, without any comment.

10 The reports were introduced at the 57th meeting of the Committee of the Whole, held on August 22. (The summary record of this meeting is UN Doc. A/CONF.80/ C.1/SR.57.)

11 See UN Doc. A/CONF.80/C.1/SR.S1 (1978), at 4 of the English version. The meeting was held on August 15.

12 Id. at 8.

13 Id. at 10.

14 See UN Doc. A/CONF.80/C.1/SR.52 (1978), at 3 of the English version. The meeting was held on August 15.

15 Id. at 5.

16 Article 33(1) of the Charter refers to “negotiation,” not to consultation, as one of the peaceful means of settling international disputes. The word “consultation” is normally used in treaties in connection with practical difficulties that arise in the application of the treaties but fall short of disputes, which difficulties the parties are enjoined to resolve by means of consultations. (But see Article 84 of the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character [text in 69 Ajil 730 (1975)], which provides for consultations, prior to conciliation, between states parties to disputes relating to the application or interpretation of the convention.)

17 See para. 87 of the judgment of the Court in the North Sea Continental Shelf cases, [1969] ICJ REP. 47-48.

18 In his statement at the 51st meeting of the Committee of the Whole, supra note 13, the representative of Sierra Leone alluded to that idea, stating that “to meet the concern of those who feared that consultation and negotiation would delay the settlement of disputes, it could be expressly stated [in Article A] that they must be conducted in good faith.“

19 None of the provisions of the treaties governing the jurisdiction of the Court listed in the 1977-1978 Yearbook of the Court refer to requests for negotiations and consultations. (See this publication at 79-94.) The same is true of the provisions of multilateral treaties appearing in the following publications: Arbitration and security— systematic survey of the arbitration conventions and treaties of mutual security deposited with the league of nations (publications of the league of nations, v. legal, 27.v.29); systematic survey of treaties for the pacific settlement of international disputes 1928-1948 (un pub. sales no. 1949.v.3); a survey of treaty provisions for the pacific settlement of international disputes 1949-1962 (un pub. sales no. 66.v.5); collection of texts governing the jurisdiction of the court (series d, nos. 2-6, published by the permanent court of international justice); annex: final clauses of the un publication entitled multilateral treaties in respect of which the secretary-general performs depositary functions, and the 9 supplements to this annex; the treaty Maker's Handbook 117-31 (eds. H. Blix & J. H. Emerson, 1973). For a clause of abilateral treaty providing for a request for negotiations between the parties with regard to disputes under the treaty and specifying that the time limit for the initiation of an arbitration procedure is to run from the date of the request, see paras. 1 and 2 of Art. 8 of the Air Transport Agreement between Cameroon and France, 412 UNTS 147.

20 Article 85 of the Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character, supra note 16, provides that the conciliation procedure which is the subject of this provision is to be initiated within 1 month from the date of the inception of the consultations to be held pursuant to the preceding article of the convention. (Articles 84 and 85 lay down procedures for the settlement of disputes relating to the application or interpretation of the treaty.) For a comparable treaty provision, see Article 15(2) of the European Convention concerning the Social Security of Workers engaged in International Transport, 314 UNTS 10.

21 Provisions along these lines are contained in certain air service agreements. See, e.g., Art. 10, paras. 1 and 2, of the agreement of this type between the Sudan and the United Kingdom, 424 UNTS 233.

22 The relevant parts of this article, entitled “Procedures for judicial settlement, arbitration and conciliation,” are as follows:

23 At the 51st meeting of the Committee of the Whole, on August 15, the representative of Venezuela referred to the “compulsory nature” of the conciliation procedure. (See UN Doc. A/CONF.80/C.1/SR.51 (1978), at 4-5.) At the 52nd meeting of the Committee, held on the same day, the representative of France, referring to the article (Article B, quoted in note 7, supra) that was to become Article 42, said that “in his view, the members of the Ad Hoc Group had intended to provide for a compulsory conciliation procedure, once such a request had been submitted, and by ‘compulsory’ he understood that it was the conciliation procedure—as opposed to the decision reached as a result of that procedure—that would be compulsory.” (UN Doc. A/CONF.80/C.1/SR.52 (1978), at 6 of the English version.) At the same meeting, the representative of Turkey characterized the conciliation procedure as “obligatory” (id. at 4). Further, on August 22, when introducing the report (UN Doc. A/CONF.80/C.1/9 (1978)) in which the Drafting Committee recommended the texts of the 5 articles of part VI and the corresponding titles to the Committee of the Whole, the chairman of the former committee stated that the conciliation procedure was compulsory. (See Un Doc. A/CONF.80/C.1/SR.57 (1978), at 3-4 of the English version.) None of these statements conflict with any other statement in the records of the relevant meetings of the Committee of the Whole or of the Plenary.

24 This is the impression gained from a perusal of the treaties and treaty provisions referred to in note 19 supra, as well as the writings of legal scholars that are germane to the question. Although it is not a compromissory clause at all, Article 43 has, for practical purposes, the effects of a compromissory clause of the “opting in” variety. (For an example of such a clause, see Article 287 of the Informal Composite Negotiating Text in 8 third united nations conference on the law of the sea: official records, un docs. A/CONF.62/WP.10 and Add.l (1977). The “opting out” modality of compromissory clause is illustrated by Article 24 of the Tokyo Convention on Offences and Certain other Acts Committed on board Aircraft, 704 UNTS 219, and Article 12 of the Convention for the Suppression of Unlawful Seizure of Aircraft of December 16, 1970, reprinted in 10 ILM 133 (1971). Article 43 is the result of a compromise of sorts reached in the Ad Hoc Group between, on the one hand, the Western states, who would have preferred an “opting out” system, and, on the other hand, the Eastern European and the majority of the Third World states, who leaned toward an “opting in” type of provision. (The revised U.S. proposal mentioned in note 5 supra was an instance of the “opting out” modality combining arbitration and recourse to the Court; the Netherlands proposal also mentioned there was a compromissory clause pure and simple, otherwise following the same approach.)

25 Compare Art. 40(1) of the Statute, reading as follows: “Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar. In either case the subject of the dispute and the parties shall be indicated.“

26 Presumably, a declaration under Article 43 can give the Court jurisdiction only if the declaring state is one of the parties to the Statute of the Court (i.e., either a member of the United Nations or one of the three states, Liechtenstein, San Marino, and Switzerland, parties to the Statute under Article 93(2) of the UN Charter) or has made an appropriately worded “general” declaration in accordance with the conditions laid down, pursuant to Article 35(2) of the Statute, by Security Council Resolution 9 (1946) of October 15, 1946. (For examples of such declarations, see 137 UNTS 3, 7, and 11, 149 UNTS 285, 150 UNTS 147, and 189 UNTS 223.) It would appear that a state not a party to the Statute could not obviate the need for such a “general” declaration by contending that Article 43 is one of the “special provisions contained in treaties in force” contemplated by Article 35(2) of the Statute. The essential reason for this is that the travaux préparatoires pertaining to this (somewhat obscure) provision do not support such a contention. (See M. Hudson, the Permanent Court of International Justice 159-60 (1934), and Jurist 30, G/22, 14 UNCIO Docs. 144 (1945).)

27 In its judgment No. 12 on the Upper Silesia Minority Schools case, the Permanent Court of International Justice stated that it was immaterial in what form the consent to its jurisdiction had been given. The International Court of Justice repeated and apparently enlarged the scope of that dictum in its judgment in the preliminary objection in the Corfu Channel case:

[1947-1948] ICJ REP. 28.

A review of that judgment of the Permanent Court and holdings in other cases submitted to it led Sir Hersch Lauterpacht to conclude that

28 It may be noted that the duality does not appear to be indispensable in the sense that Convention declarations can accomplish what Statute declarations cannot. For, although such action might do some violence to the spirit of Article 36(2) of the Statute, there does not seem to be any compelling reason why a state could not make a Statute declaration concerning exclusively a given treaty to which it is a party. (In fact, there appears to be a precedent supporting this view. In 1946 the United King dom made a Statute declaration [1 UNTS 3] relating to “all legal disputes concerning the interpretation, application or validity of any treaty relating to the boundaries of British Honduras, and over any questions arising out of any conclusion which the Court may reach with regard to any such treaty.” It would seem that this declaration refers to only one treaty, namely, one concluded in 1859 by Guatemala and the United Kingdom.)

29 See Art. 36(4) of the Statute.

30 Article 2(1) of the Regulations to give Effect to Article 102 of the Charter of the United Nations (76 UNTS XX) provides for such registration, which implies publication in the United Nations Treaty Series. In accordance with Article 4(1)(c) of these regulations, the Convention will be registered ex officio by the United Nations, the Secretary-General being the depositary pursuant to Article 50 of the Convention.

31 In this respect the leading case is that of Certain Norwegian Loans, [1957] ICJ REP. 9. For a comprehensive treatment of the whole question, see Briggs, Reservations to the Acceptance of Compulsory Jurisdiction of the International Court of Justice, 93 RECUEIL DES COUHS 245-68 (1958 I). A point worth making concerns Convention declarations applying the possessive adjective to their subject matter. Let us suppose that a state which has made a Convention declaration subject to a reservation excluding disputes concerning state successions relating to its territory is involved with another party to the Convention in a dispute concerning a state succession relating to the territory of that state and falling within part VI of the Convention. The latter state has made a Convention declaration subject to no reservation. It appears that it could not, if the other state sought to bring it before the Court on the basis of the two declarations, set aside the jurisdiction of the Court by relying on the reservation appended to the declaration of the applicant state. (Compare HUDSON, note 26 supra, at 403, para. 433.)

32 To the author's knowledge the only parallel with this situation that can be drawn from actual practice is the case of the “general” declarations by which, in conformity with operative paragraphs 1 and 2 of Security Council Resolution 9 (1946) of October 15, 1946 (see note 26 supra) certain states not parties to the Statute accepted the jurisdiction of the Court and recognized it as compulsory, ipso facto and without special agreement. (For examples of such declarations, see that of Ceylon [the present Sri Lanka], 137 UNTS 11, and that of Cambodia [the present Democratic Kampuchea], 149 UNTS 285.) The cited resolution provides, in paragraph 2, that such declarations “may not, without explicit agreement, be relied upon vis-à-vis States Parties to the Statute which have made the declaration in conformity with article 36, paragraph 2, of the Statute.“

33 For interaction to be possible it appears that it would have been necessary to expand the final phrase of Article 43 to read, in substance, as follows: “provided that the other party to the dispute has made a like declaration or, if the declaration relied on provides for submission of disputes to the International Court of Justice, a declaration under article 36, paragraph 2, of the Statute of that body applicable to the Convention.” However, this additional phrase would not have been sufficient. To be sure, such a wording means that a state having made a Statute declaration but no Convention declaration, state D, is empowered to submit a dispute covered by Article 43 and arising between it and a state having made a Convention declaration but no Statute declaration, state C, to the Court. It is, however, insufficient to empower C unilaterally to bring D before the Court. But, if the analogy between Statute declarations and Convention declarations makes it logical to extend to the latter the rules applicable to the former, it is also logical to consider that those rules apply equally to any interaction between a declaration in one of the two categories and one falling within the other. A strong case can thus be made for the view that, if Article 43 had been expanded in the manner suggested, C would nevertheless be within its rights in objecting to the jurisdiction of the Court if D sought to bring it before this body under that article. This is because one of the rules applicable to Statute declarations is that a state that has made such a declaration can be brought before the Court against its will by another state having made such a declaration only insofar as it could itself impose the jurisdiction of the Court on the other state. Accordingly, for interaction to be possible (unless the travaux preparatoires had somehow indicated that the expanded version of Article 43 suggested above was meant to include state C as both defendant and plaintiff), Article 43 should have been further expanded by the addition of the following:

34 For examples of declarations so worded, see those of Haiti and Nicaragua, [1977- 1978] Y.B. ICJ 57, 69.

35 See Hambro, Some Observations on the Compulsory Jurisdiction of the International Court of Justice, 25 BRIT. Y.B. INT'L L. 136-37.

36 Briggs, note 31 supra, at 239-43 and 266-67. This author is of the view that Statute declarations made without any reservation at all as to reciprocity are nonetheless subject to the reciprocity provision (“in relation to any other state accepting the same obligation“) of Article 36(2).

37 One could also imagine a state making a Convention declaration accepting the jurisdiction of the Court with respect to disputes falling under part VI subject to no reservation or condition at all (or subject only to the condition that the procedures of Articles 41 and 42 of the Convention have been applied). The validity of such a declaration does not pose the problem of interaction between Convention declarations and Statute declarations, inasmuch as, if it is valid, it can be invoked against the state that made it by any other party to the Convention, whether or not it has made a Statute declaration or a Convention declaration. A comparison of Convention declarations made without any reservation as to reciprocity with their counterparts under the Statute provides an a fortiori argument against the view that the former are valid in full conformity with their terms. As has been noted, the weight of authority appears to be on the side of those who hold that Statute declarations of the type in question are to be deemed, despite their literal meaning, subject to the reciprocity provision (“in relation to any other state accepting the same obligation“) of Article 36(2), even though Article 36(3) contains a reference to “declarations … made unconditionally.” Since no such reference is to be found in Article 43 of the Convention, it would appear that a Convention declaration made without any reservation as to reciprocity would nevertheless be subject to the reciprocity provision of Article 43.

38 See the discussion on declarations referring solely to the Court, supra.

39 In view of the in dubio mitius rule of interpretation, it would seem that any alternative declaration that does not specify whether the option is to be exercised by the state making the declaration or by the state relying on it is to be construed as empowering the former to do so.

40 It is immaterial whether this alternative declaration provides for submission to the Court or arbitration at the option of the declarant state or of any other declarant state taking action against it.

41 However, if the opting state has made an alternative declaration reserving for itself the right to opt between the two means of settlement, it would seem that the other state could invoke this reservation so as to impose the means of settlement of its choice.

42 Paragraph 3 of the proposed article provided that “Any State Party which has made a declaration in accordance with paragraph 2 of this article may at any time withdraw that declaration by notification to the Secretary-General of the United Nations.” (For the text of the proposed article, see UN Doc. A/CONF.80/C.1/L.61, at 66-67 of the English version.)

43 For a comprehensive treatment of the matter, see S. ROSENNE, 1 THE law and practice of the international court of justice 415-18 (1965).

44 See, in the English version of the summary record of the 51st meeting of the Committee of the Whole (UN Doc. A/CONF.80/C.1/SR.51), the statements by the representatives of the Federal Republic of Germany, at 6, the United Kingdom, at 7, Austria, at 9, and the United States, at 10; and, in the version in the same language of the following meeting of that body (UN Doc. A/CONF.80/C.1/SR.52), the statements by the representatives of Turkey, at 4, and Somalia, at 5-6.