1 UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

2 Multilateral Treaties in respect of which the Secretary-General Performs Depositary Functions, UN Doc. ST/LEG/SER.D/13, at 597 (1980). Article 84(1) requires 35 ratifications or accessions for the entry into force of the Convention.

3 United Nations Conference on the Law of Treaties, Official Records of the Second Session [hereinafter cited as 2 Off. Rec], UN Doc A/CONF.39/11/Add.1, at 296 (1969). Consequently, a Spanish proposal to insert into the Convention an article reading, “No reservation is permitted to Part V of the present Convention,” was rejected.

4 See 1 C. Rousseau, Principes Généraux du droit International Public 292, 298-99 (1944).

5 See “Incompatible Provisions,” infra p. 794.

6 See text at note 32 infra.

7 United Nations Conference on the Law of Treaties, Official Records of the First Session [hereinafter cited as 1 Off. Rec], UN Doc. A/CONF.39/11, at 392. R. D. Kearney and Robert E. Dalton state: “There had been a good deal of off-the-record concern expressed during the 1968 session regarding amendments whose major purpose seemed to be improvement of the position of one or another party to a treaty dispute.” The Treaty on Treaties, 64 AJIL 495, 550 (1970).

8 United Nations Conference on the Law of Treaties, Official Records, Documents of the Conference [hereinafter cited as 3 Off. rec], UN Doc. A/CONF.39/11/ Add.2, at 252, UN Doc. A/CONF.39/C.1/L.399 (1969). The representative of Venezuela declared that his proposal “had its origin in a remark made at the 66th meeting by the United States representative.” 2 OFF. REC. at 333. One week earlier, however, the Swedish representative had also discussed the nonretroactivity of the Convention. Id. at 273 (para. 51).

9 Id. at 321.

10 3 Off. Rec. at 252, UN Doc. A/CONF.39/C.1/L.400 (Brazil, Chile, Kenya, Sweden, and Tunisia).

11 Id. at 252-53, UN Doc. A/CONF.39/C.1/L.403 (Brazil, Chile, Iran, Kenya, Sweden, Tunisia, and Venezuela):

Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject, in accordance with international law, independently of the Convention, the Convention will apply only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.

12 Id. at 253; 2 Off. Rec. at 341.

13 2 Off. Rec. at 176. Cf Silva, do Nascimento e, Le Facteur Temps dans les traites , 154 Recueil Descours 215, 286-91 (1977 I)Google Scholar.

14 The main debates on what was then draft Article 77 (now Article 4) are in 2 Off. Rec. at 316, 320, 321, 323, 325, 327, 330, 332-35, 337, 338 (Committee of the Whole); and at 165-67 (plenary meetings). Article 77 was discussed together with draft Article 76, which is now Article 81. The controversies over which states should be entitled to sign the Convention or accede to it entirely dominated these meetings. The debates on Article 77 (Article 4) are summarized and commented upon in Rosenne, The Temporal Application of the Vienna Convention on the Law of Treaties, 4 Cornell Int’l L.J. 1, 5-13 (1971).

15 Report of the International Law Commission on the work of its 26th session, UN Doc. A/9610/Rev.l, at 137, reprinted in [1974] 2 Y.B. Int’l L. Comm’n 157, 298, UN Doc. A/CN.4/SER.A/1974/Add.l, pt.1. In the commentary, the ILC states that the text of Article 4 is repeated “subject only to the adjustments necessitated by draft article 1” (on the scope of the draft articles). The ILC’s discussion of draft Article 4 did not touch upon the matter dealt with in this essay. [1974] 1 Y.B. Int’l L. Comm’n 234.

16 H. Thirlway, International Customary Law and Codification 108 (1972). D. P. O’Connell took the same stand. “Except in respect of those matters which can be regarded as codifications of the customary international law rules respecting treaties, the Convention [on the Law of Treaties] will only affect those treaties which are subsequently entered into by parties, all of whom have ratified the Convention.” 1 International Law 205 (2d ed. 1970).

17 See “Provisions of Doubtful Compatibility,” infra p. 789.

18 See “Incompatible Provisions,” infra p. 794.

19 See 2 L. Oppenheim, International Law 234 ff (7th ed. Lauterpacht 1952); see also Geek, , Allbeteiligungsklausel , in 1 K. Strupp, Wörterbuch Des Völkerrechts 28 (ed. Schlochauer 1960-62)Google Scholar.

20 36 Stat. 2277, TS No. 539. The 1899 version of this article is as follows:

The provisions contained in the Regulations mentioned in Article 1 are only binding on the Contracting Powers, in case of war between two or more of them. These provisions shall cease to be binding from the time when, in a war between Contracting Powers, a non- Contracting Power joins one of the belligerents.

32 Stat. 1803, TS No. 403.

21 I.e., a state that is not a party to it, in the modern terminology of treaty law.

22 L. Oppenheim, supra note 19, at 234-35 (footnotes omitted).

23 F. Von Liszt, Das Völkerrecht 258 (12th ed. Fleischmann 1925).

24 The common Article 2(3) of these Conventions states:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

See, e.g., the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31,6 UST 3114, TIAS No. 3362.

25 See text at note 30 infra.

26 Phrasing borrowed from the Judgment of the International Court of Justice in the North Sea Continental Shelf Cases, 1969 ICJ Rep. 4, para. 71.

27 2 Off. Rec. at 321.

28 Id. at 166-67 (para. 23).

29 We suggest that I. M. Sinclair takes the same position—albeit implicitly—by observing: “How [Article 4] will apply in relation to future multilateral treaties remains to be seen, since it is difficult to see how the Convention can be fully operative in relation to some parties only to such a treaty.” The Vienna Convention on the Law of Treaties 137 n.83 (1972).

30 See further text at notes 67-71 infra.

31 See text at note 28 supra.

32 This remarkable provision originated with the Drafting Committee. I Off. Rec. at 146.

33 Although not a word was said about Article 3(c) at the conference—see 2 Off. Rec. at 4—except for a short explanation by the Chairman of the Drafting Committee:

The aim [of Article 3(c)] was to show more clearly the scope of the convention, particularly with regard to trilateral or mixed international agreements, the parties to which included not only States, but also other subjects of international law. It had been thought advisable not to exclude all such agreements from the scope of the convention. Where such agreements were concerned, the convention should govern relations between States, but not relations between other subjects of international law or between them and States. The object of subparagraph (c) was to state in explicit and non-controversial terms a conclusion which might have been reached by a reasonable interpretation of the text of the original article.

1 Off. Rec. at 147.

34 If an interpretation of the rules in this category different from that adhered to by states that rely on customary international treaty law could be given by Convention parties, on the basis of the travaux préparatories of the Convention, this category of “codificatory provisions” would not, of course, be a valid one. However, we believe that the travaux préparatories do not contain indications to that effect.

35 See, inter alia. Articles 10 (authentication of the text), 12 (consent to be bound expressed by signature), 13 (idem by ratification, acceptance, or approval), 15 (idem by accession), 16 (exchange or deposit of instruments of ratification, acceptance, approval, or accession), 17 (consent to be bound by part of a treaty, and choice of different provisions), 18 (obligation not to defeat the object of a treaty prior to its entry into force), 19 (formulation of reservations), 24 (entry into force), 25 (provisional application), 28 (nonretroactivity of treaties), 29 (territorial scope of treaties), and 39 (general rule regarding the amendment of treaties). This list is not intended to be exhaustive.

36 Cf. text at notes 67-71 infra, on choice-of-law clauses.

37 Cf. the remarks by the Austrian delegate in 1 Off. Rec. at 81 (para. 12).

38 [1966] 2 Y.B. Int’l L. Comm’n 195, UN Doc. A/CN.4/SER.A/1966/Add.1; see also 2 Off. Rec. at 17-23.

39 1951 ICJ Rep. 15.

40 Cf. P. Imbert, Les Réserves Aux Traités Internationaux 72 ff. (1979). For a short survey/see, e.g., I. Brownlie, Principles of Public International Law 605-08 (3d ed. 1979).

41 [1966] 2 Y.B. Int’l L. Comm’n, supra note 38, at 206.

42 Id. at 202.

43 3 Off. Rec. at 265-66, UN Doc. A/CONF.39/L.3 (1969).

44 2 Off. Rec at 35.

45 Cf. P. Imbert, supra note 40, at 152 ff., especially 158-59, discussing the reversal of the presumption.

46 5 R. Int’l Arb. Awards 466, 471-72; cf. C. Rousseau, supra note 4, at 320-21, 457; and A. McNair, The Law of Treaties 313 (1961). On Article 18 and states not members of the League, see especially the analysis in D. Anzilotti, Cours de droit International 378- 83 (trans. Gidel 1929).

47 [1966] 2 Y.B. Int’l L. Comm’n, supra note 38, at 234.

48 At the conference, Sir Humphrey Waldock, acting as expert consultant, explicitly referred to the de lege ferenda character of the presumption. 1 Off. Rec. at 204.

49 [1966] 2 Y.B. Int’l L. Comm’n, supra note 38, at 235.

50 Cf. C. Rousseau, supra note 4, at 509 ff., 764-814; E. Hoyt, The Unanimity Rule in the Revision of Treaties. A Reexamination (1959).

51 Article 41(2) fails to indicate who is to perform the notification to the other parties. This may cause difficulties, especially in cases where the depositary of the treaty is not a party to the Convention. The same holds for Article 40(2), on notification of proposals to amend a multilateral treaty.

52 Report of the International Law Commission covering the work of its 15th session, UN Doc. A/5509, at 3, reprinted in [1963] 2 Y.B. Int’l L. Comm’n 187, 189, UN Doc. A/CN.4/SER.A/ 1963/Add.1.

53 [1966] 2 Y.B. Int’l L. Comm’n, supra note 38, at 237 (emphasis added).

54 Id. at 262.

55 See text at note 53 supra.

56 See Capotorti, , L’Extinction el la suspension des traités , 134 Recueil des Cours 417, 514, 536 (1971 III)Google Scholar. The author draws the conclusion that the procedure of part V is not applicable when grounds are invoked that are not included in the Convention. Id. at 578.

57 [1966] 2 Y.B. Int’l L. Comm’n, supra note 38, at 47.

58 Id. at 49.

59 2 Off. Rec. at 194. On problems relative to part V of the Convention, see, in particular, Rosenne, , The Settlement of Treaty Disputes under the Vienna Convention on the Law of Treaties of 1969 , 31 Zeitschrift für Ausländisches öffentliches Recht und Völkerrecht [ZaöRV] 1–62 (1971)Google Scholar. The author does not directly discuss the matter dealt with here; in fact, it is only with respect to paragraph 1 of the Annex that he observes, at p. 49:

The assumption of this paragraph is that the only disputes likely to involve Conciliation Commissions will be disputes between States which are either Members of the United Nations, or parties to the Vienna Convention. The possibility that only one of the parties to such a treaty-dispute will come within one or other of the categories is not contemplated. This may not be a theoretical matter.

Rosenne mentions a number of states that participated in the Vienna Conference but are not members of the United Nations.

60 Witness the rule of reciprocity in, e.g., Article 36(2) of the Statute of the International Court of Justice, and the strictness with which that rule is applied by the Court: Anglo-Iranian Oil Co. (Jurisdiction), 1952 ICJ Rep. 93, 103; Norwegian Loans, 1957 ICJ Rep. 9, 23-24.

61 In the Eastern Carelia case the Permanent Court of International Justice declared: “It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or arbitration, or to any other kind of pacific settlement.” The dispute involved Article 17 of the Covenant of the League of Nations, concerning disputes between a member of the League (in casu Finland) and a state that was not a member (in casu the Soviet Union). “The submission, therefore, of a dispute between [states that are not members of the League] and a Member of the League for solution according to the methods provided for in the Covenant could take place only by virtue of their consent.” 1923 PCIJ, ser. B, No. 5, at 27 ff.

62 Multilateral Treaties, supra note 2, at 599.

63 Id. at 601. (One wonders what the effect of the statement concerning Articles 53 and 64 can possibly be, considering the nature of rules of jus cogens!)

64 At the end of his study, La Conférence de Vienne sur le droit des traites. Une vue d’ensemble, 15 Annuaire Français Droit Int’l 24-53 (1969), S. E. Nahlik asks what the meaning of the Convention can be for states that do not become parties to it, and for treaties concluded by states that do become parties, but were concluded before the entry into force of the Convention (Article 4). The answers to these two questions, Professor Nahlik says, will be more or less identical. He lists the provisions of the Convention that in his opinion are not applicable in either case, as they neither codify customary law nor are to be considered as “general principles of law recognized by civilized nations.” They are: provisions that fix a term (Article 65) or a majority required for taking a decision (Article 9); that stipulate a particular form (Articles 23 and 67) or modalities of technique rather than substance (Article 79); that set forth the obligatory procedure for the settlement of disputes (Article 65 and the Annex); that choose one particular solution to a problem of the two or more that exist in practice, or at least in the relevant theory (Articles 31-32, Article 62); and finally, that “introduisent des droits ou obligations trop disparates pour qu’elles puissent être considérées comme engendrant des règles obligatoires.” These latter are, in Nahlik’s opinion, ‘especially” (surtout) Articles 37, 41(2), 44, and 60. Id. at 51-52.

65 1969 ICJ Rep. 4.

66 Article 38 reads as follows: “Nothing in Articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.” (Articles 34 to 37 concern “treaties and third States.”)

67 See, e.g., Mann, F., The Law Governing Slate Contracts, and The Proper Law of Contracts Concluded by International Persons , in Studies in International Law 179 and 211 (1973)Google Scholar.

68 See, e.g., clause 28(7) of the deeds of concession between Libya and two American oil companies:

This Concession shall be governed by and interpreted in accordance with the principles of law of Libya common to the principles of international law and in the absence of such common principles then by and in accordance with the general principles of law, including such of those principles as may have been applied by international tribunals.

Quoted in 53 ILR 389, 402-04 (1979), 17 ILM 1, 11 (1978).

69 H. Strebel observed as long ago as 1967:

[The Convention] should expressly provide that both those who are parties to the Convention and those who are not, have the possibility to subject either all or certain treaty relations already in existence retroactively, either from the time they were entered into or beginning at a later date, to the new rules of the law of treaties, and also to do so under certain reservations.

Preliminary Remarks, 27 ZaöRV 408, 409-10 (1967).

70 If states want the Convention to apply retroactively to an existing treaty, the words “Article 4 of that Convention notwithstanding” might be added to the clause, because Article 4 does not contain the phrase “unless the parties otherwise agree.”

71 See M. Nawaz, J. Fried, & O. Schachter, Toward Wider Acceptance of U.N. Treaties (1971).

72 See text following note 15 supra.

73 The latest version of the draft articles, completed up to Article 80 plus Annex, and adopted by the ILC at its 32d session in 1980, is to be found in the ILC’s report on that session, 35 GAOR Supp. (No. 10) at 139-81, UN Doc. A/35/10 (1980). The commentary to Articles 60-80 and the Annex is reproduced at pp. 181-236.