1 See U.N. Docs. A/CN.4/149 & Add. 1, ‘ ‘ Succession of States in relation to membership in U.N.,'’ and A/CN.4/150, ‘ ‘ Succession of States in relation to general multilateral treaties of which the Secretary-General is the depositary,'’ in 1962 I.L.C. Yearbook, Vol. II ; Bardonnet, “Létat des ratifications des Conventions de la Haye de 1899 et 1907,“ 7 Annuaire Français 726 (1961); Wolf, “Les Conventions du Travail et la Succession d'Etats,” ibid. 742; Bonga, “Situation dans 1'ITnion de Berne des pays devenus réicemment indépendants,” Le Droit d'Auteur 320 (1960); Mankiewicz, “Air Law Conventions and the New States,” 29 Journal of Air Law and Commerce 52 (1963); and Aufricht, “State Succession under the Law and Practice of IMF,” 11 Int. and Comp. Law Q. 154 (1962). The effective date of the information in the present paper is June 30, 1964.

2 For the text see GATT, Basic Instruments and Selected Documents (here in after cited as B.I.S.D.), Vol. I l l (1958). Pending the establishment of I.T.O., the Agreement was applied provisionally under the Protocol of Provisional Application of Oct. 30, 1947, which entered into force on Jan. 1, 1948. See the Protocol in 1 B.I.S.D. (1952). It may be added that all protocols of accession, as well as declarations of provisional accession, have contained a similar qualification providing, at least initially, only for “provisional application.''

3 As the Agreement on the Organization for Trade Cooperation drawn up by the Congrating parties in 1955 has not entered into force, GATT still lacks a permanent organizational framework. Gatt, nevertheless, is virtually in a position of a specialized agency in relation to U.N.; it has working relations on the basis of the draft agreement between U.N. and abortive I.T.O., it also participates as an observer in A.C.C. (Administrative Committee on Coordination) and nominates the Chairman of ICCICA (Interim Coordinating Committee for International Commodity Arrangements of U.N.). For the status of GATT see U.N., U.N. Conf. on Trade and Development—The Developing Countries in Gatt: E/CONF.46/36 (March, 1964), pp. 5-12; and Muhammad, The Legal Framework of World Trade 50-72 (1958).

4 A secretariat under the direction of the Executive Secretary was originally set up for ICITO (Interim Commission of the International Trade Organization), but since the establishment of GATT in 1948 the secretariat has been serving GATT. The annual budget of the secretariat is financed by contributions from member governments of Gatt and governments associated with it, and not by the “funds provided by the United Nations” as was originally planned. See Resolution establishing ICITO in U.N. Doc. E/CONF.2/78, pp. 71-72.

5 Each member is entitled to one vote, and a simple majority of members constitutes a quorum. In addition to this representative body and the Secretariat, GATT has other organs, e.g., Periodic Tariff Conferences, the Council of Representatives (which replaced the Intersessional Committee in 1960) and the Committee on Balance of Payments Restrictions. See GATT, The Activities of GATT 1961-62.

6 By the end of the 21st Session held in the spring of 1964, the Contracting parties had adopted 88 subsidiary instruments. See U.N., Status of Multilateral Conventions: ST/LEG/3, Rev. 1 (1964), Ch. X; GATT, Status of Multilateral Protocols: PROT/1 (1963) ; and B.I.S.D., 12th Supp. (1964).

7 See 55 U.N. Treaty Series 194, and 286-288; and GATT Doc. G/5, “Territorial Application of the General Agreement” (March, 1952).

8 This clause was originally Art. XXVI, par. 4, section proviso (55 U.N. Treaty Series 274) in almost identical wording, which became par. 4(e) pursuant to an amending protocol of Aug. 13, 1949 (62 U.N. Treaty Series 114), and then par. 5(c) pursuant to the Protocol Amending the Preamble and Parts II and III of the General Agreement which entered into force on Oct. 7,1957 (278 U.N. Treaty Series 204).

9 See U.N., Second Sess. of the Preparatory Committee of the U.N. Conf. on Trade and Employment: Docs. E/PC/T/198 & 205, and E/PC/T/TAC/PV/13, 24, 25, & 28 (1947).

10 The term ‘’ CONTRACTING PARTIES ‘ ‘ here stands for members of Gatt. Acceptance of the terms of accession by a two-thirds majority of members is required under the same article.

11 U.N., U.N. Conf. on Trade and Development—The Developing Countries in GATT: E/CONF.46/36 (March, 1964), pp. 13-21.

12 See, for example, Declaration of the Contracting parties made on May 9, 1949, whereby the application of the General Agreement and the tariff schedule negotiated by the U.K. on behalf of Palestine was terminated. (2 B.I.S.D. 14-15.)

13 As will presently be shown, Israel is the only new state so far that joined Gatt through this accession procedure. Cambodia and Tunisia have been in the process of accession in the past several years.

14 It is later noted in an official publication prepared by the GATT Secretariat that “Indonesia, having acquired independent status, became a contracting party in its own right on 24 February 1950.” B.I.S.D., 1st Supp. (1953), p. 6.

15 2 B.I.S.D. 15-16.

16 The Federation was established by the Act of the British Parliament dated March 24, 1953, which became effective on Aug. 1, 1953. Southern Rhodesia was an original signatory to the Protocol of the Provisional Application of the General Agreement.

17 B.I.S.D., 3rd Supp. (1955), pp. 29-30.

18 B.I.S.D., 6th Supp. (1958), p. 9.

19 Ibid. 9-10.

20 It is to be noted that in the official publications of GATT a declaration on this matter is usually described either as “accession” or “admission” of a new state as a contracting party. In order to avoid confusion with the accession procedure under Art. XXXIII, it would be advisable not to use the term “accession” here. On account of the different juridical function of such declaration from that of the decisions on admission taken by various other international organizations, the use of the term “admission” underseems also improper. An alternative description may be, despite some inelegancy,'’ entry of a new state into Gatt,” or “succession of a new state to membership in GATT.“

21 B.I.S.D., 9th Supp. (1961), pp. 13-14.

22 B.I.S.D., 10th Supp. (1962), pp. 11-12.

23 lbid.14-15.

24 B.I.S.D., 11th Supp. (1963), pp. 44-45.

25 Ibid. 45-46.

26 It was soon before independence that the governments of Nigeria, Tanganyika and Uganda sent letters to the Executive Secretary of GATT expressing their wish to be deemed contracting parties. The United Kingdom gave sponsorship at the same time. See notes 21, 23 and 25 above.

27 See Recommendations of Nov. 1, 1957, and Nov. 22, 1957, in B.I.S.D., 6th Supp. (1958), pp. 10-12. Although these Recommendations and subsequent ones on the same subject do not mention de facto application of subsidiary instruments previously applied to the territories of new states, it must be understood that such application is implied by the “de facto application of the General Agreement“; because, functionally speaking, the subsidiary instruments form an integral part of the Agreement among members accepting them, though they are formally separate instruments.

28 B.I.S.D., 9th Supp. (1961), pp. 16-17.

29 See Working paper submitted by Bartoš to the Sub-Committee on Succession of States and Governments of the International Law Commission, in U.N. Doc. A/CN.4/160 (June 7, 1963), Appendix, pp. 10-24.

30 See B.I.S.D., 6th Supp. (1958), pp. 10-11, and 8th Supp. (1960), p. 8. As shown elsewhere, since Laos and Guinea did not wish to become members of GATT before the expiry date of de facto application, such application lapsed. As for Cambodia and Tunisia, they decided to accede under Art. XXXIII and therefore de facto application has been replaced by special arrangements in preparation for their accession.

31 B.I.S.D., 10th Supp. (1962), pp. 17-18.

32 B.I.S.D., 11th Supp. (1963), pp. 53-54.

33 See, for example, GATT, L/2067, “Certification by the Executive Secretary” (Sept. 30, 1963), which is quoted later in this paper.

34 Impropriety of describing such declaration as “admission” or “accession” is pointed out in note 20 above.

35 See B.I.S.D., 12th Supp. (1964), p. 34.

36 See U.N., Status of Multilateral Conventions: ST/LEG/3 Eev. 1 (1964), Ch. X; Gatt, Status of Multilateral Protocols: PBOT/1 (1963); and B.I.S.D., 12th Supp. (1964), pp. 16 ff. It may be recalled that, formally speaking, the General Agreement itself is not in force, although it has been applied provisionally under the Protocol of Provisional Application, Protocols of accession and Declarations of provisional accession. See note 2 above.

37 See 1 B.I.S.D. (1952), Appendices, pp. 127-135. Indonesia's declaration, dated Nov. 21, 1950, was received by the U.N. Secretary General on Nov. 24, 1950.

38 See Annex A of U.N. Treaty Series, Vols. 280, 281, 377, 405 and 419.

39 See, for example, Declarations of Ghana, Malaya, Nigeria, Sierra Leone, and Tanganyika concerning multilateral protocols Nos. 5, 6, 7, 8, 10, 11, 15 and 16; and Declarations of Nigeria, Sierra Leone, and Tanganyika concerning Nos. 19, 23, 24, 25, 26, 26(a), 28, 29 and 30.

40 A comparative study of the pattern of practice of new states within international organizations where new states are consulted about succession (e.g., U.N., I.L.O., Bern Copyright Union, GATT, Permanent Court of Arbitration, etc.), and that in international organizations where new states are not consulted (e.g., UNESCO, ICAO, ITU, WHO, etc.), has led the present writer to this finding. A discussion of this interesting tendency, however, is clearly beyond the scope of this paper.

41 See TJ.N. Doe. A/CN.4/150, op. cit., pp. 124-125.

42 TJ.N., Status of Multilateral Conventions: ST/LEG/3, Rev. 1, lists these 28 instruments but does not periodically present their current status in table form. Therefore, the only way to find their status is to go through relevant sections of the TJ.N. Treaty Series and the monthly publication, Statement of Treaties and International Agreements Registered or Filed and Recorded with the Secretariat, which is naturally cumbersome. GATT, PROT/1 covers only those instruments of which the Executive Secretary acts as depositary.

43 Cf. the method whereby the U.N. Secretary General assumed the depositary functions in respect of the League of Nations treaties. See U.N. Secretariat, Summary of the Practice of the Secretary-General as Depositary of Multilateral Agreements: ST/LEG/7 (1959), pp. 65-67;

44 See Recommendation of Nov. 1, 1957, in B.I.S.D., 6th Supp., pp. 11-12; Recommendation of Dec. 9, 1961, loo. cit; and GATT, Spec (63) 1, “Procedures for Accession to GATT and the Advantages for Less-Developed Countries: Note by the Executive Secretary” (January, 1963).

45 GATT, L/2067, “Admission of Mauritania as a Contracting Party” (Sept. 30, 1963).

46 See Spec (63) 1, loc. tit., and GATT, INT (62) 142, “Accession by Newly-Independent African States to the GATT” (Nov. 3, 1962).

47 This choice includes immediate or subsequent accession to the GATT instruments under Art. XXXIII. Accession, as already pointed out, unavoidably entails lapse of the application of the GATT instruments, and hence is not a method of succession. For the case of Israel see note 12 above. As for Cambodia and Tunisia, it appears that the application of the GATT instruments lapsed when they opted for accession and thereby terminated de facto application. Only a part of the General Agreement resumed its application to Tunisia when the Declaration on the Provisional Accession of Tunisia, dated Nov. 12, 1959, entered into force on May 21, 1960, that is, 30 days after the acceptance of the said Declaration by Tunisia and 8 members of GATT, and initially only among those 9 states accepting it (see 362 U.N. Treaty Series 328-330). Since the Protocol of Accession of Cambodia, dated April 6, 1962, has not entered into force, the official publication of GATT does not list Cambodia as a state to which the General Agreement is applied. (See B.I.S.D., 12th Supp., p. 5.)

48 See B.I.S.D., 6th Supp., pp. 10-11; and note 47 above.

49 See 2 B.I.S.D. 14-15.

50 The Government of the Federation did not send any declaration to the Secretary General when the Federation was formed in 1953 and succeeded to Southern Rhodesia's membership. Soon before the dissolution of the Federation of Rhodesia and Nyasaland, the Governments of the U.K. and the Federation jointly declared that Southern Rhodesia would resume its former status as a contracting party and that the U.K. would resume responsibility for the application of the General Agreement in Northern Rhodesia and Nyasaland. See GATT docs. L/2110 (Dec. 23, 1963) and L/2167 (March 4, 1964).

51 See, for example, the declaration of Malaya received by the Secretary General on Oct. 24, 1957, in 280 U.N. Treaty Series, Annex A, pp. 350-353. For others, see note 38.

52 They were invited to the meetings of the CONTRACTING PARTIES and a majority of them actually sent delegates to the meetings. See B.I.S.D., 9th through 12th Supps.

53 See ibid., sections on the annual budget.

54 See Codding, International Telecommunication Union 208 ff. and 275 ff. (1952); Laves and Thomson, UNESCO—Purpose, Progress and Prospect (1957); Stoessinger, “Financing the United Nations,” Int. Conciliation, No. 535 (1961), p. 60; IAEA, 4th General Conference: Summary Records (1960).

55 See 55 U.N. Treaty Series 194, 286-288, 304; and GATT Doc. G/5, “Territorial Application of the General Agreement” (March, 1952).

56 Under this paragraph the General Agreement, or alternatively its Art. II (which embodies the schedules of tariff concessions), may not apply between any member and any other member of GATT if they have not entered into tariff negotiations with each other and if either of the members, at the time of accession of either of them, does not consent to such application.

57 See GATT, L/1482, “Working Party on Art. XXXV Review“; L/1545, “Report of the Working Party on Art. XXXV Review“; The Activities of GATT: 1961/62; and Proceedings of the Meeting of Ministers: Nov. 27-30, 1961.

58 Malaya “disinvoked” Art. XXXV, par. 1, in August, 1960; and Ghana in March, 1962.

59 So far as the provisions of Arts. XXVI and XXXV read, it might appear permissible for these new states to inherit the same mode of application of the General Agreement, including in this particular case complete non-application thereof in relation to Japan.

60 See GATT, L/1466, “Origins of Art. XXXV and Factual Account of its Application: Report by the Executive Secretary“; and TJ.N. Conf. on Trade and Development, loc. cit.

61 It may be noted in passing that some late comers, e.g., Spain and Portugal, invoked Art. XXXV against Japan in spite of the said original intention; and that, apart from Art. XXXV, the CONTEAOTINO PARTIES recognized the inheritance by Ghana and Malaya of the United Kingdom's election of Annex J relating to exceptions to the non-discrimination rule. (See B.I.S.D., 6th Supp., pp. 9-10.) For further discussion of inheritance of the invocation of Art. XXXV, see Kunugi, “Pursuit of National Interest through International Organizations” (in Japanese), Sekai Keizai, No. 96 (August, 1964), pp. 17-24.

62 See a collection of devolution clauses in Annex of U.N. Doc. A/ON.4/150. Upon attaining independence, Tanganyika acknowledged temporary devolution of treaty rights and obligations for the period of 2 years on the basis of reciprocity, by way of a declaration addressed to the U.N. Secretary General. Uganda and Kenya also made similar declarations. Inasmuch as the General Agreement was previously made applicable only to British Somaliland, the existence of a devolution agreement between Somalia and Italy is irrelevant here; and for this reason Somalia is not marked with an asterisk. See Cotran, “Legal Problems Arising from the Formation of the Somali Republic,” 12 Int. and Comp. Law Q. 1010 (July, 1963).

63 17 states in group (c) of Table I and Guinea. Inasmuch as the exact time of inception of de facto application (which was devised by the CONTEAOTINO PARTIES in 1957) in respect of Cambodia, Laos and Tunisia is not clear, these 3 states are excluded from consideration here. 5 states, which are still in the reflection period, are of course excluded.

64 The lengths of reflection periods were computed by simply subtracting the independence date from the certification date, and in the case of Guinea from the expiry date, which are shown in Table I. The average is an arithmetic mean, i.e., £ = — and n the mean deviation = —’ ‘- where n =

65 It appears that the constituent instrument of the International Tin Council (i.e., International Tin Agreement of June 24, 1960, in 403 TJ.N. Treaty Series 3) provides for automatic succession to membership. Art. 21, par. 6, provides: “A country or territory, the separate participation of which has been declared under Article 3 or paragraph 2 of this Article by any Contracting Government, shall, when it becomes an independent State, be deemed to be a Contracting Government and the provisions of this Agreement shall apply to the Government of such State as if it were an original Contracting Government.“ It is to be noted in passing that the propriety of the last phrase of the above article ‘ ‘ as if it were … . “ is open to question.

66 There have been a number of instances where the depositaries or certain organs of international organizations, e.g., UPU, Bern Copyright Union, Permanent Court of Arbitration, and International Bed Cross Conference, took a view to the effect that former dependencies continued to be members or succeeded to their predecessors’ membership automatically upon independence. Although the practice lacks uniformity, the final outcome of interaction between the above actors and the new states concerned tends to be effected, in most instances, by agreement of the new states to the former's view. (Sources of information on the basis of which this observation is advanced are too numerous to be noted here exhaustively. The main sources, however, are: Bureau Int. de 1'Union Postale Universelle, Rapport sur les Activités de 1'Union , Circulaire, and Documents du Congrés; Bureau de 1'Union int. pour la protection des oeuvres littéraires et artistiques, Le Droit d'Auteur, Répertoire des documents officiels (1948); Conseil Administratif de la Cour Permanente d ‘Arbitrage, Bapport pour l'année… .; Comitée' int. de la Croix-Bouge, Circulaire, and Bevue int. de la Croix-Bouge.)

67 Southern Rhodesia would present the only exception if and when it attains full independence, because its personality has been recognized in the GATT framework.

68 Application for membership submitted by former dependent members or former associate members, wherever applicable, have been approved by the voting through correspondence of ITU and WMO members and by the decisions of the general representative organs of UNESCO, FAO and WHO. See ITU Bureau, Notifications: Nos. 581, 633, 642, 646, 667, 780, 823, 857 and 890; WHO, Official Records of WHO: Nos. 13, 21, 28, 35, 71, 102, 110 and 123; UNESCO, Record of General Conf.: 10th Sess. (1958), p. 11; WMO, Annual Report of WMO (1954), p. 27; ibid. (1955), pp. 30-32; 2nd Congress of WMO: Abridged Report & Res. (1955), p. 18; FAO, Reports of FAO Conf.: 10th Sess., 1959, pp. 266-270; and 11th Sess., 1961, pp. 84-85. Incidentally, a state may become a member of FAO only through admission procedure, irrespective of whether it is a U.N. Member. It is noteworthy that the FAO Conference once adopted a method whereby a smooth transition from the status of associate membership to that of full membership was effected. With respect to 5 dependencies the Conference decided to “grant to these nations, without delay and as a transitional measure, the status of associate membership,“ and declared at the same time that they “are admitted as members of FAO as from the date on which trusteeship ends in the case of Cameroon, Somalia and Togo, and as from the date on which they become independent in the case of Cyprus and Nigeria.'' See 10th Sess., loo. cit.

69 Artificial distinction is sometimes drawn between “law-making” or “legislative“ treaties and “administrative” or “personal” treaties of contractual character; and the constituent instruments are alleged to fall in the latter category. It is submitted that such distinction is often illusory and, if not, that almost all the constituent instruments of the functional organizations whose membership is approaching universality are legislative rather than contractual both in nature and purpose. Cf. Jenks, “State Succession in Respect of Law-Making Treaties,” 29 Brit. Yr. Bk. Int. Law 133 ff. (1952); and O'Connell, The Law of State Succession 64 ff. (1956).

70 For example, the administrative and/or technical regulations (which have a status of multilateral agreements) embodied in or annexed to the constituent instruments of UPTJ, ITU, ICAO, the sanitary regulations of WHO and meteorological regulations of WMO seem to have been applied continuously—probably out of sheer necessity—by the new states during the period in which those constituent instruments were not in force in their territories. A somewhat different situation seems to exist concerning multilateral conventions acceptance of which requires domestic enactment. Such enactment made by a predecessor tends to remain in force in terms of municipal law of the new state, even though the binding force of the conventions themselves is often interrupted in its territory. The above observations are yet to be verified by a detailed study of the practice of individual new states.

71 To cite one example, the reciprocal relations for the protection of copyright which previously existed between the territories of Ivory Coast, Gabon, Senegal and Upper “Volta on the one hand, and 19 contracting parties to the Borne text of the Bern Copyright Convention which have not acceded to the Brussels text on the other, have lapsed and could in no way be revived. Had these new states succeeded by way of a declaration to the predecessors’ undertakings under the Brussels text, the above reciprocal relations should have been unaffected. See Le Droit d'Auteur, 1963, pp. 156 and 182.

72 See Wolf, loo. cit.

73 The only exception is provided for in Art. 1, par. 5, of the Constitution, which reads in part: “When a Member has ratified any international labor Convention, such with drawal [from the Organization] shall not affect the continued validity for the period provided for in the Convention… . “

74 See the discussions had and decisions taken concerning the admission of Pakistan to membership in U.N. in Doc. A/CN.4/149, loo. cit., and compare a different decision taken on the same case by the ITU Conference in ITU, Documents of ITU Conf. at Atlantic City (1947), pp. 216-217. See also O'Connell, op. cit. 41-43 and 64-69; Marek, Identity and Continuity of States in Public International Law 9 ff. and 45 ff. (1954); Jones, “State Succession in the Matter of Treaties,” 24 Brit. Tr. Bk. Int. Law 360-375 (1947), and especially p. 73, where Jones quotes Hall's statement: “ … the fact of the personality of the State is the key to the answer.'' Although a general discussion of succession to membership is beyond the scope of this paper, the present writer submits the following two hypotheses derived from his empirical survey: (a) The well-publicized U.N. decisions on the admission of Pakistan have exerted undue influence upon the subsequent decisions of various international organizations, even though—apart from the propriety of U.N. decisions on the said case—Pakistan's case before the U.N. is not typical of subsequent instances and, furthermore, a different principle should have guided other organizations, whose purpose and functions are different from those of the U.N.; and (b) Insofar as a number of constituent instruments of the functional organizations are legislative rather than contractual both in purpose and function, the personal identity should not be made a requisite of succession to membership in those functional organizations; and therefore Dr. Jenks’ proposition that new states continue to be bound by the legislative instruments should apply with equal force to succession to membership in many an organization. (Cf. Jenks, loo. cit.)

75 Pp. 278-279 above.

76 See Doc. A/CN. 4/160, loo. cit.

77 See note 66 above, and Wolf, loc.cit.

78 See Ch. II of Doe. A/CN. 4/150, loc cit.

79 O'Connell, “Independence and Succession to Treaties,” 38 Brit. Yr. Bk. Int. Law 84-180, and particularly 96 ff.