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United Nations. Report of the International Law Commission Covering the Work of Its Fourteenth Session, April 24-June 29, 1962*

Published online by Cambridge University Press:  28 March 2017

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Extract

The International Law Commission, established in pursuance of General Assembly Resolution 174 (II) of 21 November 1947, and in accordance with its Statute annexed thereto, as subsequently amended, held its Fourteenth Session at the European Office of the United Nations, Geneva, from 24 April to 29 June 1962.

Type
Official Documents
Information
American Journal of International Law , Volume 57 , Issue 1 , January 1963 , pp. 190 - 267
Copyright
Copyright © American Society of International Law 1963

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Footnotes

*

U. N. General Assembly, 17th Sess., Official Records, Supp. No. 9 (A/5209). Forreports of the International Law Commission covering its previous sessions, see Supplementsto this JOURNAL, Vol. 44 (1950), pp. 1, 105; Vol. 45 (1951), p. 103; Vol. 47(1953), p. 1; Vol. 48 (1954), p. 1; Vol. 49(1955), p. 1; and Official Documents, Vol.50 (1956), p. 190; Vol. 51 (1957), p. 154; Vol. 52 (1958), p. 177; Vol. 53 (1959), p.230; Vol. 54 (1960), 229; Vol. 55 (1961), p. 223; Vol. 56 (1962), p. 268.

References

1 Yearbook of the International Law Commission, 1960 (TJ. N. pub., Sales No.: 60.V.1), Vol. I I , p. 180.

2 United Nations Conference on the Law of the Sea, Official Eecords, Vol. I (TJ. N. pub., Sales No.: 58.V.4, Vol. I ) , Doc. A/CONF.13/1.

3 This summary is based upon paragraphs 8-11 in Chapter II of the Commission's report to the General Assembly in 1959 (A/4169): Yearbook of the International Law Commission, 1959 (U. N. pub., Sales No.: 59.V.1), Vol. II , pp. 88–89.

4 Ibid., 1950 (U. N. pub., Sales No.: 57.V.3), Vol.II , p. 223.

5 Ibid., p. 196.

6 Ibid., 1951 (U. N. pub., Sales No.: 57.V.6), Vol. II, pp. 1 and 70.

7 I.C.J. Reports 1951, p. 15.

8 See par. 23 below.

9 Yearbook of the International Law Commission, 1951 (U. N. pub., Sales No.: 57.V.6), Vol. I, p. 136.

10 Ibid., 1952 (U. N. pub., Sales No.: 58.V.5), Vol. II, p. 50.

11 Ibid., 1956 (U. N. pub., Sales No.: 56.V.3), Vol. I I , p. 104.

12 Ibid., 1957 (XI. N. pub., Sales No.: 57.V.5), Vol. II, p. 16.

13 bid., 1958 (IT. N. pub., Sales No.: 58.V.1), Vol. II, p. 20.

14 lbid., 1959 (U. N. pub., Sales No.: 59.V.1), Vol. I I , p. 37.

15 Ibid., 1960 (U. N. pub., Sales No.: 60.V.1), Vol. II, p. 69.

16 480th–496th, 500th–504th and 519–522nd meetings.

17 Chapter II of the Commission's report for 1959 contains Articles 1–10 and 14–17 of a proposed chapter of a comprehensive code on the law of treaties.

18 Yearbook of the International Law Commission, 1956 (IT. N. pub., Sales No.:56.V.3), Vol. II, p. 107.

19 Official Kecords of the General Assembly, 16th Seas., Supp. No. 9 (A/4843), par. 39.

20 Article 102 of the Charter requires treaties to be registered “ a s soon as possible,” while the regulations adopted by the General Assembly on 14 December 1946 provide that they shall not be registered until they have entered into force; see Article 1, paragraph 2, of the regulations, United Nations Treaty Series, Vol. I , p. xx.

21 Yearbook of the International Law Commission, 1951 (TJ. N. pub., Sales No.:57.V.6), Vol. I, p. 136.

22 Ibid., 1959 (U. N. pub., Sales No.: 59.V.I), Vol. II, pp. 89 and 96.

23 See first report by Sir Hersch Lauterpaoht, Yearbook of the International Law Commission, 1953 (U. N. pub., Sales No.: 59.V.4), Vol. II, pp. 101–106.

24 See on this subject the commentaries to Sir Gerald Fitzmaurice's second report (Ibid., 1957 (U. N. pub., Sales No.: 57.V.5), Vol. II, p. 16, pars. 115, 120, 125–128 and 165–168); his third report (Ibid., 1958 (U. N. pub., Sales No.: 58.V.1), Vol. II, p. 20, pars. 90–93).

25 In his article “The Names and Scope of Treaties” (American Journal of International Law, 51 (1957), No. 3, p. 574), Mr.Myers, Denys P. considers no less than thirty-eight different appellations; see also the list given in Sir Hersch Lauterpacht's first report (Yearbook 1953, Vol.II, p. 101), paragraph 1 of the commentary to his Article 2. Article 1 of the General Assembly regulation concerning registration speaks of “every treaty or international agreement whatever its form and descriptive name.”Google Scholar

26 Lord McNair, Law of Treaties (1961), p. 22; Rousseau, Principes genSraux du droit international public, p. 132 et seq. See also the opinion of Louis Renault as long ago as 1869: “ . . . . every agreement arrived at between . . . . States, in whatever way it is recorded (treaty, convention, protocol, mutual declaration, exchange of unilateral declaration).” (translation) Introduction du droit international, pp. 33–34.

27 As to this point and the general question of the capacity of subjects of international law to enter into treaties, see further the commentary to Article 3.

28 For the reasons given by him in the summary records of the 658th and 666th meetings, Mr. Briggs does not accept the provisions of paragraph 2 of Article 3.

29 I.C.J. Reports 1949, p. 182.

30 P.C.I.J., Series A/B, 53, p. 71.

31 Cf. General Assembly Eesolution 479 (V) of 12 December 1950, "Eules for the calling of non–governmental conferences by the Economic and Social Council,"

32 See Yearbook of the International Law Commission, 1950 (TJ. N. pub., Sales No.: 57.V.3), Vol. I I , pp. 233–234.

33 For the reasons given by him in the summary records of the 648th (pars. 10–22) and 667th meetings, Mr. Briggs does not accept the provisions of Article 8.

34 Article 14 of the Convention on Treaties, adopted at Havana on 18 February 1928, provides as follows: “The present Convention shall be ratified by the signatory States and shall remain open for signature and for ratification by the States represented at the Conference and which have not been able to sign i t . ” This Convention, together with seven further Conventions adopted at the Sixth Conference of American States held at Havana, merely states that the Convention shall remain open for. signature and ratification, without specifying any time–limit.

35 Today, when a telegraphic authority, pending the arriving of written full powers, would usually be accepted (see Article 4 above, and the commentary thereto), the need for recourse to initialling on this ground ought only to arise infrequently.

36 See first report of Sir Hersch Lauterpacht, Yearbook of the International Law Commission, 1953 (V. N. pub., Sales No.: 59.V.4), Vol. I I , pp. 108–112. See also first report of Sir Gerald Fitzmaurice, Ibid., 1956 (U. N. pub., Sales No.: 56.V.3), Vol. I I, pp. 112–113 and 121–122.

37 See, for example, Crandall, Treaties, Their Making and Enforcement, par. 3; Fauchille, Traite de droit international public, Tome I, part III, p. 317; Oppenheim, International Law, Vol. I, par. 512; Harvard Besearch Draft, A.J.I.L., Vol. 29, Special Supp., p. 756.

38 See reports of SirLauterpacht,, Hersch Yearbook of the International Law Commission, 1953 (U. N. pub., Sales No.: 59.V.4), Vol. II, p. 112; and Ibid., 1954 (Sales No.: 59.V.7), Vol. II, p. 127; and first report of Sir Gerald Fitzmaurice, Ibid., 1956(U. N. pub., Sales No.: 56.V.3), Vol. II, p. 123.Google Scholar

39 See Harvard Research Draft, p. 822; SirFitzmaurice's, Gerald first report on the law of treaties, Yearbook of the International Law Commission, 1956, Vol. II, pp. 125- 126, and Professor Brierly's second report, Ibid., 1951, Vol. II, p. 73,Google Scholar

40 See Lauterpacht, H. Sir Ibid., 1953, Vol. II , p. 120.

41 Official Journal of the League of Nations, Eighth Ordinary Session, p. 141.

42 Summary of the Practice of the Secretary–General as Depositary of Multilateral Agreements (ST/LEG/7), par. 48.

43 For examples, see Handbook of Final Clauses (ST/LEG/6, pp. 6–17).

44 The Handbook of Final Clauses (ST/LEG/6, p. 18) even gives an example of the formula “signature subject to approval followed by acceptance.”

45 I.C.J. Keports 1956, p. 170.

46 P.C.I.J. Series A, No. 7, p. 30.

47 See also McNair, Law of Treaties (1961), pp. 199–205; Fauchille, Traitg de droit international public (1926), Tome I, part III, p. 320; Bin Cheng, General Principles of Law, pp. 109–111; Megalidis v. Turkey, (1927–1928) Annual Digest of International Law Cases, Case No. 272.

48 For the reasons given by him in the summary records of the 637th, 651st, 652nd, 656th and 667th meetings, Mr. Briggs does not accept the provisions of Article 20.

49 Notably in 1951 in connexion with reservations to the Genocide Convention and in 1959 concerning the Indian “reservation” to the I.M.C.O. Convention.

50 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, p. 15.

51 Ibid., p. 24.

52 Official Eecords of the General Assembly, 6th Sess., Supp. No. 9 (A/1858), par. 16.

53 Ibid., pars. 12–34.

54 Summary of the Practice of the Secretary–General as Depositary of Multilateral Agreements (ST/LEG/7, par. 80).

55 Official Kecords of the General Assembly, 6th Sess., Supp. No. 9 (A/1858), par. 22.

56 E.g., International Convention to Facilitate the Importation of Commercial Samples and Advertising Material, 1952 (90 days) ; and International Convention for the Suppression of Counterfeiting Currency, 1929 (6 months).

57 E.g., Conventions on the Declaration of Death of Missing Persons, 1950, and on the Nationality of Married Women,(both 90 days).

58 Final Act of the Fourth Meeting of the Inter–American Council of Jurists, p. 29.

59 Official Eecords of the General Assembly, 14th Sess., Annexes, Agenda Item 65, Doc. A/4235.

60 Hackworth's Digest of International Law, Vol. 5, pp. 93–101.

61 See, for example, the Commercial Treaty of 1938 between the United States and Norway and the Naturalisation Convention of 1907 between the United States and Peru, in Hackworth, op. cit., pp. 93 and 96.

62 Article 2 reads: “ When a treaty or international agreement has been registered with the Secretariat, a certified statement regarding any subsequent action which effects a change in the parties thereto, or the terms, scope or application thereof, shall also be registered with the Secretariat.”

63 See pp. 8–10, 12, 19–20, 39 (footnote), and Annexes 1 and 2.

64 Official Records of the General Assembly, 16th Sess., Annexes, Agenda Item 70, Docs. A/4796 and Add.1–8.

65 Ibid., Doc. A/C.6/L.491.

66 Ibid., 16th Sess., Supp. No. 9 (A/4843), pars. 40 and 41.

67 Ibid., par. 15.

68 Ibid., par. 16.

1 Adopted by General Assembly Eesolution 97 (I) of 14 December 1946 and amended by General Assembly Eesolution 482 (V) of 12 December 1950.

* Not printed here.