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The Grounds of Invalidity and Termination of Treaties

Published online by Cambridge University Press:  28 March 2017

S. E. Nahlik
S. E. Nahlik*
Affiliation:
International Law, University of Cracow
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Extract

Many interesting articles have already been published on the preparatory work for the United Nations Conference on the Law of Treaties, on the Conference itself, and, of course, on the Convention signed at Vienna on May 23, 1969. The American Journal of International Law has printed a number of them, among the most important being the excellent study by Ambassador Richard D. Kearney and Mr. Robert E. Dalton. The authors rightly referred to the Vienna Convention as the “Treaty on Treaties,” its object being to codify all, or nearly all, legal problems that may arise in connection with treaties, and the very definition of a “treaty,” as introduced by the convention, being much broader in scope than the traditional meaning of this term.

Type
Research Article
Information
American Journal of International Law , Volume 65 , Issue 5 , October 1971 , pp. 736 - 756
Copyright
Copyright © American Society of International Law 1971

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References

1 64 A.J.I.L. 495 ff. (1970).

2 Art. 18 of the Covenant.

3 Art. 102 of the Charter.

4 Art. 2, par. 1, subpar. (a) of the Vienna Convention on the Law of Treaties, signed May 23, 1969. U.N. Doc. A/Conf.39/27 (all quotations of articles of the convention herein are taken from this document); reprinted in 63 A.J.I.L. 875 (1969).

5 Art. 2, par. 2, of the Vienna Convention.

6 In the Report of the International Law Commission (further referred to as “I.L.C.“) on Its Eighteenth Session, May 4-July 19, 1966, U.N. Doc. A/6309/Rev. I, Ch. II.

7 They are Arts. 39-68. In the final text of the convention, as signed on May 23, 1969, Part V consists of thirty-one articles (42-72), i.e.it contains 36.47 percent of the total of eighty-five articles of the convention.

8 See, especially, U.N. Conference on the Law of Treaties, First Session, Vienna March 26-May 24, 1968, Official Records, 39th-83rd meetings of the Committee of the Whole; also Second Session, Vienna April 9-May 22, 1969, Official Records, 16th-23rd plenary meetings, passim.

9 This was partly achieved by the former Special Rapporteur of the I.L.C. on the same subject, Sir Gerald Fitzmaurice; see his reports in the 1957 I.L.C. Yearbook (II) 18 ff., as well as 1958 ibid.(II) 20 ff. The very titles of the respective parts of his draft code are: “Temporary validityof treaties” and “Essential validityof treaties.“

10 Art. 28 of the Vienna Convention (Art. 23 of the I.L.C. draft).

11 Another article belonging to this section (27) was only added during the Vienna Conference itself.

12 Art. 42 of the convention (Art. 39 of the I.L.C. draft).

13 Art. 46 of the convention (Art. 43 of the I.L.C. draft).

14 Art. 47 of the convention (Art. 44 of the I.L.C. draft).

15 Sir Humphrey Waldock's Second Report on the Law of Treaties, 1963 I.L.C. Yearbook (II) 36 ff.

16 In the meaning of Art. 38, par. 1, subpar. (c) of the Statute of the International Court of Justice.

17 Art. 48 of the convention (Art. 45 of the I.L.C. draft).

18 Art. 79 of the convention (Art. 74 of the I.L.C. draft).

19 Art. 49 of the convention (Art. 46 of the I.L.C. draft).

20 Art. 51 of the convention (Art. 48 of the I.L.C. draft).

21 Art. 50 of the convention (Art. 47 of the I.L.C. draft).

22 The discussion which had taken place in the I.L.C. was summarized in its report on the 18th Session (1966), Ch. II, commentary to Art. 47. For the discussion at the Vienna Conference, see U.N. Conference on the Law of Treaties, Official Records, 45th-47th and 70th meetings of the Committee of the Whole, and 18di plenary meeting.

23 Art. 52 of the convention (Art. 49 of the I.L.C. draft).This article was discussed at the 48th-51st and 57th meetings of the Committee of the Whole, and at the 19th plenary meeting.

24 Art. 2, par. 4 of the U.N. Charter.

25 See amendment by nineteen states, U.N. Doc. A/Conf.39/C.I/L.67/Rev.I/ Corr.I.

26 Declaration on the prohibition of military, political and economic coercion in the conclusion of treaties, annexed to the Final Act of the Vienna Conference on the Law of Treaties. U.N. Doc. A/Conf.39/26.

27 Art. 53 of the convention (Art. 50 of the I.L.C. draft). For discussion, see 52nd- 57th meetings of the Committee of the Whole, and 19th-20th plenary meetings.

28 See, in relation to this problem, Conference on International Law, Lagonissi (Greece), April 3-8, 1966, Papers and Proceedings; The Concept of Jus Cogens in International Law (Carnegie Endowment for International Peace, Geneva, 1967) (for this writer's views, see pp. 97-98 and 109-110).

29 Art. 103 of the U.N. Charter.

30 See, in this respect, Art. 45 of the Vienna Convention (Art. 42 of the I.L.C. draft).

31 Art. 54, subpar. (a) of the convention (Art. 51 of the I.L.C. draft).

32 Art. 54, subpar. (b) of the convention.

33 Art. 59, par. 1 of the convention (Art. 56 of the I.L.C. draft).

34 Part III, Sec. 2 (Application of Treaties), Art. 30 of the Vienna Convention (Art. 26 of the I.L.C. draft).

35 Art. 64 of the convention (Art. 61 of the I.L.C. draft); to emphasize its point, this provision declares that the treaty concerned “becomes void and terminates.” But the legal consequences are those of the “termination” only, especially so as another article of the convention (71, par. 2), while saying that the occurrence in question “releases the parties from any obligation further to perform the treaty” (subpar. (a)), specifically adds that it, at the same time, “does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination, provided that…” (subpar. (b)).

36 See, for that matter, U.N. Conference on the Law of Treaties, Official Records, 66th meeting of the Committee of the Whole, as well as 22nd plenary meeting.

37 Art. 61 of the convention (Art. 58 of the I.L.C. draft).

38 Art. 62 of the convention (Art. 59 of the I.L.C. draft). Discussion at the Vienna Conference, see Official Records, 63rd-65th and 81st meetings of the Committee of the Whole, and 22nd plenary meeting.

39 See, e.g.,opinions to this effect by L. Oppenheim-H. Lauterpacht, International Law 938 ff. (8th ed., London, 1955); 1 Anzilotti, Corso di diritto internazionale 376 ff. (4th ed., Padua, 1953); V. M. Shurshalov, Osnovanya deystvitelnosti mejdoonarodnogo dogovora 128 ff. (Moscow, 1957); Ch. Rousseau, Droit international public approfondi 73 ff. (2nd ed., Paris, 1961). According to this last writer, “Introduite de bonne heure dans la doctrine, cette théorie est acceptée aujourd'hui par la purpart des auteurs.“

40 See also titles of Sees. 3 and 5 of this Part, as well as Art. 70 of the convention (Art. 66 of the I.L.C. draft).

41 See Arts. 42 and 43 of the convention.

42 It is then, as a rule, the “withdrawal“; see Arts. 44 (par. 2), 45, 54, 61, 62, 65, 69.

43 Namely, at the meeting of the Drafting Committee on May 7, 1969.

44 Art. 56 of the convention (Art. 53 of the I.L.C. draft).

45 Art. 60 of the convention (Art. 56 of the I.L.C. draft).

46 Arts. 65-68 of the convention and Annex to Art. 66 (Arts. 62-64 of the I.L.C. draft). The procedure prescribed may, in certain cases, comprise no less than three distinct stages: (I) the parties to a treaty endeavor to settle the matter as between themselves in direct correspondence; (2) the parties agree to choose one of the means for pacifically settling international disputes listed in Art. 33 of the U.N. Charter; (3) the parties are under obligation to submit the dispute to conciliation (in the manner provided for in the Annex) or, if the article under dispute is one of the two introducing the notion of jus cogens,to the International Court of Justice. See also below, Section VI of this article.

47 Part VI of the convention, Art. 75 (Art. 70 of the I.L.C. draft).

48 Art. 55 of the convention (Art. 52 of the I.L.C. draft).

49 Art. 63 of the convention (Art. 60 of the I.L.C. draft).

50 Art. 57 of the convention (Art. 54 of the I.L.C. draft).

51 Art. 58 of the convention (Art. 55 of the I.L.C. draft).

52 Art. 61 of the convention.

53 Art. 62 of the convention.

54 Art. 60 of the convention.

55 It results from Art. 1 of the convention.

56 See 1949 I.L.C. Report, Part I, Ch. II, item 2.

57 See 196§ LL.C. Report, Ch. V.A, and Annex (review of the Commission's programme).

58 Art. 73 of the convention (Art. 69 of the I.L.C. draft).

59 See, respectively, Arts. 60 and 75 of the convention.

60 See Polish-Hungarian amendment contained in U.N. Doc. A/Conf.39/C.1/L.279, and (almost identical with it) Swiss amendment contained in Doc, A/Conf.39/C.1/ L.359.

61 See, in this respect, e.g.,Ch. Rousseau (in support of the traditional concept), op. cit.70 ff.; Lord McNair, The Law of Treaties 693 ff. (Oxford, 1961) (previously, by the same author, War and Treaties, Oxford, 1940); A. Curti Gialdino, Gli effetti della guerra sui trattati (Milan, 1959); and many others.

62 U.N. Docs. A/Conf.39/C.1/L.339, 345, 346, 347, 352, and 355.

63 See amendment contained in U.N. Doc. A/Conf.39/L.47/Rev.I

64 Art. 66 of the convention (and Annex).

65 See Art. 65 of the convention (Art. 62 of the I.L.C. draft).

66 1966 I.L.C. Report, pars. 3-6 of the commentary to draft Art. 62.

67 According to 1969-1970 I.C.J. Yearbook 51 ff., forty-six states.

68 Arts. 19-23 of the convention.

69 In the meaning of Art. 19, subpar. (c) of the convention.

70 When, on May 22, 1969, the convention as a whole was put to the vote, one state only (France) voted against it. See U.N. Conference on the Law of Treaties, Official Records, Vol. II, 36th plenary meeting, par. 51.