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Published online by Cambridge University Press: 16 February 2016
There are two aspects to a treaty. On the one hand, it constitutes a procedure, an operation whereby several minds meet and, if necessary, meet again to review, amend or even abolish the commitments contained in the treaty; on the other hand, it describes and establishes rights and duties, defines individual situations, or lays down general rules. In the language of continental jurists a treaty is at the same time a “legal transaction” and a “collection of norms”. Consequently, it is possible to distinguish in the articles of the treaty between those containing provisions pertaining to the mechanism of the legal transaction, which may be termed its “operational rules”, and those containing rules of content, which may also be called—to borrow from the language of private international law—“rules of substantive law”.
1 In his First Report to the International Law Commission on the Law of Treaties, Sir Gerald Fitzmaurice had already distinguished between the “legal transaction” and the “document” of a treaty. [1956] 2 Yrbk. Int'l L. Comm'n 119.
2 We would be lead to believe that every “agreement” or “understanding” has legal effects, no matter what those who signed it may say. To cite only one example among many, after having officially maintained that the Helsinki Declaration was not a treaty, the ten members of the European Economic Community declared “it goes without saying that in signing the Final Act of Helsinki, the States under took to observe its provisions”. (Reply to written question 1120/84 J. officiel des Communautés européennes. C 62/42 of 11 March 1985). Without wishing to discuss this question in all its aspects (cf. the work of the Institute of International Law, especially at its Cambridge session), it is possible that for the purpose of internal law, States adopt a narrower view of the treaty than does international law.
3 These are questions examined by the International Court of Justice in the Ambatielos case (1952) I.C.J. Reports 28, and in the advisory opinion on Interpretation of the Agreement of 25 March 1952 between the WHO and Egypt (1980) I.C.J. Reports 73. Cf. our forthcoming study “Traités et Transactions: Réflexions sur l'identification de certains engagements conventionnels”, in Mélanges R. Ago.
4 E.g., United Nations Secretariat, Collection of Final Clauses (1957 ST/LEG/16); Emerson, J.H., Blix, M.H., The Treaty-Maker's Handbook (Oceana, 1973)Google Scholar.
5 United Nations Conference on the Law of Treaties, First session, Official Records of the First Session, 72nd meeting; [1956] 2 Yrbk. Int'l L. Comm'n 116, Art. 42 and commentary p. 127, § 107. Sir Gerald Fitzmaurice considered application to be as from the time of signature, but did not include the provisions concerning reservations.
6 Loc. cit. 26th meeting, §5 et seq., p. 139; 72nd meeting, §19, p. 426.
7 On the other hand, the case of the successor State which agrees, with the consent of the parties to the treaty, to continue the application of a treaty concluded by the predecessor State in the Territory which is the object of State succession should be considered a temporary one. This is the view of the Report of the International Law Commission to the General Assembly (commentary on Art. 9 of the draft articles on Succession of States in Respect of Treaties) [1974] 2, part I, Yrbk. Int'l L. Comm'n 187.
8 Rosenne, S., “Participation in the Geneva Conventions (1864–1949) and the Additional Protocols of 1977”, in Studies and Essays in International Humanitarian Law and Red Cross Principles in Honour of J. Pictet (Geneva, International Committee of the Red Cross, 1984) 803Google Scholar.
9 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (19 December 1967); Convention on International Liability for Damage caused by Space Objects (19 March 1972); Convention on Registration of Objects Launched into Outer Space (14 January 1975); Agreement Covering the Activities of States on the Moon and Other Celestial Bodies (5 December 1979).
10 The accession of international organizations to general multilateral treaties raises numerous problems which come to light already in connection with the mechanism provided for by the Convention of 21 November 1947 on the Privileges and Immunities of the Specialized Agencies; they appear again in Annex IX of the Convention of 10 December 1982 on the Law of the Sea.
11 The most recent example is clearly that of the Rome Treaties as the Court of Justice of the European Communities has felt obliged to interpret them. By obliging States through the said treaties to give their national courts a power which the latter did not recognize for themselves in every country by virtue of their status, the Rome Treaties not only give the impression of being treaties of judicial organization but of effecting a profound change in certain national constitutional conceptions.
12 A good example is provided by the judicial proceedings undertaken in the United States to have the United States' termination of its Mutual Defence Treaty of 2 December 1954 with the Republic of China (Taiwan) declared illegal. US. SC 13 Dec. 1979; (1980) International Legal Materials 239; (1980) 74 Am. J. Int'l L. 441.
13 This terminology made its appearance—an ephemeral one—in the working documents of the International Law Commission (Art. I §Ic), being adopted in 1962 in the fourteenth session and deleted in 1965 in the seventeenth session.
14 It is not accepted in the case-law that travaux préparatoires can be used against a State which is a party to the treaty but which did not participate in the preparatory works, especially if it could not have known them at the time of its accession. Territorial Jurisdiction of the International Commission of the River Oder, Permanent Court of International Justice, Series A/23 (1929); Arbitration Commission on Property Rights, and Interests in Germany, Vol. III, No. 70, p. 45. See also Güggenheim, P., Traité de Droit international Public (1967) vol. I, p. 258Google Scholar.
15 In its advisory opinion, (1971) I.C.J. Reports, p. 31, §53, the Court declared: “Mindful as it is of the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion…an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation”. In practice the Court prefers present circumstances to original intention.
16 Art. 30, §4 of the Vienna Convention envisages the special case where all the parties to the earlier treaty are not all parties to the later treaty, and provides that case relations between States who are parties to both treaties are governed by the later treaty; relations between a State party to both treaties and a State party to only one of the treaties are governed by the treaty to which both States are parties. The application of this provision, however, is subject to a condition: the overall relations created by these treaties can be reduced to a series of independent bilateral relations. This is not always the case; it depends on the interdependence of the assumed obligations.
17 In its advisory opinion on Namibia, (1971) I.C.J. Reports, p. 56 § 156, the Court based itself upon the idea (cf. the separate opinion of Petren J. at 137) put forward by certain governments, that the organs of the United Nations had become those of the international community as a whole.
