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Reports of the Commission to the General Assembly 187 5. Where an error is discovered in a certified copy of a treaty, the depositary shall execute a proces-verbal specifying the rectification and communicate a copy to the contracting States. Article 75. Registration and publication of treaties Treaties entered into by parties to the present articles shall as soon as possible be registered with the Secretariat of the United Nations. Their registration and publication shall be governed by the regulations adopted by the General Assembly of the United Nations. Draft articles on the law of treaties with commentaries Part I.—Introduction Article I. 3 5 The scope of the present articles The present articles relate to treaties concluded between States. Commentary (1) This provision defining the scope of the present articles as relating to "treaties concluded between States" has to be read in close conjunction not only with article 2(l)(a), which states the meaning with which the term "treaty" is used in the articles, but also with article 3, which contains a general reservation regarding certain other categories of international agreements. The sole but important purpose of this provision is to underline at the outset that all the articles which follow have been formulated with particular reference to treaties concluded between States and are designed for application only to such treaties. (2) Article 1 gives effect to and is the logical consequence of the Commission's decision at its fourteenth session not to include any special provisions dealing with the treaties of international organizations and to confine the draft articles to treaties concluded between States. Treaties concluded by international organizations have many special characteristics; and the Commission considered that it would both unduly complicate and delay the drafting of the present articles if it were to attempt to include in them satisfactory provisions concerning treaties of international organizations. It is true that in the draft provisionally adopted in 1962, article 1 defined the term treaty "for the purpose of the present articles" as covering treaties "concluded between two or more States or other subjects of international law". It is also true that article 3 of that draft contained a very general reference to the capacity of "other subjects of international law" to conclude treaties and a very general rule concerning the capacity of international organizations in particular. But no other article of that draft or of those provisionally adopted in 1963 and 1964 made any specific reference to the treaties of international organizations or of any other "subject of international law". (3) The Commission, since the draft articles were being prepared as a basis for a possible convention, considered it essential, first, to remove from former articles 1 and 3 (articles 2 and 5 of the present draft) the provisions relating to treaties not specifically the subject of the present articles and, secondly, to indicate clearly the restriction of the present articles to treaties concluded between States. Accordingly, it decided to make the appropriate adjustments in articles 1 and 5 and to insert article 1 restricting the scope of the draft articles to treaties concluded between States. The Commission examined whether the object could be more appropriately achieved by merely amending the definition of treaty in article 2. But considerations of emphasis and of drafting convenience led it to conclude that the definition of the scope of the draft articles in the first article is desirable. (4) The Commission considered it no less essential to prevent any misconception from arising from the express restriction of the draft articles to treaties concluded between States or from the elimination of the references to treaties of "other subjects of international law" and of "international organizations". It accordingly decided to underline in the present commentary that the elimination of those references is not to be understood as implying any change of opinion on the part of the Commission as to the legal nature of those forms of international agreements. It further decided to add to article 3 (former article 2) a specific reservation with respect to their legal force and the rules applicable to them. Article 2.36 Use of terms 1. For the purposes of the present articles: (a) "Treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. (b) "Ratification", "Acceptance", "Approval", and "Accession" mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty. (c) "Full powers" means a document emanating from the competent authority of a State designating a person to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty. (d) "Reservation" means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, acceding to, accepting or approving a treaty, whereby it purports to exclude or to vary the legal effect of certain provisions of the treaty in their application to that State. (e) "Negotiating State" means a State which took part in the drawing up and adoption of the text of the treaty. (/) "Contracting State" means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force. (g) "Party" means a State which has consented to be bound by the treaty and for which the treaty is in force. 35 1965 draft, article 0. 36 1962 and 1965 drafts, article 1. 188 Yearbook of the International Law Commission, 1966, Vol. II (h) "Third State" means a State not a party to the treaty. (0 "International organization" means an intergovernmental organization. 2. The provisions of paragraph 1 regarding the use of terms in the present articles are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State. Commentary (1) This article, as its title and the introductory words of paragraph 1 indicate, is intended only to state the meanings with which terms are used in the draft articles. (2) "Treaty". The term "treaty" is used throughout the draft articles as a generic term covering all forms of international agreement in writing concluded between States. Although the term "treaty" in one sense connotes only the single formal instrument, there also exist international agreements, such as exchanges of notes, which are not a single formal instrument, and yet are certainly agreements to which the law of treaties applies. Similarly, very many single instruments in daily use, such as an "agreed minute" or a "memorandum of understanding", could not appropriately be called formal instruments, but they are undoubtedly international agreements subject to the law of treaties. A general convention on the law of treaties must cover all such agreements, and the question whether, for the purpose of describing them, the expression "treaties" should be employed rather than "international agreements" is a question of terminology rather than of substance. In the opinion of the Commission a number of considerations point strongly in favour of using the term "treaty" for this purpose. (3) First, the treaty in simplified form, far from being at all exceptional, is very common, and its use is steadily increasing.37 Secondly, the juridical differences, in so far as they really exist at all, between formal treaties and treaties in simplified form lie almost exclusively in the method of conclusion and entry into force. The law relating to such matters as validity, operation and effect, execution and enforcement, interpretation, and termination, applies to all classes of international agreements. In relation to these matters, there are admittedly some important differences of a juridical character between certain classes or categories of international agreements.38 But these differences spring neither from the form, the appellation, nor any other outward characteristic of the instrument in which they are embodied: they spring exclusively from the content of the agreement, whatever its form. It would therefore be inadmissible to exclude certain forms of international agreements from the general scope of a convention on the law of treaties merely because, in regard to the method of conclusion and entry into force, there may be certain differences between such 37 See first report by Sir H. Lauterpacht, Yearbook of the International Law Commission, 1953, vol. II, pp. 101-106. 38 See on this subject the commentaries to Sir G. Fitzmauricc's second report (Yearbook of the International Law Commission, 1957, vol. II, p. 16, paras. 115, 120, 125-128 and 165-168); and his third report (Yearbook of the International Law Commission, 1958, vol. II, p. 20, paras. 90-93). agreements and formal agreements. Thirdly, even in the case of single formal agreements an extraordinarily varied nomenclature has developed which serves to confuse the question of classifying international agreements. Thus, in addition to "treaty", "convention" and "protocol", one not infrequently finds titles such as "declaration", "charter", "covenant", "pact", "act", "statute", "agreement", "concordat", whilst names like "declaration" "agreement" and "modus vivendi" may well be found given both to formal and less formal types of agreements. As to the latter, their nomenclature is almost illimitable, even if some names such as "agreement", "exchange of notes", "exchange of letters", "memorandum of agreement", or "agreed minute" may be more common than others.39 It is true that some types of instruments are used more frequently for some purposes rather than others; it is also true that some titles are more frequently attached to some types of transaction rather than to others. But there is no exclusive or systematic use of nomenclature for particular types of transaction. Fourthly, the use of the term "treaty" as a generic term embracing all kinds of international agreements in written form is accepted by the majority of jurists. (4) Even more important, the generic use of the term "treaty" is supported by two provisions of the Statute of the International Court of Justice. In Article 36, paragraph 2, amongst the matters in respect of which States parties to the Statute can accept the compulsory jurisdiction of the Court, there is listed "a. the interpretation of a treaty". But clearly, this cannot be intended to mean that States cannot accept the compulsory jurisdiction of the Court for purposes of the interpretation of international agreements not actually called treaties, or embodied in instruments having another designation. Again, in Article 38, paragraph 1, the Court is directed to apply in reaching its decisions, "a. international conventions". But equally, this cannot be intended to mean that the Court is precluded from applying other kinds of instruments embodying international agreements, but not styled "conventions". On the contrary, the Court must and does apply them. The fact that in one of these two provisions dealing with the whole range of international agreements the term employed is "treaty" and in the other the even more formal term "convention" is used serves to confirm that the use of the term "treaty" generically in the present articles to embrace all international agreements is perfectly legitimate. Moreover, the only real alternative would be to use for the generic term the phrase "international agreement", which would not only make the drafting more cumbrous but would sound strangely today, when the "law of treaties" is the term almost universally employed to describe this branch of international law. (5) The term "treaty", as used in the draft articles, covers only international agreements made between "two or more States". The fact that the term is so defined here and 39 See the list given in Sir H. Lauterpacht's first report (Yearbook of the International Law Commission, 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". Reports of the Commission to the General Assembly 189 so used throughout the articles is not, as already underlined in the commentary to the previous article, in any way intended to deny that other subjects of international law, such as international organizations and insurgent communities, may conclude treaties. On the contrary, the reservation in article 3 regarding the legal force of and the legal principles applicable to their treaties was inserted by the Commission expressly for the purpose of refuting any such interpretation of its decision to confine the draft articles to treaties concluded between States. (6) The phrase "governed by international law" serves to distinguish between international agreements regulated by public international law and those which, although concluded between States, are regulated by the national law of one of the parties (or by some other national law system chosen by the parties). The Commission examined the question whether the element of "intention to create obligations under international law" should be added to the definition. Some members considered this to be actually undesirable since it might imply that States always had the option to choose between international and municipal law as the law to govern the treaty, whereas this was often not open to them. Others considered that the very nature of the contracting parties necessarily made an inter-State agreement subject to international law, at any rate in the first instance. The Commission concluded that, in so far as it may be relevant, the element of intention is embraced in the phrase "governed by international law", and it decided not to make any mention of the element of intention in the definition. (7) The restriction of the use of the term "treaty" in the draft articles to international agreements expressed in writing is not intended to deny the legal force of oral agreements under international law or to imply that some of the principles contained in later parts of the Commission's draft articles on the law of treaties may not have relevance in regard to oral agreements. But the term "treaty" is commonly used as denoting an agreement in written form, and in any case the Commission considered that, in the interests of clarity and simplicity, its draft articles on the law of treaties must be confined to agreements in written form. On the other hand, although the classical form of treaty was a single formal instrument, in modern practice international agreements are frequently concluded not only by less formal instruments but also by means of two or more instruments. The definition, by the phrase "whether embodied in a single instrument or in two or more related instruments", brings all these forms of international agreement within the term "treaty". (8) The text provisionally adopted in 1962 also contained definitions of two separate categories of treaty: (a) a "treaty in simplified form" and (b) a "general multilateral treaty". The former term was employed in articles 4 and 12 of the 1962 draft in connexion with the rules governing respectively "full powers" and "ratification". The definition, to which the Commission did not find it easy to give sufficient precision, was employed in those articles as a criterion for the application of certain rules. On re-examining the two articles at its seventeenth session, the Commission revised the formulation of their provisions considerably and in the process found it possible to eliminate the distinctions made in them between "treaties in simplified form" and other treaties which had necessitated the definition of the term. In consequence, it no longer appears in the present article. The second term "general multilateral treaty" was employed in article 8 of the 1962 draft as a criterion for the application of the rules then included in the draft regarding "participation in treaties". The article, for reasons which are explained in a discussion of the question of participation in treaties appended to the commentary to article 12, has been omitted from the draft articles, which do not now contain any rules dealing specifically with participation in treaties. Accordingly this definition also ceases to be necessary for the purposes of the draft articles and no longer appears among the terms defined in the present article. (9) "Ratification", "Acceptance", "Approval" and "Accession". The purpose of this definition is to underline that these terms, as used throughout the draft articles, relate exclusively to the international act by which the consent of a State to be bound by a treaty is established on the international plane. The constitutions of many States contain specific requirements of internal law regarding the submission of treaties to the "ratification" or the "approval" of a particular organ or organs of the State. These procedures of "ratification" and "approval" have their effects in internal law as requirements to be fulfilled before the competent organs of the State may proceed to the international act which will establish the State's consent to be bound. The international act establishing that consent, on the other hand, is the exchange, deposit or notification internationally of the instrument specified in the treaty as the means by which States may become parties to it. Nor is there any exact or necessary correspondence between the use of the terms in internal law and international law, or between one system of internal law and another. Since it is clear that there is some tendency for the international and internal procedures to be confused and since it is only the international procedures which are relevant in the international law of treaties, the Commission thought it desirable in the definition to lay heavy emphasis on the fact that it is purely the international act to which the terms ratification, acceptance, approval and accession relate in the present articles. (10) "Full powers". The definition of this term does not appear to require any comment except to indicate the significance of the final phrase "or for accomplishing any other act with respect to a treaty". Although "full powers" normally come into consideration with respect to conclusion of treaties (see articles 6, 10 and 11), it is possible that they may be called for in connexion with other acts such as the termination or denunciation of a treaty (see article 63, paragraph 2). (11) "Reservation". The need for this definition arises from the fact that States, when signing, ratifying, acceding to, accepting or approving a treaty, not infrequently make declarations as to their understanding of some matter or as to their interpretation of a particular pro- 190 Yearbook of the International Law Commission, 1966, Vol. II vision. Such a declaration may be a mere clarification of the State's position or it may amount to a reservation, according as it does or does not vary or exclude the application of the terms of the treaty as adopted. (12) "Negotiating State", "Contracting State", "Party". In formulating the articles the Commission decided that it was necessary to distinguish between four separate categories of State according as the particular context required, and that it was necessary to identify them clearly by using a uniform terminology. One category, "States entitled to become parties to the treaty", did not appear to require definition. The other three are those defined in sub-paragraphs lie), l(f) and l(g). "Negotiating States" require to be distinguished from both "contracting States" and "parties" in certain contexts, notably whenever an article speaks of the intention underlying the treaty. "States entitled to become parties" is the appropriate term in certain paragraphs of article 72. "Contracting States" require to be distinguished both from "negotiating States" and "parties" in certain contexts where the relevant point is the State's expression of consent to be bound independently of whether the treaty has yet come into force. As to "party", the Commission decided that, in principle, this term should be confined to States for which the treaty is in force. At the same time, the Commission considered it justifiable to use the term "party" in certain articles which deal with cases where, as in article 65, a treaty having purportedly come into force, its validity is challenged, or where a treaty that was in force has been terminated. (13) "Third State". This term is in common use to denote a State which is not a party to the treaty and the Commission, for drafting reasons, considered it convenient to use the term in that sense in section 4 of part III. (14) "International organization". Although the draft articles do not relate to the treaties of international organizations, their application to certain classes of treaties concluded between States may be affected by the rules of an international organization (see article 4). The term "international organization" is here defined as an intergovernmental organization in order to make it clear that the rules of non-governmental organizations are excluded. (15) Paragraph 2 is designed to safeguard the position of States in regard to their internal law and usages, and more especially in connexion with the ratification of treaties. In many countries, the constitution requires that international agreements in a form considered under the internal law or usage of the State to be a "treaty" must be endorsed by the legislature or have their ratification authorized by it, perhaps by a specific majority; whereas other forms of international agreement are not subject to this requirement. Accordingly, it is essential that the definition given to the term "treaty" in the present articles should do nothing to disturb or affect in any way the existing domestic rules or usages which govern the classification of international agreements under national law. Article 3. 4 0 International agreements not within the scope of the present articles The fact that the present articles do not relate: (a) To international agreements concluded between States and other subjects of international law or between such other subjects of international law; or (b) To international agreements not in written form shall not affect the legal force of such agreements or the application to them of any of the rules set forth in the present articles to which they would be subject independently of these articles. Commentary (1) The text of this article, as provisionally adopted in 1962, contained only the reservation in paragraph (b) regarding the force of international agreements not in written form. (2) The first reservation in sub-paragraph (a) regarding treaties concluded between States and other subjects of international law or between such other subjects of international law was added at the seventeenth session as a result of the Commission's decision to limit the draft articles strictly to treaties concluded between States and of the consequential restriction of the definition of "treaty" in article 2 to "an international agreement concluded between States". This narrow definition of "treaty", although expressly limited to the purposes of the present articles, might by itself give the impression that international agreements between a State and an international organization or other subject of international law, or between two international organizations, or between any other two non-Statal subjects of international law, are outside the purview of the law of treaties. As such international agreements are now frequent— especially between States and international organizations and between two organizations—the Commission considered it desirable to make an express reservation in the present article regarding their legal force and the possible relevance to them of certain of the rules expressed in the present articles. (3) The need for the second reservation in sub-paragraph (b) arises from the definition of "treaty" in article 2 as an international agreement concluded "in written form", which by itself might equally give the impression that oral or tacit agreements are not to be regarded as having any legal force or as governed by any of the rules forming the law of treaties. While the Commission considered that in the interests of clarity and simplicity the present articles on the general law of treaties must be confined to agreements in written form, it recognized that oral international agreements may possess legal force and that certain of the substantive rules set out in the draft articles may have relevance also in regard to such agreements. (4) The article accordingly specifies that the fact that the present articles do not relate to either of those categories of international agreements is not to affect their legal force or the "application to them of any of the rules set 40 1962 and 1965 drafts, article 2. Reports of the Commission to the General Assembly 191 forth in the present articles to which they would be subject independently of these articles". Article 4.41 Treaties which are constituent instruments of international organizations or which are adopted within international organizations The application of the present articles to treaties which are constituent instruments of an international organization or are adopted within an international organization shall be subject to any relevant rules of the organization. Commentary (1) The draft articles, as provisionally adopted at the fourteenth, fifteenth and sixteenth sessions, contained a number of specific reservations with regard to the application of the established rules of an international organization. In addition, in what was then part II of the draft articles and which dealt with the invalidity and termination of treaties, the Commission had inserted an article (article 48 of that draft) making a broad reservation in the same sense with regard to all the articles on termination of treaties. On beginning its re-examination of the draft articles at its seventeenth session, the Commission concluded that the article in question should be transferred to its present place in the introduction and should be reformulated as a general reservation covering the draft articles as a whole. It considered that this would enable it to simplify the drafting of the articles containing specific reservations. It also considered that such a general reservation was desirable in case the possible impact of rules of international organizations in any particular context of the law of treaties should have been inadvertently overlooked. (2) The Commission at the same time decided that the categories of treaties which should be regarded as subject to the impact of the rules of an international organization and to that extent excepted from the application of this or that provision of the law of treaties ought to be narrowed. Some reservations regarding the rules of international organizations inserted in articles of the 1962 draft concerning the conclusion of treaties had embraced not only constituent instruments and treaties drawn up within an organization but also treaties drawn up "under its auspices". In reconsidering the matter in 1963 in the context of termination and suspension of the operation of treaties, the Commission decided that only constituent instruments and treaties actually drawn up within an organization should be regarded as covered by the reservation. The general reservation regarding the rules of international organizations inserted in the text of the present article at the seventeenth session was accordingly formulated in those terms. (3) Certain Governments, in their comments upon what was then part III of the draft articles (application, effects, modification and interpretation), expressed the view that care must be taken to avoid allowing the rules of international organizations to restrict the freedom of negotiating States unless the conclusion of the treaty was part of the work of the organization, and not merely when the treaty was drawn up within it because of the convenience of using its conference facilities. Noting these comments, the Commission revised the formulation of the reservation at its present session so as to make it cover only "constituent instruments" and treaties which are "adopted within an international organization". This phrase is intended to exclude treaties merely drawn up under the auspices of an organization or through use of its facilities and to confine the reservation to treaties the text of which is drawn up and adopted within an organ of the organization. Part II.—Conclusion and entry into force of treaties Section 1: Conclusion of treaties Article 5.42 Capacity of States to conclude treaties 1. Every State possesses capacity to conclude treaties. 2. States members of a federal union may possess a capacity to conclude treaties if such capacity is admitted by the federal constitution and within the limits there laid down. Commentary (1) Some members of the Commission considered that there was no need for an article on capacity in international law to conclude treaties. They pointed out that capacity to enter into diplomatic relations had not been dealt with in the Vienna Convention on Diplomatic Relations and suggested that, if it were to be dealt with in the law of treaties, the Commission might find itself codifying the whole law concerning the "subjects" of international law. Other members felt that the question of capacity was more prominent in the law of treaties than in the law of diplomatic intercourse and immunities and that the draft articles should contain at least some general provisions concerning capacity to conclude treaties. (2) In 1962 the Commission, while holding that it would not be appropriate to enter into all the detailed problems of capacity which might arise, decided to include in the present article three broad provisions concerning the capacity to conclude treaties of (i) States and other subjects of international law, (ii) Member States of a federal union and (iii) international organizations. The third of these provisions—capacity of international organizations to conclude treaties—was an echo from a period when the Commission contemplated including a separate part dealing with the treaties of international organizations. Although at its session in 1962 the Commission had decided to confine the draft articles to treaties concluded between States, it retained this provision in the present article dealing with capacity to conclude treaties. On re-examining the article, however, at its seventeenth session the Commission concluded that the logic of its decision that the draft articles should deal only with the treaties concluded between States necessitated the omission from the first paragraph of the 411963 draft, article 48; 1965 draft, article 3(bis). 42 1962 and 1965 drafts, article 3. 192 Yearbook of the International Law Commission, 1966, Vol. II reference to the capacity of "other subjects of international law", and also required the deletion of the entire third paragraph dealing specifically with the treatymaking capacity of international organizations. (3) Some members of the Commission were of the opinion that the two provisions which remained did not justify the retention of the article. They considered that to proclaim that States possess capacity to conclude treaties would be a pleonasm since the proposition was already implicit in the definition of the scope of the draft articles in article 1. They also expressed doubts about the adequacy of and need for the provision in paragraph 2 regarding the capacity of member States of a federal union; in particular, they considered that the role of international law in regard to this question should have been included in the paragraph. The Commission, however, decided to retain the two provisions, subject to minor drafting changes. It considered that it was desirable to underline the capacity possessed by every State to conclude treaties; and that, having regard to the examples which occur in practice of treaties concluded by member States of certain federal unions with foreign States in virtue of powers given to them by the constitution of the particular federal union, a general provision covering such cases should be included. (4) Paragraph 1 proclaims the general principle that every State possesses capacity to conclude treaties. The term "State" is used in this paragraph with the same meaning as in the Charter of the United Nations, the Statute of the Court, the Geneva Conventions on the Law of the Sea and the Vienna Convention on Diplomatic Relations; i.e. it means a State for the purposes of international law. (5) Paragraph 2, as already mentioned, deals with the case of federal States whose constitutions, in some instances, allow to their member States a measure of treaty-making capacity. It does not cover treaties made between two units of a federation. Agreements between two member states of a federal State have a certain similarity to international treaties and in some instances certain principles of treaty law have been applied to them in internal law by analogy. However, those agreements operate within the legal regime of the constitution of the federal State, and to bring them within the terms of the present articles would be to overstep the line between international and domestic law. Paragraph 2, therefore, is concerned only with treaties made by a unit of the federation with an outside State. More frequently, the treaty-making capacity is vested exclusively in the federal government, but there is no rule of international law which precludes the component States from being invested with the power to conclude treaties with third States. Questions may arise in some cases as to whether the component State concludes the treaty as an organ of the federal State or in its own right. But on this point also the solution must be sought in the provisions of the federal constitution. Article 6.43 Full powers to represent the State in the conclusion of treaties 1. Except as provided in paragraph 2, a person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty only if: (a) He produces appropriate full powers; or (b) It appears from the circumstances that the intention of the States concerned was to dispense with full powers. 2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) Representatives accredited by States to an international conference or to an organ of an international organization, for the purpose of the adoption of the text of a treaty in that conference or organ. Commentary (1) The rules contained in the text of the article provisionally adopted in 1962 have been rearranged and shortened. At the same time, in the light of the comments of Governments, the emphasis in the statement of the rules has been changed. The 1962 text set out the law from the point of view of the authority of the different categories of representatives to perform the various acts relating to the conclusion of a treaty. The text finally adopted by the Commission approaches the matter rather from the point of view of stating the cases in which another negotiating State may call for the production of full powers and the cases in which it may safely proceed without doing so. In consequence, the motif of the formulation of the rules is a statement of the conditions under which a person is considered in international law as representing his State for the purpose of performing acts relating to the conclusion of a treaty. (2) The article must necessarily be read in conjunction with the definition of "full powers" in article 2(l)(c), under which they are expressed to mean: "a document emanating from the competent authority of a State designating a person to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty". The 1962 text of the present article dealt with certain special aspects of "full powers" such as the use of a letter or telegram as provisional evidence of a grant of full powers. On re-examining the matter the Commission concluded that it would be better to leave such details to practice and to the decision of those concerned rather than to try to cover them by a general 1 1962 and 1965 drafts, article 4. Reports of the Commission to the General Assembly 193 rule. Those provisions of the 1962 text have therefore been dropped from the article. (3) Paragraph 1 lays down the general rule for all cases except those specifically listed in the second paragraph. It provides that a person is considered as representing his State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound only if he produces an appropriate instrument of full powers or it appears from the circumstances that the intention of the States concerned was to dispense with them. The rule makes it clear that the production of full powers is the fundamental safeguard for the representatives of the States concerned of each other's qualifications to represent their State for the purpose of performing the particular act in question; and that it is for the States to decide whether they may safely dispense with the production of full powers. In earlier times the production of full powers was almost invariably requested; and it is still common in the conclusion of more formal types of treaty. But a considerable proportion of modern treaties are concluded in simplified form, when more often than not the production of full powers is not required. (4) Paragraph 2 sets out three categories of case in which a person is considered in international law as representing his State without having to produce an instrument of full powers. In these cases, therefore, the other representatives are entitled to rely on the qualification of the person concerned to represent his State without calling for evidence of it. The first of these categories covers Heads of State, Heads of Government and Ministers for Foreign Affairs, who are considered as representing their State for the purpose of performing all acts relating to the conclusion of a treaty. In the case of Foreign Ministers, their special position as representatives of their State for the purpose of entering into international engagements was expressly recognized by the Permanent Court of International Justice in the Legal Status of Eastern Greenland case ** in connexion with the "Ihlen declaration". (5) The second special category of cases is heads of diplomatic missions, who are considered as representing their State for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited. Article 3, paragraph l(e) of the Vienna Convention on Diplomatic Relations provides that the "functions of a diplomatic mission consist, inter alia, in...negotiating with the government of the receiving State". However, the qualification of heads of diplomatic missions to represent their States is not considered in practice to extend, without production of full powers, to expressing the consent of their State to be bound by the treaty. Accordingly, sub-paragraph (b) limits their automatic qualification to represent their State up to the point of "adoption" of the text. (6) The third special category is representatives of States accredited to an international conference or to an organ of an international organization, for which the same rule is laid down as for the head of a diplomatic mission: namely, automatic qualification to represent their States for the purpose of adopting the text of a treaty but no more. This category replaces paragraph 2(b) of the 1962 text, which treated heads of permanent missions to international organizations on a similar basis to heads of diplomatic missions, so that they would automatically have been considered as representing their States in regard to treaties drawn up under the auspices of the organization and also in regard to treaties between their State and the organization. In the light of the comments of Governments and on a further examination of the practice, the Commission concluded that it was not justified in attributing to heads of permanent missions such a general qualification to represent the State in the conclusion of treaties. At the same time, it concluded that the 1962 rule was too narrow in referring only to heads of permanent missions since other persons may be accredited to an organ of an international organization in connexion with the drawing up of the text of the treaty, or to an international conference. Article 7.45 Subsequent confirmation of an act performed without authority An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 6 as representing his State for that purpose is without legal effect unless afterwards confirmed by the competent authority of the State. Commentary (1) This article contains the substance of what appeared in the draft provisionally adopted in 1963 as paragraph 1 of article 32, dealing with lack of authority to bind the State as a ground of invalidity. That article then contained two paragraphs dealing respectively with acts purporting to express a State's consent to be bound (1) performed by a person lacking any authority from the State to represent it for that purpose; and (ii) performed by a person who had authority to do so subject to certain restrictions but failed to observe those restrictions. In re-examining article 32 at the second part of its seventeenth session, however, the Commission concluded that only the second of these cases could properly be regarded as one of invalidity of consent. It considered that in the first case, where a person lacking any authority to represent the State in this connexion purported to express its consent to be bound by a treaty, the true legal position was that his act was not attributable to the State and that, in consequence, there was no question of any consent having been expressed by it. Accordingly, the Commission decided that the first case should be dealt with in the present part in the context of representation of a State in the conclusion of treaties; and that the rule stated in the article should be that the unauthorized act of the representative is without legal effect unless afterwards confirmed by the State. (2) Article 6 deals with the question of full powers to represent the State in the conclusion of treaties. The ** P.C.I.J. (1933) Series A/B, No. 53, p. 71. 46 1963 draft, article 32, para. 1. 194 Yearbook of the International Law Commission, 1966, Vol. II present article therefore provides that "An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 6 as representing his State for that purpose is without legal effect unless afterwards confirmed by the competent authority of the State". Such cases are not, of course, likely to happen frequently, but instances have occurred in practice. In 1908, for example, the United States Minister to Romania signed two conventions without having any authority to do so. 46 With regard to one of these conventions his Government had given him no authority at all, while he had obtained full powers for the other by leading his Government to understand that he was to sign a quite different treaty. Again, in 1951 a convention concerning the naming of cheeses concluded at Stresa was signed by a delegate on behalf both of Norway and Sweden, whereas it appears that he had authority to do so only from the former country. In both these instances the treaty was subject to ratification and was in fact ratified. A further case, in which the same question may arise, and one more likely to occur in practice, is where an agent has authority to enter into a particular treaty, but goes beyond his full powers by accepting unauthorized extensions or modifications of it. An instance of such a case was Persia's attempt, in discussions in the Council of the League, to disavow the Treaty of Erzerum of 1847 on the ground that the Persian representative had gone beyond his authority in accepting a certain explanatory note when exchanging ratifications. (3) Where there is no authority to enter into a treaty, it seems clear, on principle, that the State must be entitled to disavow the act of its representative, and the article so provides. On the other hand, it seems equally clear that, notwithstanding the representative's original lack of authority, the State may afterwards endorse his act and thereby establish its consent to be bound by the treaty. It will also be held to have done so by implication if it invokes the provisions of the treaty or otherwise acts in such a way as to appear to treat the act of its representative as effective. Article 8.47 Adoption of the text 1. The adoption of the text of a treaty takes place by the unanimous consent of the States participating in its drawing up except as provided in paragraph 2. 2. The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States participating in the conference, unless by the same majority they shall decide to apply a different rule. Commentary (1) This article deals with the voting rule by which the text of the treaty is "adopted", i.e. the voting rule by which the form and content of the proposed treaty are settled. At this stage, the negotiating States are concerned only with drawing up the text of the treaty as a document setting out the provisions of the proposed treaty and their 46 Hackworth's Digest of International Law, vol. IV, p. 467. 47 1962 and 1965 drafts, article 6. votes, even when cast at the end of the negotiations in favour of adopting the text as a whole, relate solely to this process. A vote cast at this stage, therefore, is not in any sense an expression of the State's agreement to be bound by the provisions of the text, which can only become binding upon it by a further expression of its consent (signature, ratification, accession or acceptance). (2) In former times the adoption of the text of a treaty almost always took place by the agreement of all the States participating in the negotiations and unanimity could be said to be the general rule. The growth of the practice of drawing up treaties in large international conferences or within international organizations has, however, led to so normal a use of the procedure of majority vote that, in the opinion of the Commission, it would be unrealistic to lay down unanimity as the general rule for the adoption of the texts of treaties drawn up at conferences or within organizations. Unanimity remains the general rule for bilateral treaties and for treaties drawn up between few States. But for other multilateral treaties a different general rule must be specified, although, of course, it will always be open to the States concerned to apply the rule of unanimity in a particular case if they should so decide. (3) Paragraph 1 states the classical principle of unanimity as the applicable rule for the adoption of the text except in the case of a text adopted at an international conference. This rule, as already indicated, will primarily apply to bilateral treaties and to treaties drawn up between only a few States. Of course, under paragraph 2, the States participating in a conference may decide beforehand or at the Conference to apply the unanimity principle. But in the absence of such a decision, the unanimity principle applies under the present article to the adoption of the texts of treaties other than those drawn up at an international conference. (4) Paragraph 2 concerns treaties the texts of which are adopted at an international conference, and the Commission considered whether a distinction should be made between conferences convened by the State concerned and those convened by an international organization. The question at issue was whether in the latter case the voting rule of the organization should automatically apply. When the General Assembly convenes a conference, the practice of the Secretariat of the United Nations is, after consultation with the States mainly concerned, to prepare provisional or draft rules of procedure for the conference, including a suggested voting rule, for adoption by the conference itself. But it is left to the conference to decide whether to adopt the suggested rule or replace it by another. The Commission therefore concluded that both in the case of a conference convened by the States themselves and of one convened by an organization, the voting rule for adopting the text is a matter for the States at the conference. (5) The general rule proposed in paragraph 2 is that a two-thirds majority should be necessary for the adoption of a text at any international conference unless the States at the conference should by the same majority decide to apply a different voting rule. While the States at the conference must retain the ultimate power to decide the Reports of the Commission to the General Assembly 195 voting rule by which they will adopt the text of the treaty, it appeared to the Commission to be desirable to fix in the present articles the procedure by which a conference is to arrive at its decision concerning that voting rule. Otherwise there is some risk of the work of the conference being delayed by long procedural debates concerning the preliminary voting rule by which it is to decide upon its substantive voting rule for adopting the text of the treaty. Some members of the Commission considered that the procedural vote should be taken by simple majority. Others felt that such a rule might not afford sufficient protection to minority groups at the conference, for the other States would be able in every case to decide by a simple majority to adopt the text of the treaty by the vote of a simple majority and in that way override the views of what might be quite a substantial minority group of States at the conference. The rule in paragraph 2 takes account of the interests of minorities to the extent of requiring at least two-thirds of the States to be in favour of proceeding by simple majorities before recourse can be had to simple majority votes for adopting the text of a treaty. It leaves the ultimate decision in the hands of the conference but at the same time establishes a basis upon which the procedural questions can be speedily and fairly resolved. The Commission felt all the more justified in proposing this rule, seeing that the use of a two-thirds majority for adopting the text of multilateral treaties is now so frequent. (6) The Commission considered the further case of treaties like the Genocide Convention or the Convention on the Political Rights of Women, which are actually drawn up within an international organization. Here, the voting rule for adopting the text of the treaty must clearly be the voting rule applicable in the particular organ in which the treaty is adopted. This case is, however, covered by the general provision in article 4 regarding the application of the rules of an international organization, and need not receive mention in the present article. Article 9. 48 Authentication of the text The text of a treaty is established as authentic and definitive: (a) By such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or (b) Failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text. Commentary (1) Authentication of the text of a treaty is necessary in order that the negotiating States, before they are called upon to decide whether they will become parties to the treaty, may know finally and definitively what is the content of the treaty to which they will be subscribing. There must come a point, therefore, at which the draft which the parties have .agreed upon is established as being the text of the proposed treaty and not susceptible of alteration. Authentication is the process by which this definitive text is established, and it consists in some act or procedure which certifies the text as the correct and authentic text. (2) In the past jurists have not usually spoken of authentication as a distinct part of the treaty-making process. The reason appears to be that until comparatively recently signature was the general method of authenticating a text and signature has another function as a first step towards ratification, acceptance or approval of the treaty or an expression of the State's consent to be bound by it. The authenticating function of signature is thus merged in its other function. 49 In recent years, however, other methods of authenticating texts of treaties on behalf of all or most of the negotiating States have been devised. Examples are the incorporation of unsigned texts of projected treaties in Final Acts of diplomatic conferences, the procedure of international organizations under which the signatures of the President or other competent authority of the organization authenticate the texts of conventions, and treaties whose texts are authenticated by being incorporated in a resolution of an international organization. It is these developments in treaty-making practice which emphasize the need to deal separately with authentication as a distinct procedural step in the conclusion of a treaty. Another consideration is that the text of a treaty may be "adopted" in one language but "authenticated" in two or more languages. (3) The procedure of authentication will often be fixed either in the text itself or by agreement of the negotiating States. Failing any such prescribed or agreed procedure and except in the cases covered by the next paragraph authentication takes place by the signature, signature ad referendum or initialling of the text by the negotiating States, or alternatively of the Final Act of a conference incorporating the text. (4) As already indicated, authentication today not infrequently takes the form of a resolution of an organ of an international organization or of an act of authentication performed by a competent authority of an organization. These, however, are cases in which the text of the treaty has been adopted within an international organization and which are therefore covered by the general provision in article 4 regarding the established rules of international organizations. Accordingly, they do not require specific mention here. (5) The present article, therefore, simply provides for the procedures mentioned in paragraph (3) above and leaves the procedures applicable within international organizations to the operation of article 4. Article 10.50 Consent to be bound by a treaty expressed by signature 1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when: 481962 and 1965 drafts, article 7. 49 See Yearbook of the International Law Commission, 1950, vol. II, pp. 233 and 234. 60 1962 draft, articles 10 and 11, and 1965 draft, article 11. 196 Yearbook of the International Law Commission, 1966, Vol. II (a) The treaty provides that signature shall have that effect; (b) It is otherwise established that the negotiating States were agreed that signature should have that effect; (c) The intention of the State in question to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation. 2. For the purposes of paragraph 1: (a) The initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed; (b) The signature ad referendum of a treaty by a representative, if confirmed by bis State, constitutes a full signature of the treaty. Commentary (1) The draft provisionally adopted in 1962 dealt with various aspects of "signature" in three separate articles: article 7, which covered the authenticating effect of signature, initialling and signature ad referendum; article 10, which covered certain procedural aspects of the three forms of signatures; and article 11, which covered their legal effects. This treatment of the matter involved some repetition of certain points and tended to introduce some complication into the rules. At the same time, certain provisions were expository in character rather than formulated as legal rules. Accordingly, in re-examining articles 10 and 11 at its seventeenth session, the Commission decided to deal with the authenticating effects of signature exclusively in the present article 9, to delete article 10 of the previous draft, to incorporate such of its remaining elements as required retention in what is now the present article, and to confine the article to operative legal rules. (2) The present article, as its title indicates, deals with the institution of signature only as a means by which the definitive consent of a State to be bound by a treaty is expressed. It does not deal with signature subject to "ratification" or subject to "acceptance" or "approval", as had been the case in paragraph 2 of the 1962 text of article 11. The Commission noted that one of the points covered in that paragraph went without saying and that the other was no more than a cross-reference to former article 17 (now article 15). It also noted that the other principal effect of signature subject to ratification, etc.— authentication—was already covered in the present article 9. In addition, it noted that this institution received further mention in article 11. Accordingly, while not in any way underestimating the significance or usefulness of the institution of signature subject to ratification, acceptance or approval, the Commission concluded that it was unnecessary to give it particular treatment in a special article or provision. (3) Paragraph 1 of the article admits the signature of a treaty by a representative as an expression of his State's consent to be bound by the treaty in three cases. The first is when the treaty itself provides that such is to be the effect of signature as is common in the case of many types of bilateral treaties. The second is when it is otherwise established that the negotiating States were agreed that signature should have that effect. In this case it is simply a question of demonstrating the intention from the evidence. The third case, which the Commission included in the light of the comments of Governments, is when the intention of an individual State to give its signature that effect appears from the full powers issued to its representative or was expressed during the negotiation. It is not uncommon in practice that even when ratification is regarded as essential by some States from the point of view of their own requirements, another State is ready to express its consent to be bound definitively by its signature. In such a case, when the intention to be bound by signature alone is made clear, it is superfluous to insist upon ratification; and under paragraph l(c) signature will have that effect for the particular State in question. (4) Paragraph 2 covers two small but not unimportant subsidiary points. Paragraph 2(o) concerns the question whether initialling of a text may constitute a signature expressing the State's consent to be bound by the treaty. In the 1962 draft61 the rule regarding initialling of the text was very strict, initialling being treated as carrying only an authenticating effect and as needing in all cases to be followed by a further act of signature. In short it was put on a basis similar to that of signature ad referendum. Certain Governments pointed out, however, that in practice initialling, especially by a Head of State, Prime Minister or Foreign Minister, is not infrequently intended as the equivalent of full signature. The Commission recognized that this was so, but at the same time felt that it was important that the use of initials as a full signature should be understood and accepted by the other States. It also felt that it would make the rule unduly complicated to draw a distinction between intialling by a high minister of State and by other representatives, and considered that the question whether initialling amounts to an expression of consent to be bound by the treaty should be regarded simply as a question of the intentions of the negotiating States. Paragraph 2(a) therefore provides that initialling is the equivalent of a signature expressing such consent when it is established that the negotiating States so agreed. (5) Paragraph 2(b) concerns signature ad referendum which, as its name implies, is given provisionally and subject to confirmation. When confirmed, it constitutes a full signature and will operate as one for the purpose of the rules in the present article concerning the expression of the State's consent to be bound by a treaty. Unlike "ratification", the "confirmation" of a signature ad referendum is not a confirmation of the treaty but simply of the signature; and in principle therefore the confirmation renders the State a signatory as of the original date of signature. The 1962 text of the then article 10 stated this specifically and as an absolute rule. A suggestion was made in the comments of Governments that the rule should be qualified by the words "unless the State concerned specifies a later date when it confirms its signature". As this would enable a State to choose unilaterally, in the light of what had happened in the interval, whether to be considered a party from the earlier or later date, the Commission felt that to add such an express qualifi61 Article 10, para. 3 of that draft. Reports of the Commission to the General Assembly 197 cation of the normal rule would be undesirable. The point, it considered, should be left in each case to the negotiating States. If these raised no objection to a later date's being specified at the time of confirmation of a signature ad referendum, the question would solve itself. Paragraph 2(b) therefore simply states that a signature ad referendum, if confirmed, constitutes a full signature for the purposes of the rules regarding the expression of a State's consent to be bound by a treaty. Article 11. s2 Consent to be bound by a treaty expressed by ratification, acceptance or approval 1. The consent of a State to be bound by a treaty is expressed by ratification when: (a) The treaty provides for such consent to be expressed by means of ratification; (b) It is otherwise established that the negotiating States were agreed that ratification should be required; (c) The representative of the State in question has signed the treaty subject to ratification; or (d) The intention of the State in question to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation. 2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification. Commentary (1) This article sets out the rules determining the cases in which ratification is necessary in addition to signature in order to establish the State's consent to be bound by the treaty. The word "ratification", as the definition in article 2 indicates, is used here and throughout these draft articles exclusively in the sense of ratification on the international plane. Parliamentary "ratification" or "approval" of a treaty under municipal law is not, of course, unconnected with "ratification" on the international plane, since without it the necessary constitutional authority to perform the international act of ratification may be lacking. But it remains true that the international and constitutional ratifications of a treaty are entirely separate procedural acts carried out on two different planes. (2) The modern institution of ratification in international law developed in the course of the nineteenth century. Earlier, ratification had been an essentially formal and limited act by which, after a treaty had been drawn up, a sovereign confirmed, or finally verified, the full powers previously issued to his representative to negotiate the treaty. It was then not an approval of the treaty itself but a confirmation that the representative had been invested with authority to negotiate it and, that being so, there was an obligation upon the sovereign to ratify his representative's full powers, if these had been in order. Ratification came, however, to be used in the majority of cases as the means of submitting the treaty-making power of the executive to parliamentary control, and ultimately the doctrine of ratification underwent a fundamental change. It was established that the treaty itself was subject to subsequent ratification by the State before it became binding. Furthermore, this development took place at a time when the great majority of international agreements were formal treaties. Not unnaturally, therefore, it came to be the opinion that the general rule is that ratification is necessary to render a treaty binding. (3) Meanwhile, however, the expansion of intercourse between States, especially in economic and technical fields, led to an ever-increasing use of less formal types of international agreements, amongst which were exchanges of notes, and these agreements are usually intended by the parties to become binding by signature alone. On the other hand, an exchange of notes or other informal agreement, though employed for its ease and convenience, has sometimes expressly been made subject to ratification because of constitutional requirements in one or the other of the contracting States. (4) The general result of these developments has been to complicate the law concerning the conditions under which treaties need ratification in order to make them binding. The controversy which surrounds the subject is, however, largely theoretical.53 The more formal types of instrument include, almost without exception, express provisions on the subject of ratification, and occasionally this is so even in the case of exchanges of notes or other instruments in simplified form. Moreover, whether they are of a formal or informal type, treaties normally either provide that the instrument shall be ratified or, by laying down that the treaty shall enter into force upon signature or upon a specified date or event, dispense with ratification. Total silence on the subject is exceptional, and the number of cases that remain to be covered by a general rule is very small. But, if the general rule is taken to be that ratification is necessary unless it is expressly or impliedly excluded, large exceptions qualifying the rule have to be inserted in order to bring it into accord with modern practice, with the result that the number of cases calling for the operation of the general rule is small. Indeed, the practical effect of choosing either that version of the general rule, or the opposite rule that ratification is unnecessary unless expressly agreed upon by the parties, is not very substantial. (5) The text provisionally adopted in 1962 began by declaring in its first paragraph that treaties in principle required to be ratified except as provided in the second paragraph. The second paragraph then excluded from the principle four categories of case in which the intention to dispense with ratification was either expressed, established or to be presumed; and one of those categories was treaties "in simplified form". A third paragraph then qualified the second by listing three contrary categories of case where the intention to require ratification was expressed or established. The operation of paragraph 2 6a 1962 draft, articles 12 and 14, and 1965 draft, article 12. 63 See the reports of Sir H. Lauterpacht, Yearbook of the International Law Commission, 1953, vol. II, p. 112; and ibid., 1954, vol. II, p. 127; and the first report of Sir G. Fitzmaurice, Yearbook of the International Law Commission, 1956, vol. II, p. 123.