United Nations Conference on Succession of States in Respect of … · 2017. 1. 30. · Tuesday, 8 August 1978, at 11 a.m. Consideration of the question of succession of States in

A/CONF.80/16/Add.l

UNITED NATIONSCONFERENCE ON

SUCCESSION OF STATESIN RESPECT OF TREATIES

Resumed sessionVienna, 31 July-23 August 1978

OFFICIAL RECORDSVolume II

Summary records of the plenary meetingsand of the meetings

of the Committee of the Whole

UNITED NATIONS

UNITED NATIONSCONFERENCE ON

SUCCESSION OF STATESIN RESPECT OF TREATIES

Resumed sessionVienna, 31 July-23 August 1978

OFFICIAL RECORDSVolume II

Summary records of the plenary meetingsand of the meetings

of the Committee of the Whole

UNITED NATIONSNew York, 1979

INTRODUCTORY NOTE

This volume contains the summary records of the plenary meetings and of themeetings of the Committee of the Whole held during the resumed session of theConference. The summary records of the 1977 session will be found in a separate volume,and a third volume contains the documents of the Conference.

** *

The summary records of the plenary meetings were originally circulated inmimeographed form as documents A/CONF.80/SR.9 to SR.15 and those of theCommittee of the Whole as documents A/CONF.80/C.1/SR.37 to SR.57. They includethe corrections to the provisional summary records that were requested by delegationsand such editorial changes as were considered necessary.

Symbols of United Nations documents are composed of capital letters combinedwith figures. Mention of such a symbol indicates a reference to a United Nationsdocument.

A/CONF.80/16/Add.l

UNITED NATIONS PUBLICATION

Sales number: E.79.V.9

Price: $U.S. 12.00(or equivalent in other currencies)

CONTENTS

Page

Recommendation of the Conference and resolution of theGeneral Assembly relating to the Conference viiRecommendation adopted by the Conference at the

closure of its 1977 session vii

Resolution 32/47, 8 December 1977 vii

Officers of the Conference and its Committees ix

Secretariat of the Conference at the resumed session xi

Agenda xiii

Rules of procedure xiii

SUMMARY RECORDS OF THE PLENARY MEETINGS

9th plenary meeting

Monday, 31 July 1978, at 11.25a.m.

Opening of the resumed session by the President of the

Conference 1

Address by the Representative of the Secretary-General . 1

Election of one Vice-President 2

Organization of the work of the Conference at itsresumed session 3

10th plenary meeting

Monday, 31 July 19 78, at 3.25 p. m

Election of one Vice-President (concluded) 3

Organization of work 3


Monday, 7 August 1978, at 3.45 p.m.

Tribute to the memory of his Holiness, the late Pope PaulVI 3


Thursday, 17August 1978, at3.30p.jn.

Credentials of representatives to the resumed session ofthe Conference: Report of the Credentials Committee 4

Consideration of the question of the succession of Statesin respect of treaties in accordance with resolutions3496 (XXX) and 31/18 adopted by the GeneralAssembly on 15 December 1975 and 24 November1976

Draft resolution A/CONF.80/L.1 , 5



Monday, 21 August 1978, at 3,20 p. m.

Consideration of the question of the succession of Statesin respect of treaties in accordance with resolutions3496 (XXX) and 32/18 adopted by the GeneralAssembly on 15 December 1975 and 24 November1976 {continued)

Page

Titles and texts of articles 30 to 39 adopted by theCommittee of the Whole 11

Report of the Drafting Committee on the final clauses 12

Report of the Drafting Committee on the preamble tothe Convention „.. , „ 17

Title of the future Convention 19


Tuesday, 22 August 19 78, at 11.25 a. m.

Consideration of the question of the succession of Statesin respect of treaties in accordance with resolutions3496 (XXX) and 31/18 adopted by the GeneralAssembly on 15 December 1975 and 24 November1976 (concluded)

Report of the Drafting Committee on the final clauses(concluded) 19

Articles 6, 7 and 2, title of article 11, and articles 12and 12 bis adopted by the Committee of the Whole 19

Title and text of the resolution concerning Article 30 21

Peaceful settlements of disputes 22

Division of the convention into parts and sections andtitles thereof 22

Report of the Committee of the Whole on its work atthe resumed session of the Conference 22

Title of the convention 22

Adoption of a convention and other instruments deemedappropriate and of the Final Act of the Conference . . 22

Tribute to the memory of Mr. Jomo Kenyatta, Presidentof Kenya 24


Tliesday, 22 August 1978, at 3.30 p. m.

Tribute to the memory of Mr. Jomo Kenyatta, Presidentof Kenya (concluded) 24

Adoption of a convention and other instruments deemedappropriate and of the Final Act of the Conference(concluded) - 25

Summary records of meetings of the Committee of the Whole

37th meeting

Monday, 31 July 1978, at4p.m.

Consideration of the question of succession of States inrespect of treaties in accordance with resolutions 3496(XXX) and 31/18 adopted by the General Assemblyon 15 December 1975 and 24 November 1976(continued)

Article 30 (Effects of a uniting of States in respect oftreaties in force at the date of the succession ofStates) 31

Page

38th meeting

Tuesday, 1 August 1978, at 10.20a.m.

Consideration of the question of succession of States inrespect of treaties in accordance with resolutions 3496(XXX) and 31/18 adopted by the General Assemblyon 15 December 1975 and 24 November 1976{continued)

Communication concerning article 7 34

Article 30 (Effects of a uniting of States in respect oftreaties in force at the date of the succession ofStates) {continued) 34

Statement by the Chairman of the Delegation of theUnited Nations Council for Namibia 41

39th meetingTuesday, I August 1978, at 3.25p. m


Article 30 (Effects of a uniting of States in respect oftreaties in force at the date of the succession ofStates) (concluded) and

Proposed new article 30 bis (Conflicting treaty re-gimes) 42

Proposed resolutions of the Conference on incompa-tible treaty obligations 4B

40th meeting

Wednesday, 2 August 1978, at 10.25a.m.


Proposed resolution of the Conference on incom-patible treaty obligations (concluded) 49

Article 31 (Effects of a uniting of States in respect oftreaties not in force at the date of the succession ofStates) 51

Article 32 (Effects of a uniting of States in respect oftreaties signed by a predecessor State subject toratification, acceptance or approval) 51

Article 33 (Succession of States in cases of separationof parts of a State) 52

Communication by the Chairman on articles 22 bisand 7 56

41st meeting

Wednesday, 2 August 1978, at 3.25 p. m


Article 33 (Succession of States in cases of separationof parts of a State) (continued) 57

Article 34 (Position if a State continues after sepa-ration of part of its territory) 63

Page

42nd meeting

Thursday, 3 August 1978, at 10.25 a.m.


Article 33 (Succession of States in cases of separationof parts of a State) (continued) , 63

Article 34 (Position if a State continues after sepa-ration of part of its territory) (concluded) 71

43rd meeting

Thursday, 3 August 1978, at 3.30 p. m.


Article 35 (Participation in treaties not in force at thedate of the succession of States in cases ofseparation of parts of a State) 71

Article 36 (Participation in cases of separation of partsof a State in treaties signed by the predecessorState subject to ratification, acceptance or ap-proval) 71

Proposed new article 36 bis 72

Article 37 (Notification) , 73

Proposed new article 37 bis (Objections to succession) 74

Article 38 (Cases of State responsibib'ty and outbreakof hostilities) and

Article 39 (Cases of military occupation) 76

44th meeting

Friday, 4August 1978, at 10.25a.m.

Consideration of the question of succession of States inrespect of treaties in accordance with resolutions 3496(XXX) and 31/18 adopted by the General Assemblyon 15 D&cember 1975 and 24 November 1976(continued)

Proposed new article 37 bis (Objections to succession)(continued) 77

Proposed new article 39 bis (Settlement of disputes) .

45th meeting

Friday, 4 August 1978, at 3.50p.m.


Proposed new article 39 bis (Settlement of disputes)(continued)

46th meeting

Monday, 7August 1978, at 10.40a. tn.


7B

IV

Proposed new article 39 bis (Settlement of disputes){continued)

Proposed new article 37 bis (Objections to succession)(concluded)

47 th meetingMonday, 7 August 1978, at 4.05 p.m.


Proposed new article 40

Page

93

96

99


48th meeting

Tuesday, 8 August 1978, at 11 a.m.

Consideration of the question of succession of States inrespect of treaties in accordance with resolutions 3496(XXX) and 31/18 adopted by the General Assemblyon 15 December and 24 November 1976 (continued)


49th meeting

Tuesday, 8 August 1978, at 5p.m.


Article 33 (Succession of States in cases of separationof parts of a State (concluded) 109

Proposed new article 39 bis (Settlement of disputes)(concluded) 110

50th meeting

Monday, 14August 1978, at 5p.m.


First r e p o r t of the Informal Consul tat ions Group . . . . 110


51st meeting

Tuesday, 15 August 1978, at 5.05 p. m.

Election of the Rapporteur 116


First report of the Informal Consultations Group(concluded) 116

Agreed text of the Ad Hoc Group on PeacefulSettlement of Disputes 117

Page

52nd meeting

Tuesday, 15 August 1978, at 9.30 p.m.


Agreed text of the Ad Hoc Group on PeacefulSettlement of Disputes (concluded) 120

Article 2 (Use of terms) 122

53rd meeting

Thursday, 17August 1978, at 11.45a.m.


Report of the Drafting Committee on the titles andtexts of articles 30 to 39 adopted by the DraftingCommittee 126

Report of the Drafting Committee of the titles andtexts of articles 6 and 7 adopted by the DraftingCommittee 129

54th meeting

Friday, 18 August 1978, at 11.35a.m.


Second report of the Informal Consultations Group . . 131


55th meetingFriday, 18August 1978, at 4.20p.m.


Second report of the Informal Consultations Group(concluded) 136

Proposal to insert a new article 39 ter (Miscellaneousprovisions) 141


56th meeting

Monday, 21 August 1978, at 11.55a.m


Report of the Drafting Committee on the titles andtexts of articles 6 and 7 adopted by the DraftingCommittee (concluded) 141

Report of the Drafting Committee on the title andtext of article 2 adopted by the Drafting Commit-tee 142

Page

Report of the Drafting Committee on the title ofarticle 11 and the titles and texts of articles 12 and12 bis adopted by the Drafting Committee 144

Report of the Drafting Committee on the title andtext of the resolution concerning article 30 adoptedby the Drafting Committee 145

57th meeting

Tuesday, 22 August 1978, at 9.50 a.m.

Consideration of the question of succession of States inrespect of treaties in accordance with resolutions 3496(XXX) and 31/18 adopted by the General Assemblyon 15 December 1975 and 24 November 1976{concluded)

Page

Report of the Drafting Committee on the titles andtexts of articles A to E relating to peacefulsettlement of disputes adopted by the DraftingCommittee 145

Report of the Drafting Committee on the text of theannex to the Convention relating to the peacefulsettlement of disputes, adopted by the DraftingCommittee 147

Report of the Drafting Committee on the division ofthe Convention into parts and sections and titlesthereof adopted by the Drafting Committee 147

Adoption of the report of the Committee of the Whole . . 148

Conclusion of the work of the Committee of the whole . 148

RECOMMENDATION OF THE CONFERENCE AND RESOLUTION OF THE GENERAL ASSEMBLY RELATINGTO THE CONFERENCE

Recommendation adopted by the Conference at the closureof its 1977 session

The United Nations Conference on Succession of Statesin respect of Treaties,

Bearing in mind General Assembly resolution 3496(XXX) of 15 December 1975 by which the GeneralAssembly decided to convene a conference of plenipoten-tiaries in 1977 to consider the draft articles on successionof States in respect of treaties, adopted by the InternationalLaw Commission at its twenty-sixth session, and to embodythe results of its work in an international convention andsuch other instruments as it might deem appropriate.

Having met in Vienna from 4 April to 6 May 1977, inaccordance with General Assembly resolution 31/18 of 24November 1976,

Expressing its deep appreciation and gratitude to theGovernment of Austria for making possible the holding ofthe Conference in the capital of Austria,

Noting that due to the intrinsic complexity of thesubject-matter it has not been possible for the Conferencein the time available to conclude its work and to adopt aninternational convention and other appropriate instru-ments, as requested by the General Assembly in theabove-mentioned resolution,

Taking note of the statement of the representative ofAusxria that the invitation of the Government of Austriareferred to in General Assembly resolution 31/18 wouldextend to a resumed session of the Conference, whichwould make it possible for the Conference to continue itswork in Vienna in 1978,

Convinced that one more session would enable it toconclude its work as envisaged by the General Assembly,

1- Adopts the report on its work for the period 4 Aprilto 6 May 1977;

2. Requests the Secretary-General to transmit thatreport to the General Assembly at its thirty-second session;

3. Recommends that the General Assembly decide toreconvene the Conference in the first half of 1978,Preferably in April in Vienna, for a final session of fourweeks.

7th plenary meeting6 May 1977

Resolution 32/47, 8 December 1977

UNITED NATIONS CONFERENCE ON SUCCESSIONOF STATES IN RESPECT OF TREATIES

The General Assembly,

Recalling its resolution 3496 (XXX) of 15 December1975, by which it decided to convene a conference ofplenipotentiaries in 1977 to consider the draft articles onsuccession of States in respect of treaties, adopted by theInternational Law Commission at its twenty-sixth session,*and to embody the results of its work in an internationalconvention and such other instruments as it might deemappropriate,

Recalling further its resolution 31/18 of 24 November1976, by which, after noting that an invitation had beenextended by the Government of Austria to hold the UnitedNations Conference on Succession of States in Respect ofTreaties at Vienna, it had decided that the Conferencewould be held in that city,

Noting that the Conference met at Vienna from 4 Aprilto 6 May 1977, in accordance with the above-mentionedresolutions, but that it was not possible in the timeavailable for the Conference to conclude its work and toadopt an international convention and other appropriateinstruments, as requested by the General Assembly,

Noting further the view of the Conference that one moresession would enable it to conclude its work as envisaged bythe General Assembly,

Bearing in mind the recommendation unanimouslyadopted by the Conference that it should be reconvened atVienna for a final session of four weeks,

Taking into account the invitation of the Government ofAustria, accepted by the General Assembly in resolution31/18, which extends also to a resumed session of theConference,**

1. Takes note of the report of the United NationsConference on Succession of States in Respect of Treat-ies;***

2. Approves the convening of a resumed session of theUnited Nations Conference on Succession of States inRespect of Treaties at Vienna for a period of three weeks,from 31 July to 18 August 1978, with a possible extension

* Official Records of the General Assembly, Twenty-ninthSession, Supplement No. 10 (A/9610/Rev.l), chap. II, sect. D.

** See A/32/141/Add.l.

*** A/CONF.80/15.

of up to one further week should this prove necessary in 4. Expresses its firm conviction that the Conference willthe view of the Conference; thus conclude its work and adopt an international conven-

3. Requests the Secretary-General to make the necess- t i o n a n d o t h e r appropriate instruments as requested by theary arrangements, as provided under General Assembly General Assembly.resolution 31/18, for the efficient servicing of the Confer- 97th plenary meetingence; 8 December 1977

viii

OFFICERS OF THE CONFERENCE AND ITS COMMITTEES

President of the Conference

Mr. Karl Zemanek (Austria).

Vice-Presidents of the Conference

The representatives of the following States: Argentina, Barbados (1977 session),Bulgaria, Cuba, Ethiopia, France, India, Indonesia, Ireland, Italy, Ivory Coast, Malaysia,Mexico, Morocco, Pakistan, Romania, Sudan, Trinidad and Tobago (resumed session),Turkey, Union of Soviet Socialist Republics, United Kingdom of Great Britain andNorthern Ireland, United States of America and Zaire.

General Committee

Chairman: The President of the Conference

Members: The President and Vice-Presidents of the Conference, the Chairman of theCommittee of the Whole and the Chairman of the Drafting Committee.

Committee of the Whole

Chairman: Mr. Fuad Riad (Egypt)

Vice-Chairman: Mr. Jean-Pierre Ritter (Switzerland)

Rapporteur: Mr. Abdul Hakim Tabibi (Afghanistan) (1977 session) Mrs. KuljitThakore (India) (resumed session).

Drafting Committee

Chairman: Mr Mustafa Kamil Yasseen (United Arab Emirates)

Members: The Chairman of the Drafting Committee, Australia, Cuba, DemocraticYemen, France, Guyana, Ivory Coast, Japan, Kenya, Spain, Swaziland, Union of SovietSocialist Republics, United Kingdom of Great Britain and Northern Ireland, United Statesof America and Yugoslavia.

The Rapporteur of the Committee of the Whole participated ex offido during the1977 session and at the resumed session in the work of the Drafting Committee inaccordance with rule 47 of the rules of procedure of the Conference.

Credentials Committee

Chairman: Mr. Jose Sette Camara (Brazil)

Members: Brazil; Chile; Germany, Federal Republic of; Nigeria; Philippines; Qatar;Sudan; Sweden and Union of Soviet Socialist Republics.

Expert Consultant

Sir Francis Vallat, Special Rapporteur on succession of States in respect of treaties,International Law Commission.

SECRETARIAT OF THE CONFERENCE

AT THE RESUMED SESSION*

Mr. Erik Suy, Under-Secretary-General, Legal Counsel of the United Nations{Representative of the Secretary-General of the United Nations).

Mr. Valentin A. Romanov, Director, Codification Division, Office of Legal Affairs(Executive Secretary of the Conference).

Mr. Santiago Torres-Bernafdez, Deputy Director, Codification Division, Office ofLegal Affairs (Deputy Executive Secretary of the Conference; Secretary of theCommittee of the Whole).

Mr. Eduardo Valencia Ospina, Office of Legal Affairs (Assistant Secretary of theConference; Secretary of the Drafting Committee).

Mr. Moritaka Hayashi, Office of Legal Affairs (Assistant Secretary of the DraftingCommittee).

Mr. Roberto Lavalle, Office of Legal Affairs (Assistant Secretary of the DraftingCommittee).

Mr. Raymond Sommereyns, Office of Legal Affairs (Secretary of the CredentialsCommittee; Assistant Secretary of the Committee of the Whole).

Mr. Alexander Borg Olivier, Office of Legal Affairs (Assistant Secretary of theCommittee of the Whole).

* For the secretariat of the Conference at the 1977 session, see Official Records of the UnitedNations Conference on Succession of States in Respect of Treaties, vol. I, Summary records of theplenary meetings and of the meetings of the Committee of the Whole (United Nations publication,Sales No. E.78.V.8), p. xii.

AGENDA

The agenda adopted by the Conference at its 1977 session applied to the proceedingsof the resumed session.*

RULES OF PROCEDURE

The rules of procedure adopted by the Conference at its 1977 session applied to theproceedings of the resumed session.**

* For the text, see Official Records of the United Nations Conference on Succession of States inRespect of Treaties, vol. I, Summary records of the plenary meetings and of the meetings of theCommittee of the Whole (United Nations publication, Sales No. E.78.V.8), p. xiii.

* * For the text, see Official Records of the United Nations Conference on Succession of States inRespect of Treaties... (op. cit.), pp. xiv-xviii.

SUMMARY RECORDS OF THE PLENARY MEETINGS

9th PLENARY MEETING1

Monday, 31 July 1978, at 11.25 a.m.

President: Mr. ZEMANEK (Austria)

Opening of the resumed session by the Presidentof the Conference

1. The PRESIDENT, after welcoming the participants,reminded the Conference that when it had begun its workin 1977, not all of those present had been optimistic aboutthe outcome. The subject under consideration had givenrise to too many, mostly opposing, theoretical concepts,and the apparently conflicting military, political andeconomic interests of States had not augured well for anexpeditious and widely acceptable result. Yet the achieve-ments told a different story: 25 of the International LawCommission's 39 draft articles had been adopted by theplenary Conference, including nearly all the articles relatingto newly independent States; key provisions, such asarticles 16, 17 and 23, had been approved without a vote,both in the Committee of the Whole and in the plenaryConference. Only seven articles had been voted on, inwhole or in part, in the Committee of the Whole, and threein plenary meetings. Only two amendments, both largely ofa clarifying nature, had been adopted, one relating toparagraph 1 of article 20 and the other to paragraph 1 (b)of article 28. Even the drafting changes which the DraftingCommittee had considered necessary had been few and ofminor importance.

2. Those accomplishments had been made possible by theuntiring efforts and spirit of co-operation of the membersof the Committee of the Whole and the Drafting Com-mittee, with the valuable assistance of the Secretariat. Butthey were also proof of the exceptional quality of theInternational Law Commission's draft, for which credit wasdue, in particular, to the two Special Rapporteurs who hadbeen successively entrusted with the topic: Sir HumphreyWaldock and Sir Francis Vallat.

3- But in spite of those impressive results, a tremendousamount of work remained to be done, especially as theGeneral Assembly, in resolution 32/47, had expressed its

firm conviction that the Conference should conclude itswork and adopt an international convention and otherappropriate instruments at the present session. The Con-ference still had to examine 10 articles of the InternationalLaw Commission's draft, as well as proposals for three newarticles. It had to conclude consideration of article 2, whichhad been postponed until the substantive articles had beenadopted. Furthermore, it had to formulate and adopt thetexts of a preamble and final clauses, whose preparationhad been entrusted to the Drafting Committee. Finally,there also remained what had been left over from the 1977session: article 22 bis, on which the Drafting Committeewould be reporting, and articles 6, 7 and 12, which wereunder consideration by the Informal Consultations Groupunder the chairmanship of the Vice-President of theCommittee of the Whole. Both the Drafting Committee andthe Informal Consultations Group should resume work onthose articles as soon as possible.

4. During the resumed session, the Conference wouldthus have to deal with 18 articles, a preamble and the finalclauses. Since the Conference had adopted 25 articlesduring the first part of the session, it was obvious that ithad no time to lose if it was to finish its work in threeweeks. Fortunately, some of the articles not yet discussed,which, except for three, related to the uniting andseparation of States, did not appear to be very contro-versial, at least if judged by the absence of amendments tothem. Others, however, judged by the same criterion, weremore delicate. It might perhaps be advisable to begininformal consultations as soon as possible on the best wayto deal with those articles, particularly article 39 bis.

5. After expressing the hope that a convention would beadopted within the allotted time, he declared open theresumed session of the United Nations Conference onSuccession of States in Respect of Treaties.

6. He then drew the attention of members of delegationsto the list of items proposed for consideration at theopening plenary meeting of the resumed session.2 Thoseitems had to be disposed of before the Committee of theWhole could begin its work. If there was no objection, hewould take it that the Conference agreed to that list.

It was so agreed.

Foi the summary records of the 1st to 8th plenary meetingsheld in 1977, see Official Records of the United Nations Conference°n Succession of States in Respect of Treaties, vol. I, Summaryrecords of the plenary meetings and of the meetings of theCommittee of the Whole, (United Nations publication, SalesNo-E.78.V.B),pp. 1-19.

The list contained the following items: Opening of theresumed session by the President of the Conference; 2. Address bythe Representative of the Secretary-General; 3. Election of oneVice-President (to fill a vacancy owing to the non-participation of aState in the resumed session); 4. Organization of the work of theConference at its resumed session.

Summary records - Plenary meetings

Address by the Representative of the Secretary-General

7. Mr. SUY (Legal Counsel of the United Nations,representing the Secretary-General), welcomed participantsand said that, to stress the importance of the Conference,he would echo the words spoken the previous year by theFederal President of the Republic of Austria, H.E. Dr. Ru-dolph Kirchschlaeger: "The success of the Conference willbe a success for all States and for the United Nations."3

8. As was clear from the decision taken by the GeneralAssembly in regard to the resumed session, the Conferenceenjoyed the support of the community of nations. In itsresolution 32/47 of 8 December 1977, which had beenadopted unanimously, the General Assembly had endorsedthe recommendation of the Conference that the presentsession should be the final one, and had expressed its firmconviction "that the Conference will thus conclude its workand adopt an international convention and other appro-priate instruments as requested by the General Assembly."

9. The participants in the resumed session might findthemselves in a situation of succession, as it were, in regardto the decisions taken the previous year and also to theorganizational and procedural arrangements made to ensurethe efficiency and smoothness of their work. In thatconnexion, he drew attention to the Memorandum by theSecretary-General entitled "Methods of work and proce-dures adopted by the Conference as may be applicable toits resumed session" (A/CONF.80/17).

10. As to the time available to the Conference for itsresumed session, it did not have at its disposal the fiveweeks for which its 1977 session had lasted. As specified inGeneral Assembly resolution 32/47, the Conference wasconvened "for a period of three weeks, from 31 M y to 18August 1978, with a possible extension of up to one furtherweek should this prove necessary in the view of theConference". In making that decision, the GeneralAssembly had been fully aware of the stage reached in thework of the Conference, since it had taken note of thereport of the Conference (A/CONF.80/15) which containedthe necessary information on the matter. During the three-week resumed session, the Committee of the Whole couldhold 17-18 meetings, the Drafting Committee could holdalmost the same number, and an appropriate number ofmeetings could be arranged for the plenary Conference. Inreality, an estimate of the time needed for internationalnegotiations and treaty-making would call for more com-plicated calculations, but a certain time-limit would have tobe set in any case. In estimating the number of meetingswhich various organs of the Conference might have, theSecretariat had not failed to take into account that acertain amount of time would be needed for preparing thetexts of the new convention, the final act of the Conferenceand other instruments for signature, once they had beenadopted, as well as for the official signing ceremony.

11. In a world in motion, as was the world of today,where relationships between States were governed by a

3 Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties... (op. cir,),p. 2, 1st plenarymeeting, para. 13.

steadily increasing number of treaties in the political,economic, cultural and other spheres, the orderly andsmooth succession of States in respect of treaties wasimportant for the maintenance of the international legalorder, its stability and its dynamism and, ultimately, for therealization and consolidation of peaceful and friendlyrelations between States. Succession entailed an element ofcontinuity, and continuity of treaties meant continuity ofrelations between States regulated by treaties, in otherwords, continuity of their co-operation. The primarypurpose to be achieved by the conclusion of the newconvention was to ensure the maximum attainable con-tinuity in treaty relations in the event of a succession ofStates. As stated by the General Assembly in resolution31/18, "the successful codification and progressive devel-opment of the rules of international law governing suc-cession of States in respect of treaties would contribute tothe development of friendly relations and co-operationamong States, irrespective of their constitutional and socialsystems, and would assist in promoting and implementingthe purposes and principles set forth in Articles 1 and 2 ofthe Charter". The future convention would be one moreinstrument enhancing the role of treaties in the communityof nations. The States parties to the Vienna Convention onthe Law of Treaties,4 which embodied all the basic rules ofinternational law governing treaties, had reaffirmed "thefundamental role of treaties in the history of internationalrelations".5 Recent efforts at the national level seemed alsoto be aimed at emphasizing the paramount importance oftreaties in the furtherance of friendly relations and co-operation among States. In 1977, the General Assemblyhad decided to scrutinize the treaty-making process, whichopened up a new prospect for improvements in thatprocess. The future convention was thus coming into beingas an integral part of an over-all development in the law oftreaties, aimed at adding a new dimension to mankind'squest for peace through the rule of law in internationalrelations. That development had its origins in the UnitedNations Charter in which the peoples of the United Nationshad proclaimed their determination "to establish conditionsunder which justice and respect for the obligations arisingfrom treaties and other sources of international law can bemaintained". He hoped that that determination of thepeoples of the United Nations would be a source ofinspiration to the Conference and would guide it in itswork.

Election of one Vice-President

12. The PRESIDENT explained that the need to elect aVice-President arose from the fact that Barbados hadannounced that it would not be able to take part in theresumed session. The Group of Latin American States wastherefore required to nominate a candidate.

4 See the text of the Convention in Official Records of theUnited Nations Conference on the Law of Treaties, Documents °lthe Conference (United Nations publication, Sales No. E.70.V.5),p. 288.

5 Ibid., p. 289, Introductory paragraph to the preamble.

11th plenary meeting - 7 August 1978

Organization of the work of the Conferenceat its resumed session (A/CONF.80/17)

13. The PRESIDENT said he assumed that participantswould wish to discuss the contents of the document"Methods of work and procedures adopted by the Con-ference as may be applicable to its resumed session"(A/CONF.80/17) in their respective regional groups. Hesuggested that a chairman or, at least a provisional speakershould be nominated for each group.

The meeting rose at 11.55 a.m.

10th PLENARY MEETINGMonday, 31 July 1978, at 3.25p.m.

President: Mr, ZEMANEK (Austria)

Election of one Vice-President (continued)

1. The PRESIDENT said that, if there were no objection,he would take it that the Conference approved the proposalby the Chairman of the Group of Latin American Statesthat the representative of Trinidad and Tobago be elected aVice-President of the Conference in place of the represen-tative of Barbados.

It was so agreed.

Organization of work

[Agenda item 10]

2. The PRESIDENT drew attention to the memorandumby the Secretary-General "Methods of work and proceduresadopted by the Conference as may be applicable to itsresumed session" (A/CONF.80/17). He had been informedby the chairmen of four regional groups that it was theirhope that the utmost effort would be made to complete thework of the Conference in three weeks. He had replied thatthe secretariat and the Bureau certainly shared that hope,but that control over the duration of the Conference wasentirely in the hands of delegations.

3- Mr. RYBAKOV (Union of Soviet Socialist Republics)said that, in principle, his delegation approved the ideasconcerning the methods of work of the Conference thatwere set out in the memorandum by the Secretary-General.It would indeed be the most rational course for theDrafting Committee of the Committee of the Whole tocommence work forthwith on the remaining articles of thedraft, particularly articles 30 to 39. His delegation stronglyfavoured the suggestion made by the President at the 9thplenary meeting that delegations should hold consultations*n. advance of official meetings on the questions that werestill outstanding. He hoped that all delegations wouldcontinue to adhere to the trend of the overwhelming

majority of participants in the 1977 session to retain as faras possible the text of the draft articles prepared by theInternational Law Commission (see A/CONF.80/4). If thatwere done, the Conference should have no difficulty incompleting successfully the task entrusted to it by theGeneral Assembly. To assist in the achievement of that aim,his delegation would not insist on the amendments to thedraft articles which it had proposed during the 1977session. While it was no secret that the success of theConference depended on the solution of certain difficultproblems that were still under discussion, his delegationbelieved that the main lines of the future Convention hadalready been laid down, in particular through the adoptionof the "clean slate" principle in relation to newly independ-ent States that emerged as a result of the process ofdecolonization. His delegation had serious doubts as to theadvisability of encumbering the International Law Com-mission's draft with references to matters that had more todo with the law of treaties or questions that had long beenthe subject of unsuccessful debate at other internationalconferences, than with succession of States.

4. The PRESIDENT said that, if there was no objection,he would take it that the Conference wished to take note ofthe memorandum submitted by the Secretary-General indocument A/CONF.80/17.

It was so agreed.

The meeting rose at 3.35 p. m.

11th PLENARY MEETINGMonday, 7th August 1978, at 3.45 p.m.


Tribute to the memory of His Holiness, the late PopePaul VI

1. The PRESIDENT said that delegations had cometogether to pay a tribute to the memory of His Holiness,the late Pope Paul VI. The outstanding feature of thepapacy of Paul VI was his concern for peace and socialjustice in the world, in which he was following a longtradition which had culminated in his predecessor's re-markable encyclical Pacem in terns. The early years of hispapacy had been dedicated to the conclusion of VaticanCouncil II and the implementation of its decisions, but asearly as 1967 he had manifested his concern for thenecessity of peaceful development in his encyclical Popu-lorum progressio. In that year he had established theobservance of the first of January as a "day of peace" forwhich he issued a yearly message dealing with subjects suchas the promotion of human rights and reconciliation. Hislast message, in 1978, had been "No! to force andviolence! Yes! to peace! ". He had called upon all humanbeings of good will, regardless of their faith, to establish

Summary records — Plenary meetings

true peace founded on justice, human dignity and brotherlylove. Peace was in his view a dynamic process for whichman required education. His messages for the day of peacewere supplemented by unprecedented journeys round theworld, including a visit to United Nations Headquarters inNew York. He had deemed it both his privilege and his dutyas a spiritual authority to appeal to the individual, and notmerely to deplore the shortcomings of others but to askhimself what he personally was doing for the cause of peaceand social justice.

On the proposal of the President, members of theConference observed one minute's silence in tribute to thememory of His Holiness, the late Pope Paul VI.

2. Monsignor CAGNA (Holy See) said he wished to thankthe President and participants in the Conference for theirtribute to Pope Paul VI, who throughout the 15 years ofhis difficult pontificate had worked untiringly and prayedfor peace and understanding among all the nations of theworld and for their integral development and welfare.

The meeting rose at 3.55 p.m.

12th PLENARY MEETINGThursday, 17 August 1978, at 3.30 p.m.


Credentials of representatives to the resumed session of theConference: Report of the Credentials Committee(A/CONF.80/18/Rev.l)

1. Mr. SETTE CAMARA (Brazil), Chairman of theCredentials Committee, introduced the report of theCredentials Committee (A/CONF.80/18/Rev.l). The ninemembers of the Committee, which had been established bythe Conference at its 2nd plenary meeting,1 on 29 April1977, in accordance with rule 4 of the rules of procedure(A/CONF.80/8), had met again on 16 August 1978 toexamine the credentials of the representatives at theresumed session of the Conference. The Committee had hadbefore it a memorandum by the Executive Secretary of theConference dated 15 August 1978, concerning the status ofthe credentials of the representatives of the 94 Statesparticipating in the resumed session.

2. Paragraph 3 (a) of the report listed 74 States whichhad communicated formal credentials to the Executive

Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties, vol. I Summary records ofthe plenary meetings and of the meetings of the Committee of theWhole (United Nations publication, Sales No. E.78.V.8), p, 4,2nd plenary meeting, paras, 8-9.

Secretary, in accordance with rule 3 of the rules ofprocedure; those credentials had been issued either by thehead of State or Government or by the Minister for ForeignAffairs. Paragraph 3 (6) listed six States the designation ofwhose representatives had been communicated to theExecutive Secretary of the Conference by a cable from theForeign Minister concerned. Paragraph 3 (c) listed 10 Statesthe designation of whose representatives had been com-municated to the Executive Secretary of the Conference bynote verbale or letter from the Embassy or PermanentMission of the State concerned. Paragraph 3 (d) listed fourStates from which no communications had been received,but whose representatives had assured the Executive Sec-retary of the Conference that communications would beforthcoming.

3. Since the preparation of the report, Switzerland,which was one of the States listed in paragraph 3 (d), andSaudi Arabia, which was one of the States listed inparagraph 3 (c), had submitted credentials to the ExecutiveSecretary.

4. The Credentials Committee had decided to accept thecredentials of the representatives referred to in paragraph3 (a). On the proposal of its Chairman, it had decided, inthe light of past practice and as an exceptional measure, toaccept the communications received or to be received withregard to the delegations referred to in paragraph 3 (b), (c)and (d) in lieu of formal credentials, it being understoodthat such credentials would be submitted as soon aspossible.

5. The representatives of three States participating in thework of the Credentials Committee had made statementswhich were recorded in paragraphs 5 and 6 of its report.

6. Mr. NATHAN (Israel) said that the Credentials Com-mittee had accepted his delegation's credentials afterconfirming that they were formal credentials in accordancewith rule 3 of the rules of procedure. His delegationtherefore objected to the reservations made by the repre-sentative of Qatar, as recorded in paragraph 5 of the reportunder consideration. Such reservations were inadmissible;they were irrelevant and were designed solely to introducepolitics into the work of the Conference.

7. Under rule 4 of the rules of procedure, the CredentialsCommittee had to examine the credentials of represen-tatives and report to the Conference. That examinationconsisted of verifying that the credentials in question metthe procedural requirements set forth in rule 3 of the rulesof procedure. Reservations of a political nature, such asthose which appeared in paragraph 5 of the report underconsideration, were therefore altogether extraneous to theterms of reference of the Credentials Committee and hadno place in its report.

8. His delegation was fully entitled to participate in theConference by virtue of the invitation extended to theState of Israel by the Secretary-General of the UnitedNations in accordance with General Assembly resolution31/18, in which the Secretary-General had been requested


to invite all States to participate in the Conference. Hisdelegation's right to participate in the work of theConference could not therefore be questioned.

9. With regard to the details of the reservations made bythe representative of Qatar, his delegation did not claim torepresent ''Palestine". It represented the State of Israel andthe inhabitants of that State, whether Jews, Arabs orothers. His delegation also rejected all the other allegationsmade in the reservations expressed in the CredentialsCommittee. The Government of Israel had already stated itsviews on those questions in the General Assembly, theSecurity Council and other bodies. In any case, theConference was not competent to discuss those matters.

10. His delegation would not ask for paragraph 5 of thereport under consideration to be put to the vote, but itcategorically rejected the reservations recorded in it.

11. Mr. ZAKI (Sudan) said he endorsed the reservationsmade by the representative of Qatar in the CredentialsCommittee. His delegation's views concerning the cre-dentials of the Israeli delegation had been recorded in theCommittee's previous report (A/CONF.80/12, para. 5). Theparticipation of Israel in the Conference should not beconsidered as implying recognition on the part of theSudan.

12. Mr. DOGAN (Turkey) said that the leader of theTurkish community in Cyprus had sent a letter to thePresident of the Conference dealing with certain aspects ofthe question of the representation of Cyprus. It would bedesirable for copies of that letter to be made available tointerested delegations.

13. Mr. ROVINE (United States of America) said that hisdelegation deeply regretted that political considerationsconcerning Israel and Cyprus had been introduced into thedebate. As his delegation had already stated, the CredentialsCommittee should confine itself to ascertaining whether thecredentials which it examined were in order; it was notempowered to discuss questions such as those dealt with inparagraph 5 of the report. It was to be hoped that in thefuture, such questions would not be raised in credentialscommittees.

14. Mr. AL-ROUME (Saudi Arabia) said he shared theviews expressed by the representative of Qatar in theCredentials Committee. Israel could not represent the ArabPopulation of the occupied territories.

Consideration of the question of the succession of States inrespect of treaties in accordance with resolutions 3496(XXX) and 31/18 adopted by the General Assembly on15 December 1975 and 24 November 1976

[Agenda item 11] (continued)2

DRAFT RESOLUTION A/CONR80/L.1

16. The PRESIDENT said that, since the issue ofdocument A/CONF.80/L.1, a number of States had joinedthe sponsors of the draft resolution which it contained.

17. Mr. SIDDIQUI (United Nations Council for Na-mibia), introducing draft resolution A/CONF.80/L.1 onbehalf of the sponsors, noted that at the 1977 session of theConference, the delegation of the United Nations Councilfor Namibia had expressed doubts about certain articles andhad submitted a proposal (A/CONF.80/DC.13) for theinclusion in the preamble to the convention of a paragraphstating that the Conference took into account GeneralAssembly resolution 2145 (XXI), by which the Assemblyhad terminated the Mandate of South Africa over Namibiaand had assumed direct responsibility for the Territoryuntil its independence.

18. At the 38th meeting of the Committee of the Whole,on 1 August 1978, the delegation of the United NationsCouncil for Namibia had pressed its proposal; it hadreferred to recent events related to Namibia and hadadduced further reasons why the Conference, together withother organs of the international community, should helpto protect the legitimate interests of the internationalTerritory of Namibia and of its people.3

19. A number of delegations had subsequently assuredthe delegation of the United Nations Council for Namibiaof their full support, but had suggested that a resolutionhaving the same objectives as the Council's proposal wouldbetter serve the interests of Namibia and of the Conference.It had also been pointed out that if Namibia became anindependent State in the near future, the preamble to theconvention would be anachronistic. After consulting severalother delegations from various regional groups, theCouncil's delegation had realized that they shared that viewand had therefore decided to withdraw its proposalconcerning the preamble to the convention (A/CONF.80/DC.13) and to replace it by draft resolution A/CONF.80/L.1.

20. In the preamble to that draft resolution, referencewas made to resolutions of the General Assembly and theSecurity Council concerning the question of Namibia andto the advisory opinion of the International Court ofJustice, in order to stress the illegal nature of theoccupation of the territory of Namibia by the racist regime

15. The PRESIDENT said that, if there was no objection,he would take it that the Conference agreed to adopt thereport of the Credentials Committee (A/CONF.80/18/Rev.l).

It was so decided.

For the discussion of agenda item 11 by the Conference at the1977 session, see Official Records of the United Nations Conferenceon Succession of States in Respect of Treaties, vol. I {op. cit.),pp. 8-12, 5th plenary meeting, paias. 6-38 and 6th plenary meeting,paias. 1-2.

3 See 38th meeting, paras. 62-70,


of South Africa, its universal rejection and its con-sequences. The draft resolution made no attempt tointroduce any new elements, but merely reaffirmed the willof the international community, as expressed in variousGeneral Assembly and Security Council resolutions. Thatreaffirmation was particularly necessary at the present time,in order to show that the entire international communitysupported the people of Namibia and was in sympathy withits struggle against the maintenance of the illegal occu-pation of its territory by South Africa.

21. It would be seen from the operative part of the draftresolution that, in view of the illegal character of theoccupation of the Territory of Namibia by South Africa,South Africa was not the predecessor State of the futureindependent State of Namibia in respect of the treatyobligations assumed by South Africa after 27 October 1966and that all the relevant articles of the future conventionmust be interpreted in conformity with United Nationsresolutions on the question of Namibia.

22. That point of view had also been upheld by theworld's supreme judicial organ, the International Court ofJustice, which had stated categorically in its advisoryopinion of 21 June 1971* that member States were underobligation to abstain from entering into treaty relationswith South Africa in all cases in which the Government ofSouth Africa purported to act on behalf of or concerningNamibia. With respect to existing bilateral treaties, memberStates must abstain from invoking or applying those treatiesor provisions of treaties concluded by South Africa onbehalf of or concerning Namibia which involved activeintergovernmental co-operation. Member States were underobligation to abstain from sending diplomatic or specialmissions to South Africa including in their jurisdiction theTerritory of Namibia, to abstain from sending consularagents to Namibia, and to withdraw any such agents alreadythere. They should also make it clear to the South Africanauthorities that the maintenance of diplomatic or consularrelations with South Africa did not imply any recognitionof its authority with regard to Namibia. Finally, memberStates were under obligation to abstain from entering intoeconomic and other forms of relationship or dealings withSouth Africa on behalf of or concerning Namibia whichmight entrench its authority over the Territory.

23. It followed from those statements of the Inter-national Court of Justice that the termination of theMandate and the declaration of the illegality of SouthAfrica's presence in Namibia were opposable to all States inthe sense of barring erga omnes the legality of a situationwhich was maintained in violation of international law. Notonly were all member States under obligation to abstainfrom all treaty relations with South Africa concerning theterritory of Namibia, but no treaty or provision of thatkind could have force of law or could be invoked or appliedby any party. That was precisely the aim of the proposal ofthe United Nations Council for Namibia that the Con-

Legal Consequences for States of the Continued Presence ofSouth Africa in Namibia (South West Africa) notwithstandingSecurity Council Resolution 276 (1970), Advisory Opinion, I.C.J.Reports 1971, p. 16.

ference should declare South Africa not to be the prede-cessor State in the case of Namibia. The draft resolutiontherefore confirmed the position taken by the StatesMembers of the United Nations, as supported by itssupreme judicial organ.

24. Mr. OSMAN (Somalia) emphasized the importance ofthe draft resolution, not only to his own delegation, but toall the delegations of non-aligned and other freedom-lovingcountries. The draft was intended to assist the people ofNamibia in its legitimate struggle against the racist regimeof South Africa by reaffirming the territorial integrity andunity of Namibia in accordance with the relevant UnitedNations resolutions.

25. His delegation shared the concern of the UnitedNations Council for Namibia with regard to the exceptionsto the application of the "clean slate" principle, in view ofthe difficulties that such exceptions would entail for thepeople of that Territory, who were victims of dismember-ment and illegal colonial occupation. His delegation wishedto express its continued sense of solidarity with theNamibian people.

26. The draft resolution constituted a reaffirmation ofvarious resolutions and decisions whereby the GeneralAssembly had demanded the total and unconditionalwithdrawal of South Africa from the Territory of Namibiaand had declared that Walvis Bay formed an integral part ofNamibia. The draft resolution should enable the futureindependent State of Namibia to benefit from the "cleanslate" principle and preclude exceptions to that principlewhich might be prejudicial to Namibia in view of thecurrent controversy about Walvis Bay, an area whichhistorically and legally formed an integral part of Namibiaand must continue to do so. Once Namibia becameindependent, it could not succeed to obligations arising outof territorial arrangements made by a colonial regime anddesigned to serve and safeguard the interests of SouthAfrica to the detriment of those of the people of Namibia.

27. Sir Ian SINCLAIR (United Kingdom) pointed outthat, under General Assembly resolution 3496 (XXX), thetask of the Conference was to "consider the draft articleson succession of States in respect of treaties and to embodythe results of its work in an international convention andsuch other instruments as it may deem appropriate". It wasimportant to bear in mind the terms of reference of theConference at a time when its work was coming to an endand when it had before it draft resolution A/CONF.80/L.1.

28. His delegation was aware that the future of Namibiawas a matter of concern to all delegations, especially thoseof African countries. In the Security Council, the UnitedKingdom had joined with other States in trying to find asolution to that problem, which was one of the mostdifficult currently facing the international community. TheSecurity Council had recently adopted two resolutionswhich held out hope of a rapid and internationallyacceptable solution to the problem. In that connexion, theUnited Kingdom Secretary of State for Foreign andCommonwealth Affairs had expressed before the Security


Council his gratification at the fact that his Government,together with those of Canada, France, the Federal Re-public of Germany and the United States of America, hadsucceeded in helping Africa to solve one of its mostdifficult problems; it had been due to the goodwill of allthe parties and to the wisdom of the front-line States that apeaceful and internationally acceptable solution had beenfound. The Security Council was still considering thequestion of Namibia.

29. In those circumstances, his delegation considered thatthe resolution under consideration fell outside the terms ofreference of the Conference, whose task was to prepare aconvention on succession of States in respect of treaties,not to adopt resolutions on individual cases of succession.His delegation's objection was therefore one of principle: itdid not contest the right of the Conference to examine sucha draft resolution, but its right to adopt it. That was whythe United Kingdom delegation could not and would notparticipate in a vote or in any other procedure for theadoption of resolution A/CONF.80/L.1. Moreover, even ifit had considered that the Conference was competent toadopt the draft resolution, the wording of that text,especially of the first operative paragraph and, even moreso, of the second operative paragraph, would have caused itsome difficulty.

30. Like the African delegations, the United Kingdomdelegation hoped that Namibia, on attaining independence,would be allowed to benefit from the application of the"clean slate" principle. As a newly independent State,Namibia would doubtless have to resolve problems ofsuccession in respect of treaty obligations, but it did notseem right to prejudge the position of the independent stateof Namibia on that subject.

31. Mr. ROVINE (United States of America) said thatthe United States Government had been endeavouring forsome time to facilitate Namibia's accession to indepen-dence. Thus, together with Canada, France, the FederalRepublic of Germany and the United Kingdom, the UnitedStates was negotiating with South Africa on the question ofNamibia. His delegation naturally understood the under-lying motives for the draft resolution under discussion and,indeed, only the last sentence of that text presented it withany difficulty. As he saw it, the terms of reference of theConference were to consider the draft articles prepared bythe International Law Commission and to adopt a con-vention on succession of States in respect of treaties. It hadsurely not been the intention of the General Assembly, inconvening the Conference, to authorize it to take decisionson individual cases. The fact that Namibia was a special casedid not mean that the Conference could exceed its terms ofreference. Moreover, the adoption of the draft resolutionniight be prejudicial to the efforts of the Security Council,which was considering the question. His delegation there-tore regretted that it could not take part in a vote or anyother decision on the draft resolution.

32- Mr. TREVIRANUS (Federal Republic of Germany)Said it was self-evident that all delegations without excep-tion were anxious to see a sovereign and independent

Namibia entering the international arena in the near future.His country was contributing to the efforts being made tothat end by the Security Council, of which it was currentlya member. He did not believe, however, that a codificationconference to which the General Assembly had entrusted aspecific task was the appropriate forum in which toconsider a question with which several United Nationsorgans were already dealing. The Conference should nottake decisions on questions which did not fall within itscompetence or seek solutions to specific problems, howeverserious they might be. His delegation did not question theright of the majority to make a declaration on the subjectof Namibia or to adopt the draft resolution in question, butfor its part it was unfortunately unable to participate in thevote on the text or in its adoption by any other means.

33. Mr. DOGAN (Turkey) said he was in favour of draftresolution A/CONF.80/L.1.

34. Mr. RYBAKOV (Union of Soviet Socialist Republics)said he unreservedly supported the text under consider-ation. The Conference was competent to examine andadopt the draft before it. There could be no doubt that thepresence of South Africa in Namibia was illegal. That illegaloccupation must therefore be brought to an end andrespect for the territorial integrity of Namibia must beensured. His delegation would vote for the draft resolutionif it was put to the vote.

35. Mr. DUCULESCU (Romania) said he endorsed thedraft resolution, being convinced that the internationalcommunity should support the struggle of the Namibianpeople by affording it legal, moral and political assistance.His delegation did not agree with the view taken by thedelegations of the United Kingdom, the United States andthe Federal Republic of Germany, since although theinternational community was rightly making efforts at thepolitical level to facilitate Namibia's accession to indepen-dence, it should not neglect the legal means available. Thus,the representative of the United Nations Council forNamibia had demonstrated in his statement that certainarticles of the convention could not apply to Namibia,whose situation exhibited special characteristics and calledfor a separate solution. There was no predecessor State inthe case of Namibia; South Africa merely exercised de factopower over the Territory, and that against the will of theinternational community. South Africa's attempts to seizeWalvis Bay threatened the territorial integrity of Namibia.That was why the sponsors of the draft resolution wereproposing that South Africa should not be recognized asthe predecessor State of the future independent State ofNamibia. His delegation considered that the draft resolutionwas well-founded, in view of the legal characteristics of thecase and would therefore vote for the draft, whichcontributed to the development of international law and tothe solution of the particular problems of Namibia.

36. Mr. KOROMA (Sierra Leone) said that, in theopinion of his delegation, which was one of the sponsors ofdraft resolution A/CONF.80/L.1, the Conference shouldwork together with other United Nations organs and the


international community to protect and maintain thelegitimate interests of the international Territory of Na-mibia and of the Namibian people. In the draft resolution,the sponsors cited important resolutions of the GeneralAssembly, namely resolutions 2145 (XXI) and 2248 (S-V),as well as the advisory opinion handed down in 1971 by theInternational Court of Justice, which showed that MemberStates should put an end to the illegal situation obtaining inNamibia. Moreover, in its resolution 276 (1970), theSecurity Council had reaffirmed the General Assembly'sdecision to terminate the Mandate of South Africa over theterritory of Namibia and to assume direct responsibility forthe Territory until its independence. When taking thatdecision, the Security Council had also declared that thepresence of the South African authorities in Namibia wasillegal and that all acts taken by the Government of SouthAfrica concerning Namibia were illegal and invalid. In itsresolution 282 (1970), the Security Council had calledupon all States to take the necessary measures. In itsadvisory opinion of 1971, the International Court ofJustice had declared that States Members of the UnitedNations should recognize the illegality of the presence ofSouth Africa in Namibia. The Court had confined itself togiving advice on those dealings with the Government ofSouth Africa which, under the Charter of the UnitedNations and general international law, should be consideredas inconsistent with the declaration of the Security Council.That applied in particular to treaty relations in all cases inwhich the Government of South Africa purported to act onbehalf of or concerning Namibia.

37. The draft convention was intended to govern thetransfer of rights and obligations arising from treaties in thecase of the emergence of a newly independent State or ofthe uniting or separation of States. The necessity of givingnewly independent States the option of choosing fromamong the treaties of the predecessor State those whichthey would maintain in force lay at the root of the draftconvention, since no country could be expected to acceptcommitments entered into by another State without firstbeing able to express its own will. As the representative ofBrazil had stated at the 1977 session, a newly independentState should be bom free, should be able to benefit fromthe "clean slate" principle and should not be bound byunjust agreements.5 That held true of Namibia, whichcould not be deprived of its only port, Walvis Bay, anintegral part of its territory.

38. In the light of these considerations, it was onlynatural, for legal reasons and in a spirit of justice, toprovide that in the case of Namibia the relevant articles ofthe convention should be interpreted in conformity withthe relevant United Nations resolutions, under which SouthAfrica could not be regarded as the predecessor State ofNamibia after 1966.

39. Mr. MUSEUX (France) said that he fully shared theviews expressed by the representatives of the United

Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties . . . (op. cit.j, p. 32,3rd meeting, para. 46.

Kingdom, the United States of America and the FederalRepublic of Germany, which seemed eminently sensible.His Government, too, was participating in the negotiationson the question of Namibia with a view to reaching aspeedy solution so that Namibia could achieve indepen-dence as soon as possible. However, his delegation felt thatit would be unfair to prejudge decisions of a futureNamibian Government, and that the Conference should nottake a decision on the draft resolution. In order to ensurethe proper functioning of the Conference and respect forthe credentials given by Governments to their represen-tatives, it was important that those representatives shouldnot exceed their terms of reference and encroach on thework of the political bodies that were dealing with thequestion, in particular the Security Council.

40. For those reasons, his delegation would be unable toparticipate in the decision on the draft resolution.

41. Mr. de BLOIS (Canada) said that the draft resolutionunder discussion raised a number of problems: it sought tointerpret a convention that the Conference had not yetadopted and the terms of reference of the Canadiandelegation to the Conference did not cover consideration ofthe draft resolution. Furthermore, his country was playinga part in other bodies that were dealing with the questionof Namibia. For those reasons, his delegation would notparticipate in any decision by the Conference concerningthe draft resolution.

42. Mr. MAHUNDA (United Republic of Tanzania) saidthat his delegation fully supported the draft resolutionbefore the Conference, being one of its sponsors. As afront-line State, his country had always regarded theNamibian people's struggle as its own struggle and it wouldcontinue to make sacrifices until Namibia had attained itsindependence. Since the draft resolution merely put for-ward the international community's view of the Namibianquestion, his delegation could not understand why certaindelegations which, in other bodies, were endeavouring tosolve the Namibian problem, should find the draft resol-ution difficult to accept.

43. As far as his delegation was concerned, Namibia was aUnited Nations Territory, because the United Nations hadterminated South Africa's Mandate over that Territory. Thelast operative paragraph was a logical consequence of thestatus of Namibia and should not cause any difficulty.

44. Mr. VREEDZAAM (Suriname) said that since theConference was competent to define what was understoodby "predecessor State" and "successor State", it was alsocompetent to declare that South Africa was not thepredecessor State of the future independent State ofNamibia, because it was occupying the territory of Namibiaillegally. His delegation was a sponsor of the draft resol-ution under discussion.

45. Mr. MAKAREVICH (Ukrainian Soviet SocialistRepublic) said that South Africa's illegal occupation of the

Territory of Namibia was one of the major preoccupationsof the United Nations and it was therefore essential for "^


Conference to give its opinion on that vital problem. Hesupported draft resolution A/CONF.80/L.1, which wouldhelp the Namibian people in its fight for independence.

46. Mr. PAPADOPOULOS (Cyprus) said he wished toreserve the right to reply at a later stage to the statementmade by the representative of Turkey concerning the reportof the Credentials Committee (A/CONF.80/18/Rev.l)which contained no reservation relating to the credentialsof the delegation of Cyprus.

47. His delegation wholeheartedly supported draft resol-ution A/CONF.80/L.1, because it considered that SouthAfrica should end its illegal occupation of Namibia and itattached great importance to the implementation of therelevant resolutions of the United Nations, in particularSecurity Council resolutions 385 (1976), which had re-affirmed the territorial integrity and unity of Namibia, and432 (1978) in which the Security Council had taken noteof paragraph 7 of General Assembly resolution 32/9 D,declaring Walvis Bay to be an integral part of Namibia. Hisdelegation hoped that the statements which had been madein support of those resolutions were not empty words, butdemonstrated a sincere desire to apply the principles ofinternational law which were involved. His delegationfirmly supported those principles and would therefore votein favour of the draft resolution on Namibia.

48. Mr. JOMARD (Iraq) said he supported draft resol-ution A/CONF.80/L.1, for the reasons given by therepresentatives of Somalia and Sierra Leone.

49. Mr. STUTTERHEIM (Netherlands) said that theposition of his country on Namibia was well known andthere was no need for it to be repeated at the time. For thereasons given by the United Kingdom representative, hisdelegation would not participate in the vote on draftresolution A/CONF.80/L.1. He was sure, however, thatNamibia would have the benefit of the "clean slate"principle.

50. Mr. BENDIFALLAH (Algeria) said that his countryhad always supported the cause of peoples struggling forself-determination and had declared itself in favour of theterritorial integrity of Namibia and the freeing of its peoplefrom the racist yoke. In his opinion, the Conference wascompetent to deal with the Namibian problem and Namibiaought to benefit from the "clean slate" principle. HeWholeheartedly supported draft resolution A/CONF.8Q/L.1and appealed to members of the Conference to adopt it byan overwhelming majority.

51- Mr. de OLIVEIRA (Angola) said that his country,which was one of the front-line States, had alwayssupported the Namibian people and would continue to give*t unqualified support in face of the acts of aggressionPerpetrated against it by South Africa. Since the inter-national community recognized that South Africa's pres-ence on Namibian territory was illegal, he found it hard tounderstand why certain delegations could not support draftresolution A/CONF.80/L.1. He, too, appealed for the draft^solution to be adopted by a very large majority.

52. Mr. YACOUBA (Niger) said that, while the task ofthe Conference was to prepare an international conventionon succession of States in respect of treaties, it had a dutyto examine all aspects of the question. The situation ofNamibia might pose a difficult problem when the Territorybecame independent. The sponsors of draft resolutionA/CONF.80/L.1 had decided, in a spirit of conciliation, notto insist on the inclusion of an article on Namibia in thedraft convention. He was surprised, therefore, that theirinitiative had not met with a response from certaindelegations. He requested a roll-call vote on draft resolutionA/CONF.80/L.1.

53. Mr. MASUD (Pakistan) said that the view that theConference was not competent to examine or adopt draftresolution A/CONF.80/L.1 was based on a very narrowinterpretation of the Conference's terms of reference. In hisopinion, the draft resolution was relevant to the subjectbeing dealt with by the Conference and was consistent withthe advisory opinion of the International Court of Justicein the case of Namibia. The Conference was thereforeperfectly competent to consider the draft resolution andshould adopt it.

54. Mr. RITTER (Switzerland) said that his delegationwould abstain in the vote on draft resolution A/CONF.80/L.I because his country was not a Member of the UnitedNations and did not, therefore, feel able to pronounce on aquestion deriving from resolutions in the adoption of whichit had not participated. That position was consistent withthe position which his delegation had taken at the 1977session concerning the request of the United NationsCouncil for Namibia for active participation in the Con-ference. That position in no way affected his country'ssympathetic attitude towards the aspirations of the Na-mibian people.

55. Mr. ABOU-ALI (Egypt) expressed his unqualifiedsupport for the terms and content of draft resolutionA/CONF.80/L.1. He believed that the Conference wascompetent to consider and adopt the draft resolution, sincethe resolution concerned the interpretation to be given tothe provisions of the convention in the case of anindependent Namibia, in the light of the relevant resol-utions of the United Nations and the advisory opinion ofthe International Coiirt of Justice. In his opinion, aConference which had been given the task of preparing aconvention on succession of States in respect of treaties wascompetent to express its opinion on the application of thatconvention in a specific case which was of great importanceat the international level and more especially in the Africancontext.

56. Mr. MAIGA (Mali) said there could be no doubt thatdraft resolution A/CONF.80/L.1, of which his delegationwas a sponsor, fell within the terms of reference assigned tothe Conference by the General Assembly. He pointed outthat it was the very countries which had advocated resort tothe International Court of Justice for the settlement ofdisputes concerning the interpretation of the conventionthat were now refusing to abide by the advisory opinion ofthe Court in the case of Namibia.

10 Summary records - Plenary meetings

57. Mr. RANJEVA (Madagascar) expressed the view that,contrary to the assertions of certain delegations, draftresolution A/CONF.80/L.1 fell within the terms of refer-ence of the Conference, since the Conference had to studyall aspects of the problem of succession of States., of whichthe question of Namibia was a specific manifestation. TheConference could not, therefore, evade that problemwithout failing in its responsibilities. The sponsors of thedraft resolution had wished to include an article onNamibia in the body of the draft convention, but, in a spiritof compromise, had agreed merely to submit a draftresolution.

58. Since, according to the text of article 6 adopted bythe Committee of the Whole,6 the future conventionapplied only "to the effects of a succession of Statesoccurring in conformity with international law and, inparticular, the principles of international law embodied inthe Charter of the United Nations", he did not see howSouth Africa could possibly be regarded as the predecessorState of Namibia.

59. Mr. KONADU-YIADOM (Ghana) said he consideredthat the Conference was competent to examine and adoptdraft resolution A/CONF.80/L.1.

60. Mr. FARAHAT (Qatar) said that he, too, consideredthe Conference to be competent to adopt a draft resolutionon Namibia, since all nations should co-operate in puttingan end to the illegal occupation of Namibia by SouthAfrica. He unreservedly supported draft resolution A/CONF.80/L.1, for it seemed obvious to him that SouthAfrica could not be the predecessor State in the case ofNamibia.

61. Mr. DIENG (Senegal) thanked the representative ofthe United Nations Council for Namibia for his clear andcomprehensive analysis of the situation. He was surprisedthat some delegations could still doubt the competence ofthe Conference to consider draft resolution A/CONF.80/L.I. In his view, the legal arguments adduced by thosedelegations in fact concealed certain specific interests, sincethe draft resolution clearly fell within the competence ofthe Conference, and the fact that the Security Council wasdealing with the question of Namibia did not preclude theConference from taking a decision on it. He thereforeappealed to delegations to adopt the draft resolution by anoverwhelming majority.

62. Mr. AHIPEAUD (Ivory Coast) said he supporteddraft resolution A/CONF.80/L.1, of which his delegationwas a sponsor.

63. Mr. MADINGA (Swaziland) said that he, too, sup-ported draft resolution A/CONF.80/L.1, which reaffirmedthe territorial integrity of Namibia. In his opinion, the draftresolution clearly fell within the terms of reference of theConference.

' See 53rd meeting, para. 35.

64. The PRESIDENT announced that the United ArabEmirates, Indonesia, Iraq and Tunisia had asked to beincluded among the sponsors of draft resolution A/CONF.80/L.1.

65. The PRESIDENT put draft resolution A/CONF.80/L.I to the vote.

At the request of the representative of the Niger, thevote was taken by roll-call.

Mali, having been drawn by lot by the President, wascalled upon to vote first.

In favour: Algeria, Angola, Argentina, Australia, Austria,Brazil, Bulgaria, Burundi, Byelorussian SSR, Chile, Cuba,Cyprus, Czechoslovakia, Democratic Yemen, Denmark,Egypt, Ethiopia, Finland, German Democratic Republic,Ghana, Guyana, Hungary, India, Indonesia, Iraq, IvoryCoast, Jordan, Kenya, Kuwait, Lebanon, Liberia, LibyanArab Jamahiriya, Madagascar, Malaysia, Mali, Mauritania,New Zealand, Niger, Nigeria, Norway, Oman, Pakistan,Panama, Papua New Guinea, Peru, Philippines, Poland,Qatar, Republic of Korea, Romania, Saudi Arabia, Senegal,Sierra Leone, Singapore, Somalia, Spain, Sudan, Suriname,Swaziland, Sweden, Thailand, Trinidad and Tobago, Tu-nisia, Turkey, Uganda, Ukrainian SSR, Union of SovietSocialist Republics, United Arab Emirates, United Republicof Tanzania, Venezuela, Yemen, Yugoslavia, Zaire.

Against: None.

Abstaining: Belgium, Ireland, Italy, Japan, Portugal,Switzerland.

Draft resolution A/CONF.80/L.1 was adopted by 73votes to none, with 6 abstentions.

66. Mr. GIL MASSA (Mexico) said that his delegationhad unfortunately been called away urgently by theConference secretariat and had thus been momentarilyabsent when the draft resolution had been put to the vote.If it had been present, it would have voted in favour of thedraft resolution; it asked that its statement on Mexico'sposition should be reflected in the summary record,

67. Mr. NAKAGAWA (Japan) said that his delegationhad abstained in the vote, despite its sympathy forNamibia, because it was not convinced that it was for theConference to take a decision on a specific case ofsuccession of States.

68. Mr. HERNDL (Austria) said that his delegation hadvoted in favour of the draft resolution to mark its approvalof the operative part of the text, although it had somedoubts concerning the competence of the Conference todeal with the question and concerning the advisability ofadopting such a resolution, which in a way prejudged thedecision that Namibia would take when it became indepen-dent. Austria hoped that Namibia would become anindependent and sovereign State in the very near future.

69. He wished to point out that the position taken byAustria in the General Assembly on paragraph 7 of resol-ution 32/9 D, cited in the last preambular paragraph of theresolution just adopted, remained unchanged.

13th plenary meeting - 21 August 1978 11

70. Mr. DE VIDTS (Belgium), noting that his country hadvoted in favour of General Assembly resolution 2145 (XXI)of 27 October 1966, said that the Belgian delegation hadabstained in the vote on the resolution concerning Namibiabecause it was not convinced that the Conference shouldact as surrogate for the future independent State ofNamibia and because it considered that that future Statealone should decide whether to apply, in its own case, theexisting practice in the matter of succession of States or theprovisions of the Convention if it had entered into force.There had therefore been no call for the Conference to takea decision on the question. The resolution that had justbeen adopted in no way altered the prerogatives of thefuture State of Namibia, which Belgium wished everysuccess in asserting itself in the area of internationalrelations on the basis of respect for its new sovereignty.

71. Mr. MARESCA (Italy) said that Italy had alwaysadopted a favourable attitude towards Namibia, whoseindependence would serve to enrich the internationalcommunity.

72. The Italian delegation had abstained in the vote thathad just been taken because it considered that theConference, which had been convened to draw up aconvention on succession of States in respect of treaties,was not competent to take a decision on the question ofNamibia and that its adoption of a position constitutedinterference in the affairs of a future State which should bethe sole master of its own fate.

73. Mr. SIDDIQUI (United Nations Council for Namibia)expressed his gratitude to the Conference for havingadopted the resolution on Namibia.

TITLES AND TEXTS OF ARTICLES 30 TO 39 ADOPTED BYTHE COMMITTEE OF THE WHOLE1 (A/CONF.80/20)

Article 30 {Effects of a uniting of States in respect oftreaties in force at the date of the succession of States)

Article 30 was adopted without a vote.

1. Mr. FLEISCHHAUER (Federal Republic of Germany),referring to article 30, said that he wanted to make astatement on behalf of his own delegation and of the otherdelegations representing States members of the EuropeanCommunities at the Conference. He wanted to state thatthe provisions of the draft articles on succession of States inrespect of treaties did not apply to the participation ofStates in the European Communities. That view had alsobeen taken by the International Law Commission, as wasclear from its 1974 report (see A/CONF.80/4, pp. 12-13,chap. II, Introduction, paras. 65-69, and p. 93, para. 4 ofthe commentary to articles 30-32). The States members ofthe European Communities wished that statement to bereproduced in the records of the Conference.

Article 31 (Effects of a uniting of States in respect oftreaties not in force at the date of the succession ofStates)


Article 32 (Effects of a uniting of States in respect oftreaties signed by a predecessor State subject to ratifi-cation, acceptance or approval)



74. The PRESIDENT, observing that the Conferencewould obviously be unable to complete its work on 18August, as scheduled, suggested that the session be ex-tended until Wednesday, 23 August 1978, inclusive, subjectto any further decision that might be taken if necessary.

That suggestion was adopted.


13th PLENARY MEETINGMonday, 21 August 1978, at 3.20p.m.


Consideration of the question of succession of States inrespect of treaties in accordance with resolutions 3496(XXX) and 31/18 adopted by the General Assembly on15 December 1975 and 24 November 1976

[Agenda item 11] (continued)

Article 33 (Succession of States in cases of separationof parts of a State)

2. Mr. RITTER (Switzerland) requested that in view ofthe lengthy debate on article 33 and its importance in theconvention as a whole, the article should be put to the vote.

3. After a procedural discussion in which Sir Ian SIN-CLAIR (United Kingdom), Mr. MAIGA (Mali),Mr. MUDHO (Kenya), and Mr. PERE (France) took part,the PRESIDENT put article 33 to the vote.

Article 33 was adopted by 68 votes to 5.

4. Mr. MUDHO (Kenya) said that his delegation wouldhave voted for article 33 if it had been able to participate inthe vote.

1 For the consideration of these articles by the Committee ofthe Whole, see the summary records of the following meetings:article 30: 27th, 38th, 39th and 53rd meetings; article 31: 40th and53rd meetings; article 32: 40th and 53rd meetings; article 33: 40th,41st, 47th, 48th, 49th and 53rd meetings; article 34: 41st, 42nd and53id meetings; article 35: 43rd and 53rd meetings; article 36: 43rdand 53rd meetings; article 37: 43rd and 53id meetings; article 38:43id and 53rd meetings; article 39: 43id and 53rd meetings.

12 Summary records — Plenary meetings

Article 34 {Position if a State continues after separationof part of its territory)

5. Mr. PERE (France) pointed out, in connexion witharticle 34, that the position of the predecessor State wasregulated only in Part IV of the draft convention. Heregretted that it had not been defined in greater detail inthe cases referred to in Part HI of the draft. Consequently,the French delegation could not join the consensus onarticle 34, but would not oppose it.


Article 35 {Participation in treaties not in force at the dateof the succession of States in cases of separation of partsof a State)


Article 36 {Participation in cases of separation of parts of aState in treaties signed by the predecessor State subjectto ratification, acceptance or approval)


Article 37 {Notifications)


Article 38 {Cases of State responsibility and outbreakof hostilities)


Article 39 {Cases of military occupation)


REPORT OF THE DRAFTING COMMITTEE ON THE FINALCLAUSES (A/CONF.80/19)

Article [/] {Signature)

6. Mr. YASSEEN (Chairman of the Drafting Committee),introducing the report of the Drafting Committee on thefinal clauses of the convention, reminded the Conferencethat at its 21st meeting, on 20 April 1977, the Committeeof the Whole had instructed the Drafting Committee toprepare texts of the final clauses and to submit them directto the Conference.2 The Drafting Committee had hadbefore it a number of proposals by delegations, and twoworking documents by the Secretariat, one of whichcontained a comparative table of the final clauses appearingin the most recent codification conventions. After consider-ing those documents, the Drafting Committee had adoptedthe draft final clauses circulated under the symbolA/CONF.80/19. The numbering of the articles was pro-visional.

7. With regard to article [I], the Drafting Committee hadused the formulation which appeared in the two mostrecent codification conventions, and particularly in article81 of the 1975 Vienna Convention on the Representationof States in their Relations with International Organizationsof a Universal Character,3 where the expression "all States"was used. The two dates contained in the article had beenselected by the method used in the case of the 1975Convention, i.e. they were the last days of the sixth andtwelfth months from the month following the adoption ofthe Convention.

Article [/] was adopted without a vote.

Article [//] {Ratification)

8. Mr. YASSEEN (Chairman of the Drafting Committee)pointed out that article [II] contained the formulation thathad been used in all codification conventions, particularlyin article 49 of the Vienna Convention on DiplomaticRelations,4 article 51 of the Convention on SpecialMissions,5 and article 82 of the Vienna Convention on theLaw of Treaties.6 It had been proposed that the words"acceptance or approval" should be added to the title andin the text of the article; but the Drafting Committee hadfelt that there was no reason to depart from the establishedmodel, since the term "ratification" in the context of theconvention implied acceptance and approval.

9. Mr. LUKABU-K'HABOUJI (Zaire) said that his del-egation would submit written comments on article [I]which the Conference had just adopted. With regard toarticle [II], he observed that no provision in the conventionindicated who its depositary was to be. Article [II]mentioned the Secretary-General, but the words "who shallbe its depositary" should be added to the end of the article.

10. Mr. MAIGA (Mali) said that the representative ofZaire had been right to raise the question of the depositary;but he felt that the article was already sufficiently clear andinvited the representative of Zaire to withdraw his amen-dment in order to save time.

11. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that he understood the point made by therepresentative of Zaire, but thought that article [II] wasquite clear, since the instruments of ratification could notbe deposited with any authority other than the depositary.Also, the article contained a formulation already used inother codification conventions.

2 Official Records of the United Nations Conference on Suc-cession of States in respect of Treaties, vol. I, Summary records ofthe plenary meetings and of the meetings of the Committee of theWhole (United Nations publication, Sales No. E.78.V.8) p. 151,nist meeting, paras. 94-95.

3 Official Records of the United Nations Conference on theRepresentation of States in their Relations with InternationalOrganizations, vol. II, Documents of the Conference (United Na-tions publication, Sales No. E.75.V.12), p. 222.

4 United Nations, Treaty Series, vol. 500, p. 124.5 General Assembly resolution 2530 (XXlV).6 Official Records of the United Nations Conference on the Lav)

of Treaties, Documents of the Conference (United Nations publi-cation, Sales No. E.70.V.5), p. 300.


12. Sir Ian SINCLAIR (United Kingdom) said that hisdelegation would have some difficulty in departing fromthe established precedents, and that the addition of thewords proposed by the representative of Zaire might raisedoubts regarding the interpretation of conventions whichalready contained that formulation.

13. Mr. LUKABU-K'HABOUJI (Zaire) said that his pro-posal was intended to make the text of article [II] moreclear, and he recalled that the United Nations Conventionon the Carriage of Goods by Sea7 adopted at Hamburg inMarch 1978 contained that very phrase. He neverthelesswithdrew this amendment to article [II].

Article [II] was adopted without a vote.

Article [III] (Accession)

14. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that article [III] was based on article 83 of theVienna Convention on the Representation of States in theirRelations with International Organizations of a UniversalCharacter.8

Article [III] was adopted without a vote.

Article [IV] (Entry into force)

15. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that in article [IV] the Drafting Committee hadadopted the formulation used in all codification conven-tions. With regard to the number of instruments ofratification required for the entry into force of theconvention, the majority of the members of the DraftingCommittee had favoured 10, in view of the characteristicsof the Convention, which was not of interest to all States inthe same degree. A minority of the members of theDrafting Committee would have preferred a minimum of 20instruments.

16. Sir Ian SINCLAIR (United Kingdom) said that thenumber of instruments of ratification required for the entryinto force of the convention was, in his delegation's view,an important question. In the progressive development andcodification of the general rules of international law, thereWas the precedent of several conventions that required 35instruments of ratification, in particular the Vienna Con-vention on the Law of Treaties and the Vienna Convention°n the Representation of States in their Relations withInternational Organizations with a Univeral Character. Itwas essential to take into account not only those pre-cedents but also the need to stipulate that a considerableproportion of the international community should expressrts consent to be bound by the convention. In recent years,

7 A/CONF.89/13, annex I.

United Nations Conference on the Representation of States inTheir Relations with International Organizations, vol. II, Documents°f the Conference (United Nations publication, SalesN°E.75.V.12), p. 222.

the number of States had increased so fast that it might bepossible to envisage a figure even higher than 35 instru-ments of ratification. However, the United Kingdomdelegation recognized that in the present case, in view ofthe characteristics of the convention, it was not necessaryto have so large a figure. It therefore formally proposedthat the number of instruments of ratification required forthe entry into force of the convention should be 25;

17. Mrs. BOKOR-SZEGO (Hungary) observed that duringthe discussions, particularly on article 7, the majority ofdelegations had expressed the wish that the conventionshould enter into force in the near future, particularly asthe decolonization process had now practically come to anend. Accordingly, she did not understand the logic of theefforts being made to delay the entry into force of theconvention. In her opinion it was quite right to say that theconvention should enter into force after the deposit of thetenth instrument of ratification.

18. Mr. RASSOLKO (Byelorussian Soviet Socialist Re-public) said that the convention should enter into force assoon as possible. The number of instruments of ratificationrequired should therefore be fixed at 10, as proposed bythe Drafting Committee. It was necessary to take intoaccount that objective factor, and not subjective factorssuch as those mentioned by the representative of theUnited Kingdom. His delegation unreservedly supported thetext of the final clauses proposed by the Drafting Com-mittee.

19. Mr. de OLIVEIRA (Angola) said that Angola at-tached great importance to the progressive development ofinternational law. For instance, a few months after it hadacceded to independence in extremely difficult conditions,his Government had tried to persuade the internationalcommunity to approve a convention on the prevention andpunishment of the crime of engaging in mercenary activi-ties, and thus fill a void in international law. If Angola hadnot always participated as actively as it would have wishedin the work of international organizations for the develop-ment of international law, that was merely because it hadbeen independent for only three years and lacked qualifiedpersonnel. His delegation hoped that, in the case underdiscussion, the Conference would adopt machinery thatwould make it possible for the convention to enter intoforce as soon as possible. It welcomed the conventionelaborated by the Conference, which embodied solutionsthat would contribute to the progressive development ofinternational law. The convention was belated, but hedoubted whether it could have been adopted 20 yearspreviously. It could not be regarded merely as an academicexercise. It was understandable that, because of misgivingsor mental reservations, some States might not sign theConvention: but such misgivings or mental reservationscould not alter the fact that there was a consensus in theinternational community on the question involved. Hisdelegation considered therefore that 10 instruments ofratification would be enough for the entry into force of theconvention.


20. Mr. NATHAN (Israel) said that the convention couldbe placed in the category of normative treaties, i.e. treatiesestablishing a multilateral legal regime or codifying legalrules. That characteristic of the convention must be bornein mind, since it might perhaps be contrary to the purposesof the convention to provide that it should enter into forceafter the deposit of the tenth instrument of ratification.The number of instruments suggested seemed to beunprecedented for a treaty of that kind, because there werealready two codification conventions which provided thatthe number of ratifications should be 35. Since the adop-tion of those instruments, the number of States Members ofthe United Nations had grown to 149, which meant thatthe figure of 10 represented only 7 per cent of theOrganization's membership. Naturally, the entry into forceof the convention must not be unduly delayed; but abalance must be found between the need to accelerateentry into force so that newly independent States couldtake advantage of the provisions of the convention, and theneed to provide for the deposit of a reasonable number ofinstruments of ratification before the entry into force ofthe convention, hi the circumstances, his delegation re-garded as reasonable the figure of 25 proposed by theUnited Kingdom delegation, which was equivalent to onethird of the States participating in the Conference.

21. Mr. PEKE (France) drew attention to the fact thatalthough nine delegations in the Drafting Committee hadfavoured the figure 10, five other delegations had favoureda higher figure. Since the Drafting Committee had baseditself on the final clauses of codification conventions thathad already been adopted, he wondered why the Confer-ence should make innovations in the present case. Hisdelegation believed that the number of instruments ofratification required for entry into force of the conventionshould be fairly large for several reasons, particularlybecause the prestige of the United Nations would bedamaged if the Conference were to fix too low a figure fora major codification convention elaborated under theauspices of an organization of a universal character withnearly 150 Member States. It was wrong to say that nothinghad been done to facilitate the earliest possible entry intoforce and application of the convention. On the contrary,no convention had gone so far as the present one in thatrespect. For instance, article 7 permitted immediate, andeven retroactive, application of the convention by any Statethat so wished. He was therefore surprised by the alle-gations that certain delegations were showing ill-will in thematter, when States were in fact permitted to apply theprovisions of the convention even before its entry intoforce.

22. In the opinion of his delegation the problem was oneof form, not of substance. After referring to the codifi-cation conventions that required 35 instruments of ratifi-cation, he also cited the example of the recent HamburgConvention on the Carriage of Goods by Sea which,although it dealt with much more delicate problems andhad immediate financial and economic implications, estab-lished the figure of 20 in accordance with the wishes ofdelegations of developing countries, which his delegation

had supported. In conclusion, he suggested that if theConference were to fix too low a figure, it would raisedoubts concerning the quality of its work and concerningthe welcome which the international community was likelyto give to an uncontroversial convention.

23. Mr. R1TTER (Switzerland) pointed out that thefuture convention was intended to be universal, whichmeant that it must be ratified by a number of States thatwas representative of the international community. In hisopinion, by permitting the entry into force of a universalconvention ratified by only 10 States, the Conferencemight distort the nature of the convention, lessen itsprestige and detract from its authority. It was true that torequire a high number of ratifications might delay the entryinto force of the convention, as had occurred with the 1969Vienna Convention on the Law of Treaties. In the case ofthe current convention, however, the problem was solved inadvance as a result of the provisions of article 7, whichpermitted a State that had emerged prior to the entry intoforce of the convention to apply the provisions of theconvention with respect to its own succession of States. Itdid seem possible, therefore, to adopt a figure more in linewith the universal character of the convention. In hisopinion, the figure of 35 would already represent an easingof requirements by comparison with the Vienna Conven-tion on the Law of Treaties, because the number ofMembers of the United Nations had increased since thatdate; but his delegation supported the figure of 25proposed by the United Kingdom which, in view of theprovisions of article 7, should meet all objections.

24. Mr. WALLACE (United States of America) said hethought that the figure proposed by the Drafting Com-mittee was too small. A significant minority of themembers of the Drafting Committee had voted for a higherfigure, as the representative of France had emphasized. If,as the representative of Angola had said, the conventionenjoyed the consensus of the international community,which at present numbered 158 States, the figure 10 in noway reflected that consensus. It was true that there wererelatively few newly independent States that were liable toinvoke the provisions of the convention; but all Statescould be affected by a succession of States.

25. He pointed out that two of the more recentcodification conventions had set the number of ratificationsrequired at 35, and none had provided for a figure lowerthan 22. In his opinion, the figure should be set at 25 in thecurrent convention and should not, in any case, be lessthan 20.

26. Mr. KASASA-MUTATI (Zaire) said that in theproposal for final clauses (A/CONF.80/DC.27) which it hadsubmitted to the Drafting Committee on 7 August 1978,his delegation had proposed that the number of ratifi-cations required for entry into force of the conventionshould be 25. It considered that a happy medium must befound between the figure of 35 established in the ViennaConvention on the Law of Treaties, which was excessive,and the figure of 10 proposed by the Drafting Committee,

13th plenary meeting — 21 August 1978 15

which detracted from the value of the work of theConference and did not take account of the importance ofthe future convention which was of interest to the wholeinternational community. He failed to understand the fearsof delegations which considered that, by establishing thenecessary number of ratifications at 25, the Conferencewould delay the entry into force of the convention. In hisopinion the convention was one of which the Conferencecould be proud and which States would not hesitate toratify.

27. Mrs. THAKORE (India) said that, for the reasonsgiven by the representatives of the United Kingdom andSwitzerland, she favoured a figure not lower than 20. Sheconsidered that the convention under discussion was closelylinked to the Vienna Convention on the Law of Treatiesand must be supported by a significant number of States.

28. Mr. YACOUBA (Niger) said that the Conferencemust ensure not only the progressive, but also the rapid,development of international law. It should not, therefore,follow the example of the Vienna Convention on the Lawof Treaties, which had become a reference source evenbefore its entry into force. If it were to achieve its purpose,tne convention to be adopted by the Conference must takeeffect as soon as possible. In a spirit of conciliation, hecould agree that the number of ratifications necessary forthe entry into force of the convention should be 15.

29. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that he wished to make it clear that, when theDrafting Committee had voted on the number of instru-ments of ratification or accession required for the entryinto force of the convention, the figure 10 had beenadopted by 9 votes to 5, with 1 abstention. He also wishedto explain that he had not said that the convention was notof interest to all States but that it was not of interest to allStates in the same degree.

30. Mr. FLEISCHHAUER (Federal Republic of Ger-many) supported the United Kingdom proposal to set thenumber of ratifications necessary for entry into force of theconvention at 25. In his opinion, the question of acceler-ating or delaying the progressive development of inter-national law was not the main issue; what was essential wasto make sure that the convention enjoyed sufficientsuPport in the international community. The practice ofStates at the end of the 1950s and in the 1960s showedthat the number of ratifications required for the entry intoforce of conventions of a universal character had beenapproximately one third of the States Members of theUnited Nations. In view of the increase in the number ofMember States, it was now impossible to maintain thatProportion by setting the number of ratifications requireda 50. Twenty-five was, however, a minimum figure.

theMr. MUDHO (Kenya) pointed out that, whereas in

case of certain conventions-such as the 1978 UnitedRations Convention on the Carriage of Goods by Sea-

ates had to be given sufficient time to make preparations°r applying the provisions of the convention, the ii same was

not true in the case of the current convention whichreflected the existing state of customary law. Accordingly,he failed to see why, before applying the convention,States should wait until it had been ratified by 25 States.He was surprised to note that delegations that had referredto the provisions of article 7, which permitted retroactiveapplication of the convention, were the very same oneswhich advocated a high number of ratifications. He pointedout that the Vienna Convention on the Law of Treatieshad, 10 years after its adoption, still not entered into forceand, as the Chairman of the Drafting Committee hadpointed out, the current convention was essentially ofinterest to a relatively small number of States. He would,therefore, have preferred the figure of 10 proposed by theDrafting Committee but, in a spirit of conciliation, he wasprepared to accept the figure of 15.

32. Mr. MARESCA (Italy) said he had always regrettedthat so much time elapsed between the signing of aninternational convention and its entry into force, as hadoccurred in the case of the Vienna Convention on the Lawof Treaties which was still not in force. The figure of 35,which was established in that Convention, seemed too high;and, in his view, the Conference would be making a seriouserror if it adopted that figure in the convention now underdiscussion. The international community had admittedlygrown but that was the result of the emergence of newStates; and it was precisely they which were impatientlywaiting for the convention to enter into force.

33. Also, ratification of a convention by a State involveda lengthy ministerial and parliamentary procedure, whichdelayed the entry into force of the convention. Hetherefore believed that, the number, of instruments ofratification required should be set at a figure lower than 35and, in a spirit of compromise, he would accept the figureof 25 proposed by the United Kingdom, which he regardedas a maximum.

34. Mr. T0D0R0V (Bulgaria) endorsed all the argumentsput forward in favour of the figure 10. The figure of 35established in the 1969 Vienna Convention on the Law ofTreaties and in the 1975 Vienna Convention on theRepresentation of States in their Relations with Inter-national Organizations of a Universal Character, seemed tobe too high; and, indeed, neither convention had yet comeinto force. A convention recently adopted under theauspices of World Intellectual Property Organization hadfixed at 12 the number of ratifications needed for its entryinto force. He therefore supported the number proposed bythe Drafting Committee.

35. Mr. JOMARD (Iraq) proposed the figure of 15, whichhe regarded as a reasonable compromise.

36. Mr. EUSTATHIADES (Greece) pointed out that thevalue of a codification convention lay not only in itsapplication by the contracting parties but also in its impacton general international law. The date of its entry intoforce was therefore not of decisive importance: the mannerin which it was applied was more important. Any State


wishing to accelerate its entry into force had only to ratifyit without delay.

37. However, the present convention was not an ordinarycodification convention, since it would not be applied fromday to day like the Vienna Convention on the Law ofTreaties, the Vienna Convention on Diplomatic Relationsor the Vienna Convention on Consular Relations.9 It wasone which would apply only in cases of succession ofStates—in other words, in very rare instances. It shouldtherefore enter into force more quickly than the othercodification conventions, and he proposed that the numberof instruments of ratification should be fixed at between 10and 20.

38. Mr. SCOTLAND (Guyana) considered 10 to be areasonable number in view of the objective of the conven-tion, which was to enable newly-independent States to availthemselves as quickly as possible of the advantages providedfor in treaties concluded by the predecessor State. Theargument that the convention, in view of its universalcharacter, could not enter into force until it had beenratified by a sizeable proportion of the internationalcommunity failed to convince him, because the figure of 35was not representative of the international communityeither. Also, the two Vienna Conventions in which thatnumber had been established could not be taken as areference since they were different in nature from thepresent convention. He could therefore not accept anumber higher than 20.

39. Mrs. BEMA-KUMI (Ghana) considered that the pro-gressive development of international law required that thepresent convention should come into force as soon aspossible, so that newly independent States could availthemselves of its provisions without delay. She was there-fore in favour of the figure of 10, but could accept 15 in aspirit of compromise.

40. Mr. STUTTERHEIM (Netherlands) remarked that thenumber of instruments of ratification required was alwaysarbitrary. For a codification convention, ratification by onequarter of the number of States Members of the UnitedNations should normally be required. In the present case,however, and particularly in view of the special importanceof the entry into force of the convention in accordancewith article 7, his delegation considered that a lowernumber was permissible. It therefore favoured the figureof 15, which it had proposed in the Drafting Committee.

41. Mr. MAIGA (Mali) took the view that the value of auniversal convention did not depend on the number ofratifications, as had once been thought. A number ofcodification conventions concluded during the last decadehad not yet entered into force because the number ofratifications needed was too high. The international com-munity's codification efforts were designed to guaranteethe stability of international relations in the legal field.Since one of the principal phenomena of the present

United Nations, Treaty Series, vol. 596, p. 261.

age—the decolonization process—occupied an importantplace in the future convention, the latter should come intoforce as soon as possible. His delegation would like theconvention to enter into force immediately following itssignature; but out of respect for the views of otherdelegations, it would accept the lowest number of ratifi-cations proposed—i.e. the number proposed by the DraftingCommittee.

42. Mrs. VALDES PEREZ (Cuba) said that, in theDrafting Committee, her delegation had advocated thelowest possible figure. The entry into force of the ViennaConvention on the Law of Treaties, on which the futureconvention was modelled, had been subject to the require-ment of a much higher number of ratifications. It must beborne in mind that the question of succession of Stateswith regard to treaties was such that the future conventionwould be a dead letter if its entry into force were to dependon an excessively high number of ratifications. The numbershould not be higher than 10.

43. Mr. TORNARITIS (Cyprus) proposed that, in a spiritof conciliation and bearing in mind the special nature of thefuture convention, the number of ratifications neededshould be established at 20.

44. The PRESIDENT, summing up the discussion, saidthat, in addition to the proposal by the Drafting Committeethat 10 ratifications should be required, the Conference hadbefore it an amendment by the United Kingdom calling for25 ratifications, one by Cyprus calling for 20 ratificationsand another by Iraq, supported by the Netherlands,providing for 15 ratifications.

45. Sir Ian SINCLAIR (United Kingdom) announcedthat, in order to simplify the procedure, his delegationwould be prepared to withdraw its amendment if del-egations which favoured 20 ratifications would also with-draw their support for that figure.

46. Mr. RYBAKOV (Union of Soviet Socialist Repub-lics), speaking on a point of order, said that the Conferencedid not have before it a basic proposal by the DraftingCommittee and three amendments to that proposal, butrather four independent proposals concerning the numberof ratifications. It was therefore essential to determine theorder in which those proposals were to be put to the vote.Rule 41 of the rules of procedure, concerning votes onproposals relating to the same question, should be applied.

47. The PRESIDENT took the view that the DraftingCommittee's text should be regarded as the basic proposal.According to rule 40 of the rules of procedure "a motion isconsidered an amendment to a proposal if it merely addsto, deletes from or revises part of that proposal". Theproposals made during the discussion were amendments iflthat they sought to amend a figure established by theDrafting Committee. The Conference should therefore votefirst on the amendment which was substantively farthestremoved from the original proposal, in other words, on theUnited Kingdom amendment. If that amendment was

13 th plenary meeting - 21 August 1978 17

rejected, it should then vote on the amendment by Cyprusand, if necessary, on the amendment proposed by Iraq andthe Netherlands.

48. Mr. RYBAKOV (Union of Soviet Socialist Republics)said he still thought that the Conference had before it fourseparate proposals, each of which related to the require-ments for entry into force of the future convention. Thoseproposals should be put to the vote in the order in whichthey were submitted, i.e. starting with that of the DraftingCommittee.

49. The PRESIDENT said he could not agree with theSoviet representative. For motions submitted during thediscussion to be considered as independent proposals, theywould have to be unrelated to other proposals; but themotions under discussion were concerned simply withfigures which were meaningful only in relation to theDrafting Committee's proposal. According to the methodsof work and procedures (A/CONF.80/3, para. 9) adoptedby the Conference at its 1977 session, "Proposals will beany text, in addition to the 'basic proposal' provided for inRule 27, i.e., the draft articles adopted by the InternationalLaw Commission, on a matter which has not beenconsidered by the Commission, such as a preamble, thefinal clauses, any additional protocols, ...". What theDrafting Committee had submitted to the Conference was aproposal, and what had been submitted during the dis-cussion were amendments to that proposal.

50. Mr. YANGO (Philippines), speaking on a point oforder, reminded the Conference that prior to the presentprocedural debate the United Kingdom representative hadsaid that his delegation was prepared to withdraw its oralamendment on a certain condition.

51. The PRESIDENT suggested that a decision on thetext submitted by the Drafting Committee for article [IV]and on the amendments thereto should be deferred untilthe following meeting.

It was so decided.

Article [V\ (Authentic texts)

52. Mr. YASSEEN (Chairman of the Drafting Com-mittee) explained that the Drafting Committee had mod-elled article [V] on article 85 of the Vienna Convention onthe LaW of Treaties. In view of the relevant GeneralAssembly resolution, Arabic had been added to thelanguages in which the authentic texts were established.

53- The PRESIDENT said that, if there were no objec-tions, he would take it that the Conference wished to adoptarticle [VJ

It was so decided.

Testii

55. The PRESIDENT said that, if there were noobjections, he would take it that the Conference wished toadopt the testimonium.

It was so decided.

REPORT OF THE DRAFTING COMMITTEE ON THE PRE-AMBLE TO THE CONVENTION (A/CONF. 80/21)

56. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that at the 1977 session the Conference hadrequested the Drafting Committee to prepare a draftpreamble to the convention.10 The draft which theCommittee was now submitting direct to the Conferencewas based on various working papers and proposals. At the1977 session, the Drafting Committee had had before it adraft preamble submitted by Spain (A/CONF. 80/DC. 9) anda draft paragraph submitted by the United Nations Councilfor Namibia (A/CONF.80/DC. 13). In 1978, it had receiveda draft preamble from Ivory Coast (A/CONF.80/DC.21),another draft from, Uganda (A/CONF.80/DC.26), a draftparagraph from the Ukrainian Soviet Socialist Republic(A/CONF.80/DC.29) and a draft preamble submittedjointly by Ivory Coast and Spain (A/CONF.80/DC.30). Inpreparing its draft preamble, the Drafting Committee hadalso taken into account a proposal submitted by Afgha-nistan to the 21st meeting of the Committee of theWhole11 and a proposal by the Netherlands (A/CONF. 80/C.1/L.57) which had been referred to it by the Committeeof the Whole.12 lastly, the Drafting Committee had hadbefore it two working papers prepared by the Secretariat(A/CONF. 80/DC/R. 10 and R.ll).

57. Apart from the proposal by the United NationsCouncil for Namibia for a new paragraph to be inserted inthe preamble (A/CONF.80/DC.13)-the substance ofwhich proposal had been incorporated in the resolutionadopted by the Conference13—all the documents to whichhe referred had been taken into consideration by theDrafting Committee, which had devoted six consecutivemeetings to the preparation of the preamble.

58. In preparing its draft preamble, the Drafting Com-mittee had borne in mind the characteristics of the futureconvention, and had endeavoured to make clear the closerelations between it and the Vienna Convention on the Lawof Treaties. The Vienna Convention was expressly men-tioned in three paragraphs of the preamble. Two paragraphswere virtually identical with paragraphs in the preamble tothe Vienna Convention. Lastly, the importance of thecodification and progressive development of internationallaw for the international community had been dulyemphasized.

59. Apart from the penultimate paragraph, on which onemember of the Drafting Committee had reserved his

wionium54. Mr. YASSEEN (Chairman of the Drafting Com-

"Uttee) pointed out that the testimonium had been basedon that of the Vienna Convention on the Law of Treaties.

I ° See foot-note 2 above.I I Official Records of the United Nations Conference on

Succession of States in Respect of Treaties ... (pp. cit.), p. 147,21st meeting, para. 62.

12

1 3' See 47th meeting, para. 31.

See 12th plenary meeting, paras. 16-65.


position, each of the 11 paragraphs of the preamble hadbeen adopted by consensus.

60. Since recent practice in regard to succession of Stateswas for the most part directly related to decolonization,and since most of the problems raised by succession ofStates were connected with that phenomenon, the firstpreambular paragraph referred to the profound transform-ation of the international community brought about by thedecolonization process. That provision was based on pro-posals submitted respectively by Spain and by Spain andIvory Coast. The second paragraph looked to the future,with a reference to other factors which might lead to casesof succession of States. The third paragraph set out theimplications of the ideas expressed in the precedingparagraphs, i.e., the need for the codification and progress-ive development of the rules relating to succession of Statesin respect of treaties, as a means for ensuring greaterjuridical security in international relations. The fourthparagraph, virtually identical with the corresponding pro-vision in the Vienna Convention on the Law of Treaties,contained a reference to principles that were universallyrecognized and directly related to the aims of the conven-tion and the rules it contained. In the fifth paragraph,which was based on the proposal by the Ukrainian SovietSocialist Republic, the Drafting Committee had emphasizedthe importance of the codification and progressive develop-ment of international law for the strengthening of inter-national peace and co-operation. The sixth paragraph,which also corresponded to a provision in the ViennaConvention, referred to the fundamental principles ofinternational law which were embodied in the Charter ofthe United Nations, and on which the convention wasbased. The seventh paragraph referred to a principle whichwas derived from the Charter and was obviously closelyrelated to the rules concerning succession of States—theprinciple of respect for the political independence andterritorial integrity of all States. The eighth and ninthparagraphs indicated the links between the future conven-tion and the Vienna Convention, article 73 of which wascrucial in that respect, since it provided in particular thatthe provisions of the Vienna Convention did not prejudgeany question which might arise in regard to a treaty from asuccession of States. The tenth paragraph referred to therelation between the convention and the law of treaties, ofwhich the Vienna Convention was the most authoritativeexpression. Lastly, the eleventh paragraph stated a principlewhich seemed to be obligatory in conventions preparedunder United Nations auspices for the codification ofinternational law—i.e. the principle that the rules ofcustomary international law should continue to governquestions not regulated by such conventions.

61. Mr. DUCULESCU (Romania) stressed the importanceof the draft preamble under consideration, which was agenuine code of moral, political and legal principles in thelight of which the convention would be interpreted. Hewelcomed the reference in the preamble to several essentialprinciples, but regretted that some of the formulationsadopted by the Drafting Committee were less satisfactorythan those used in the draft submitted by Spain and Ivory

Coast (A/CONF.80/DC.30), in particular the formulationconcerning any attempt to disrupt, partly or completely,the national unity of a State.

62. In his delegation's view, the eleventh paragraph of thedraft preamble, to the effect that the rules of customaryinternational law would continue to govern questions notregulated by the provisions of the convention, must beinterpreted in the light of the sixth paragraph. The rules ofcustomary law in question were those which were inconformity with international law, and not earlier custom-ary rules which were contrary to the interests of newStates. That was the sense of the paragraph in the proposalby Uganda (A/CONF.80/DC.26) which emphasized thedesire to amplify and codify in a convention the rules andpractices of customary international law in regard tosuccession of States in respect of treaties.

63. The PRESIDENT said that if there were no objec-tions, he would take it that the Conference wished to adoptthe draft preamble submitted by the Drafting Committee(A/CONF.80/21).

It was so decided.

64. Mr. PER£ (France) said that his delegation had joinedthe consensus on the understanding that the fifth and tenthpreambular paragraphs would be interpreted in the mannerit had said that it understood them.

65. The fifth paragraph seemed to some extent toduplicate the fourth paragraph, which affirmed the prin-ciple pacta sunt servanda. In his delegation's view, the fifthparagraph was no more than a tribute to a particular classof treaties. It was obvious, however, that the duty tocomply with multilateral treaties, and those the object andpurpose of which were of interest to the internationalcommunity as a whole, should be interpreted in accordancewith the fourth paragraph, which affirmed the principle offree consent, and with the sixth paragraph, which pro-claimed the principles of the sovereign equality of States,the independence of States, and non-interference in theinternal affairs of States.

66. The tenth paragraph contained a reference to theVienna Convention on the Law of Treaties, with regard toquestions of the law of treaties other than those whichmight arise from a succession of States. In that connexion,he reminded the Conference that in the course of thediscussions, it had been accepted that the Vienna Conven-tion on the Law of Treaties included both pre-existingcustomary rules and rules elaborated by the United NationsConference on the Law of Treaties. For its part, theDrafting Committee had agreed that the tenth paragraph ofthe preamble referred solely to rules already in existence,which meant that no others could be invoked against Statesthat were not parties to the Vienna Convention on the Lawof Treaties. In that connexion, his delegation noted withsatisfaction that the use of the formula "including thoseshowed unequivocally that only some of the rules ofcustomary law had been consolidated in the ViennaConvention on the Law of Treaties.


67. Mr. MARESCA (Italy) pointed out that the firstparagraph of the preamble proclaimed a historical factwhich was not, however, brought into relation with theparagraphs which followed. It would have been better toadd to it the words "modifying the legal regimes for thesuccession of States in respect of treaties".

68. Mr. FLEISCHHAUER (Federal Republic of Ger-many) said that his delegation had joined in the consensusalthough it had some difficulty with the fifth paragraph ofthe preamble. He failed to see what precisely was meant by"consistent observance" and the concept of general multi-lateral treaties was by no means precise. Neither the generallaw of treaties nor the Vienna Convention on the Law ofTreaties recognized any such class of treaties. In hisdelegation's view, no class of treaty was any more bindingthan another.

TITLE OF THE FUTURE CONVENTION

69. The PRESIDENT suggested that the Drafting Com-mittee might be requested to submit to the Conference atitle for the future convention.

It was so decided.


14th PLENARY MEETING

Tuesday, 22 August 1978, at 11,25 a.m.




REPORT OF THE DRAFTING COMMITTEE ON THE FINALCLAUSES (A/CONF.80/19) (concluded)

Article [IV\ - Entry into force

1- The PRESIDENT said that the 13th plenary meetinghad deferred a decision on the Drafting Committee's textfor article [TV] and the oral amendments thereto. Threeamendments had been proposed to the figure for thenumber of ratifications required-10—as it appeared in thetext recommended by the Drafting Committee.

2- Mr. TORNARITIS (Cyprus) said he withdrew hisdelegation's amendment proposing 20 instruments of rati-fication.

3- Mr. NAKAGAWA (Japan) said his delegation wishedt o propose this figure of 20 instruments.

4. Sir Ian SINCLAIR (United Kingdom) said that in viewof the fact that the amendment calling for 20 instrumentshad been reinstated, he would not insist on a vote on theUnited Kingdom amendment calling for 25 instruments.

5. The PRESIDENT put to the vote the Japaneseamendment to article [IV].

The amendment was rejected by 42 votes to 28, with 8abstentions.

6. The PRESIDENT put to the vote the amendmentproposed by Iraq and the Netherlands, which called for 15instruments.

The amendment was adopted by 55 votes to 5. with 15abstentions.

7. The PRESIDENT put to the vote article [IV] of thefinal clauses, as amended.

Article [IV] as amended, was adopted by 69 votes to 1,with 8 abstentions.

ARTICLES 6, 7 AND 2, TITLE OF ARTICLE 11, AND ARTICLES12 AND 12 bis ADOPTED BY THE COMMITTEE OF THEWHOLE (A/CONF.80/22 AND CORR.l, A/CONF.80/23, A/CONF.80/24)1

8. The PRESIDENT invited the Conference to adoptarticles 6, 7, 2, the title of article 11, and articles 12 and 12bis as adopted by the Committee of the Whole at its53rd meeting (article 6) and its 56th meeting (articles 7, 2,title of article 11, and articles 12 and 12 bis) on 17 and 21August 1978, which appeared in documents A/CONF.80/22 and Corr.l (articles 6 and 7), A/CONF.80/23 (article 2)and A/CONF.80/24 (title of article 11, and articles 12 and12 bis).

Articles 6 and 7

Articles 6 and 7 were adopted without a vote.

Article 2

9. Mr. KOH (Singapore) said that he wished to place onrecord his delegation's view that the concept of a newly

1 For the consideration of these articles by the Committee ofthe Whole, see the summary records of the following meetings:article 6: 6th, 8th, 9th, 34th, 50th, 51st and 53rdmeetings;article 7; 9th; 10th; 11th; 12th; 34th; 50th; 51st, 53rd and56th meetings; article 2: 2nd, 3rd, 5th, 52nd and 56th; article 11:17th, 18th, 19th, 33rd and 56th; article 12: 19th, 20th, 21st, 34th,54th, 55th and 56th meetings; article 12 bis: 54th, 55th and 56th.[The summary records of the 1st to 36th meetings of the Com-mittee of the Whole, for the 1977 session, appear in OfficialRecords of the United Nations Conference on Succession of Statesin Respect of Treaties, vol. I, Summary records of the plenarymeetings and of the meetings of the Committee of the Whole(United Nations publication, Sales No. E.78.V.8), pp. 21 et seq, ]


independent State as defined in paragraph 1 (f) of article 2was applicable to a case like that of Singapore.


Title of article 11

10. Mr. RANJEVA (Madagascar), noting that the word"regime" was used in the plural in the title of article 11,said it was his delegation's understanding that the titlereferred to boundaries established by treaty between thepredecessor State and neighbouring States and that conse-quently neither the title nor the text of article 11 affectedthe principle of the territorial integrity of the successorState, based on the constant area of territory it hadoccupied for many years.

The title of article 11 was adopted without a vote.

Article 12

11. Mr. NAKAGAWA (Japan) said that, as his delegationhad stated at the 20th meeting of the Committee of theWhole,2 it considered that the rules embodied in article 12,as in article 11, were rules of customary international law,which had been recognized both in the writings of juristsand in State practice. There were, however, legal situationscreated by treaty which, although having a dispositiveeffect, did not have the character of a boundary regime, forinstance, treaties relating to the settlement of claims. It wasone of the established rules of international law that legalsituations created by such treaties were not affected by asuccession of States as such.


Article 12 bis

12. Mr. AHIPEAUD (Ivory Coast) said that, while hisdelegation was not opposed to the adoption of article 12bis, it interpreted its terms to mean that nothing in theconvention should affect the permanent sovereignty—asopposed to the principles of international law affirmingthat concept—of every people and every State over itsnatural wealth and resources.

13. Mr. ROVINE (United States of America) said hisGovernment considered article 12 bis to be ambiguous intwo respects. In the first place, the type of treaties thatwould be covered by its provisions was not clear, althoughhis delegation's impression was that it would be limited tothose relating to the consumption of natural resources andconsequently that transit and access rights would not beaffected. Secondly, while his Government had no difficultyin accepting the principle of permanent sovereignty overnatural wealth and resources, it had serious doubts as to themeaning to be attached to that principle.

2 Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties... {op. cit.), pp. 139-140,20th meeting, para. 32.

14. His delegation's willingness, in the Committee of theWhole, to abstain in the vote on the article had been basedon its understanding that the United Nations Declarationon Permanent Sovereignty over Natural Resources, as setforth in General Assembly resolution 1803 (XVII), wouldgive a more precise meaning to the principle. In the light ofthe further debate and consideration of the matter,however, his Government now doubted whether thatresolution in fact constituted the only basis for interpretinga principle that had been accepted by many delegations,and took the view that there was substantial ambiguityboth in the drafting and in the meaning of article 12 bis.

15. As his delegation had already stated in the Com-mittee of the Whole, it could have accepted the,phrase "inaccordance with international law", which appeared at theend of article 12 bis3 as originally formulated, and also thestatement that nothing in the Convention should affect therelevant rights and obligations of States under internationallaw and other treaties. It attached considerable importanceto the preamble, which provided that the rules of custom-ary international law would continue to govern questionsnot regulated by the Convention; that clause would beextremely useful in giving greater precision to article 12 bis.Since the Conference had not made its intent clear on theissues he had mentioned, however, his delegation wasunable to accept the article and would vote against it. Herequested that the vote be taken by roll-call.

16. Mr. MONCAYO (Argentina) said that one of thecharacteristics of an independent State was its freedom todispose of its own natural resources. That did not meanthat a successor State had to withhold such resources fromthe process of creation and change and from that exchangeof goods and wealth which was one of the dynamicelements of modem international relations. Nor did it meanadopting an inward-looking nationalism that could onlylead to stagnation. That had been the thinking behind hisdelegation's initial proposal (A/CONF.80/C.1/L.27), sub-mitted in 1977, and it was the reason for its support ofarticle 12 bis.

17. Many examples were to be found in developingcountries of the mutual benefits which accrued from thepooling of their resources with other States as well as withinternational financial and technical organizations, foreignState-owned enterprises and private companies. Throughco-operation in a variety of forms, it had proved possible tomobilize extensive resources, to undertake imaginativeprojects and to promote progress in general.

18. Article 12 bis, however, merely sought to ensure thata successor State would have a hand in controlling its ownwealth and would have the power to decide, of its own freewill, when and how the natural resources of its territoryshould be employed. For countries which lacked capitaland technological know-how and which, in certain cases,were faced with increasing poverty, it was imperative thatthe attributes of political independence should be rec-ognized and that those countries should be guaranteed the

See 55th meeting, para. 36.


possibility of exercising sovereignty over their own naturalresources. The transfer of political power to a State withoutan accompanying power to control and exploit thoseresources was but a nominal transfer of power that wouldnot permit it to engage in any effective internationalco-operation.

19. Mr. ALVAREZ VITA (Peru) said he endorsed theviews expressed by the representative of Argentina.

20. Mr. MARESCA (Italy) said that, while his delegationwould cast its vote in favour of article 12 bis, it wouldreiterate that it interpreted its terms as involving a totalrenvoi to international law. Thus, wherever the economicsovereignty of the State was to be respected, so were itsobligations in respect of any investments of which it wasthe recipient.

In accordance with the request of the United Statesrepresentative, a vote on article 12 bis was then taken byroll-call.

Uruguay, having been drawn by lot by the President, wascalled upon to vote first. The result of the voting was asfollows:

In favour: Angola; Argentina; Australia; Austria; Brazil;Bulgaria; Byelorussian Soviet Socialist Republic; Chile;Cuba; Cyprus; Czechoslovakia; Democratic Yemen; Den-mark; Egypt; Ethiopia; Finland; German DemocraticRepublic; Ghana; Greece; Guyana; Holy See; Hungary;India; Indonesia; Iraq; Ireland; Italy; Ivory Coast; Kenya;Kuwait; Libyan Arab Jamahiriya; Madagascar; Malaysia;Mali; Mexico; New Zealand; Niger; Norway; Oman; Pa-kistan; Panama; Papua New Guinea; Peru; Philippines;Poland; Portugal; Qatar; Republic of Korea; Romania;Saudi Arabia; Senegal; Sierra Leone; Singapore; Spain; SriLanka; Sudan; Suriname; Swaziland; Sweden; Switzerland;Thailand; Tunisia; Turkey; Uganda; Ukrainian Soviet So-cialist Republic; Union of Soviet Socialist Republics;United Arab Emirates; United Republic of Tanzania;Uruguay; Venezuela; Yemen; Yugoslavia and Zaire.

Against: United States of America.

Abstentions: Belgium; Canada; France; Federal Republicof Germany; Israel; Japan; Netherlands and the UnitedKingdom of Great Britain and Northern Ireland.

Article 12 bis was adopted by 73 votes to 1, with 8abstentions.

21. Mr. FLEISCHHAUER (Federal Republic of Ger-many), speaking in explanation of vote, said his delegationhad abstained in the vote on article 12 bis for the reasonswhich it had already stated in the Committee of theWhole,4 and principally because of the inherent ambiguity°f its terms. The respect in which the Federal Republic ofGermany held the permanent sovereignty of States overtheir natural wealth and resources had been demonstrated°n many occasions. It considered that such sovereigntyshould always be exercised in accordance with international


law and with due respect for the rights of other States,territories and peoples protected by international law. Onthat understanding, it felt itself to be in harmony withGeneral Assembly resolution 1803 (XVII) which, in ref-erence to the exercise of sovereignty over natural resources,spoke of "the mutual respect of States based on theirsovereign equality".

22. Sir Ian SINCLAIR (United Kingdom), speaking inexplanation of vote, said that his delegation had abstainedin the vote on article 12 bis because, notwithstanding theefforts made in the Informal Consultations Group, itconsidered that the language of its provisions was stillambiguous. It would have preferred the reference tointernational law to come at the end of the sentence andconsidered that the provision would have been far clearerhad it read: "Nothing in the present Convention shall affectthe permanent sovereignty of every people and every Stateover its natural wealth and resources in accordance withinternational law".

23. His Government's basic position on the concept ofpermanent sovereignty over natural resources had beenmade clear on many occasions in the United NationsGeneral Assembly and other United Nations bodies. Itacknowledged that such a concept existed but maintainedthat its exercise was regulated by principles of internationallaw which, in the final analysis, must be capable ofresolving any conflict or potential conflict between theconcept of permanent sovereignty and other concepts, suchas that of acquired rights. That was the sense in which itinterpreted the phrase "the principles of international lawaffirming the permanent sovereignty of every people andevery State over its natural wealth and resources". Withinthat context, account would naturally have to be taken ofGeneral Assembly resolution 1803 (XVII) which, in theview of his delegation—a view affirmed by the solearbitrator in the Texaco Arbitration—constituted the mostrecent and generally accepted formulation of the conceptof permanent sovereignty over natural resources and itsrelationship to international law.

24. He wished to reaffirm the remarks he had made inthe Committee of the Whole regarding his understanding ofthe relationship between article 12 bis and the rest of theConvention, and to indicate that his delegation did notinterpret article 12 bis as undermining or in any wayaffecting the principle of ipso jure continuity embodied inthe rules set forth in Part IV of the Convention.

TITLE AND TEXT OF THE RESOLUTION CONCERNINGARTICLE 30s (A/CONF.80/25)

25. Mr. GILMASSA (Mexico) referring to the roll-callvote taken on the draft resolution on Namibia6 (A/CONF.80/L.1), said he wished to call attention, in the

5 For the discussion of the draft resolution by the Committee ofthe Whole, see the summary records of the 54th, 55th and56 th meetings.

6 See 12th plenary meeting, paras. 16-73.

22 Summary lecoids - Plenary meetings

strongest terms, to the fact that, although he had indicatedbefore the result of the vote was announced that he wishedto cast his vote, that request had not been granted. Hisdelegation had further requested that the secretariat includein the summary record a statement to the effect thatMexico would have cast its vote in favour of the draftresolution. That request had also not been granted. Hewould therefore point out that, in accordance with thepractice followed throughout the United Nations family oforganizations, any delegation could cast or amend its votebefore the result of the vote was announced. Only if adelegation endeavoured to do so after the result had beenannounced would it be out of order.

26. The PRESIDENT said that due note would be takenof the Mexican representative's remarks.

27. Mr. DIENG (Senegal) asked that a vote be taken onthe draft resolution concerning article 30 (A/CONF.80/25).

The title and text of the resolution concerning article 30were adopted by 49 votes to 5, with 24 abstentions.

PEACEFUL SETTLEMENT OF DISPUTES7 (Articles A, B, C, Dand E, and annex) (A/CONF.80/C.1/L.60)

28. Mr. DUCULESCU (Romania) said his delegationconsidered that direct consultation and negotiationbetween the parties concerned, on the basis of equality ofStates and mutual respect, was to be regarded as the mainmeans for resolving disputes in the sphere of succession ofStates to treaties as in any other sphere of internationalrelations.

Articles A, B, C, D and E, and the annex thereto,relating to the peaceful settlement of disputes, wereadopted without a vote.

29. Mr. TORRES BERNARDEZ (Deputy ExecutiveSecretary of the Conference) said that he had been askedby the representative of the Secretary-General at theConference, Mr. Suy, the Legal Counsel of the UnitedNations, to make the following statement:

In adopting the articles on the peaceful settlement of disputesand the annex relating to conciliation procedure, the Conference hasdecided, inter alia, that the expenses of the Conciliation Com-mission shall be borne by the United Nations. The relevant text issimilar to that adopted at the United Nations Conference on theLaw of Treaties. Since this decision may have financial implicationsand entail expenses for the Organization, the General Assembly isclearly required to pronounce on its effects. The Conference mighttherefore decide, as was done in 1969, to request the UnitedNations General Assembly to consider paragraph 7 of the annex tothe Convention and take the appropriate measures.

30. The PRESIDENT said that in the light of thestatement just made by the Deputy Executive Secretary, ifthere were no objections he would take it that theConference decided to request the General Assembly of theUnited Nations to consider the provisions of paragraph 7 of

the annex to the Vienna Convention on Succession ofStates in respect of Treaties and take the appropriatemeasures.

It was so agreed.

DIVISION OF THE CONVENTION INTO PARTS AND SECTIONSAND TITLES THEREOF8 (A/CONF.80/C.1/10)

The division of the convention into parts and sectionsand titles thereof was adopted without a vote.

REPORT OF THE COMMITTEE OF THE WHOLE ON ITS WORKAT THE RESUMED SESSION OF THE CONFERENCE (A/CONF.80/30)

The Report of the Committee of the Whole on its workat the resumed session of the Conference was adoptedwithout a vote.

TITLE OF THE CONVENTION9 (A/CONF.80/27)

31. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said the Drafting Committee proposed that thefuture convention be entitled "Vienna Convention onSuccession of States in Respect of Treaties". That was alsothe title proposed by the International Law Commission,and it was in keeping with the wording of article 1, whichdetermined the scope of the convention. The inclusion ofthe name of the town where the Conference had takenplace was a tribute to the tradition which linked Viennawith the work for the progressive development and codifi-cation of international law.

32. Mr. LUKABU-K'HABOUJI (Zaire) said his delegationconsidered that the English term "in respect o f waspreferable to the French rendering "en matiere de" andthat it would like the Conference to note that it consideredit would have been better if the title in French hadcorresponded exactly to the English title.

The title of the convention was adopted without a vote.

Adoption of a convention and other instruments deemedappropriate and of the Final Act of the Conference(A/CONF.80/31)

[Agenda item 12]

33. The PRESIDENT invited the Conference to vote onthe text of the draft convention as a whole as contained indocument A/CONF.80/31.

The Convention was adopted by 76 votes to none, with4 abstentions.l °

For the discussion by the Committee of the Whole, see thesummary records of the 45th, 46th, 51st, 52nd and 57th meetings.

B For the discussion by the Committee of the Whole, see thesummary records of the 53rd and 57th meetings.

9 See the 13th plenary meeting, para. 69.

For the information provided subsequently by the del-egations of Spain and Turkey concerning their approval of theConvention, see the note at the end of the summary record of the15th plenary meeting.


34. Mr. RYBAKOV (Union of Soviet Socialist Republics)said that among the considerations that had led hisdelegation to vote for the Convention was the fact that thatinstrument constituted a further contribution to the codifi-cation and progressive development of international law. Itreflected a progressive conception of succession of States inrespect of treaties, according to which there was a cleardivision between cases of succession connected with theprocess of decolonization on the one hand, and cases ofsuccession connected with all other methods of theformation of new States on the other.

35. The consecration in the Convention of the appli-cation of the "clean slate" principle in the event ofdecolonization was, as the Chairman of the Committee ofthe Whole had remarked, of truly historic significance.Under that principle, States which gained their indepen-dence as the result of decolonization were freed from allthe treaties concluded with respect to them by the formermetropolitan Power. The statement of that principle gaveundeniable legal force to a rule that derived from theDeclaration on the Granting of Independence to ColonialCountries and Peoples that the General Assembly hadadopted, on the suggestion of the socialist countries, in itsresolution 1514 (XV)- The inclusion of that principle in theConvention was of not only political but also great practicalimportance.

36. Despite the great changes that had occurred with thecollapse of empires in Africa and other continents in recentdecades colonialism had not been entirely eliminated. Itclung tenaciously to life and continued to manifest itself asneo-colonialism in ever more varied and refined forms. Itwas therefore premature to say that there was no need forthe "clean slate" principle. Imperialist circles already hadon their conscience numerous coups d'etat and anti-govern-ment plots, infamous secret operations, and the physicaltorture of such valiant sons of Africa as Lumumba,Ngouabe, Mondlane and Cabral. In their continuing effortsto preserve, and indeed to consolidate,' their position inemerging countries and to direct the development of suchStates into forms of "partnership" acceptable to them-selves, they sought to exert direct pressure on the patrioticforces of Zimbabwe and Namibia and to bring about aneo-colonialist solution of the Rhodesian and Namibianquestions. In addition, they recruited accomplices fromamong the members of puppet and anti-popular regimes,promoted neo-colonialist relations based on exploitationand plunder, and attempted to undermine progressiveregimes and to weaken and, if possible, destroy the unity ofAfrican nations. They had even gone so far as to take directrnilitary action against young States in Africa and else-where, using their own armed forces, a move that called toînd the worst days of colonial banditry. The forces of•niperialism and reactionism were unable to reconcilethemselves to the profound political, social and economicchanges and the steady growth in strength that wereoccurring in young States.

3 ^ The embodiment in the Convention of the "cleans'ate" principle therefore dealt a severe blow to their aim ofMaintaining in force, in one form or another, the cabalistic

conditions of the bilateral treaties of the colonial era onwhich the plunder and exploitation of dependent peopleshad been based, while there was further cause for gratifi-cation in the fact that the Conference had decided againstthe inclusion in the Convention of provisions that wouldhave provided encouragement for separatist movements inprogressive developing countries and have opened the doorto imperialist interference in their affairs.

38. It was of the very greatest significance that theConference had reaffirmed in the Convention the principleof the inalienable sovereignty of peoples over their naturalwealth and resources, which now stood confirmed as aperemptory rule of contemporary international law thatwas of universal import. It was no secret that the principalreason why the forces of imperialism, racism and reactioncould not accept the changes that were occurring in Africaand elsewhere was that they wished to continue to exploit,and to maintain the control of their monopolies over, thenatural riches of formerly dependent peoples. That waswhy they had girdled the earth with military bases designedto protect their access to foreign resources. The presence inthe Convention of a provision emphasizing the illegality ofthe establishment of military bases on foreign soil was alsotherefore of great political and legal value.

39. The Soviet Union sought no advantages for itself onforeign territory; it did not go hunting for concessions, seekto attain political domination, or solicit permission to setup military bases. It remained firmly on the side of thepeoples that were struggling against the preservation of anyform of colonialism or neo-colonialism and for nationalindependence, social progress and democracy. It firmlycondemned the military and political intervention ofimperialism in the affairs of independent States and allencroachments upon their sovereignty and territorial in-tegrity.

40. A further great merit of the Convention was that itreaffirmed the applicability in cases of succession, otherthan those which arose from decolonization, of the rule ofcontinuity in treaty relations. It thereby underscored thegenerally recognized rule embodied in the Charter of theUnited Nations that pacta sunt servanda. That rule was ofgreat importance in contemporary international relations.The USSR believed that, in the modern world, theunwavering observance of treaty obligations was in theinterests of peace and security and of equitable and mutualbeneficial co-operation among States. It strove consistentlyto ensure that aggression and imperialist arbitrariness werereplaced in international relations by law and justice. It wasa party to almost 10,000 valid international agreements andhad proved itself in its 60 years of relations with foreigncountries to be a bona fide partner of irreproachablehonesty in the fulfilment of its obligations. The conscien-tious discharge of obligations deriving from generallyrecognized principles of international law was, indeed, arequirement of the Constitution of the USSR and of arecent law concerning the conclusion, implementation anddenunciation of international agreements.

41. It was to be regretted that there were forces in themodern world that were not interested in the loyal


discharge of agreements designed to promote peace andsecurity and that opposed detente and sought to stir uphatred among peoples. Those forces included the mostreactionary and inveterate circles of imperialism bound tothe military-industrial complex. Among them were mega-lomaniac, petty bourgeois nationalists who sought to satisfytheir great-Power, chauvinistic and hegemonistic ambitionsby compacting with imperialism and militarism and reck-lessly drove their own peoples—and, with them, the peoplesof their partners—along the road to disaster.

42. That being so, the provisions of the Conventionwhich confirmed the inviolability of existing frontiers weremost welcome, for they would serve as a powerful warningto those who harboured aggressive intentions against theterritory of neighbouring countries and who based theirforeign policy on the doctrine of racism and that of "livingspace". Incidentally, it was noteworthy that the Con-vention had been adopted in the very building from whichHitler had proclaimed his infamous philosophy of Le-bensraum and before which the forces that had destroyedHitlerism and trampled underfoot the swastika as a symbolof aggression and encroachment on the territory of othershad paraded each month. It was also noteworthy thatneither the Axis nor triple alliances had saved Hitler andthose who had shared his views from condemnation by thepeoples of the world or from their well-merited fate.

43. The Convention was, commendably, imbued with thespirit of peaceful co-existence and co-operation amongStates. Its Preamble stressed the special importance for thestrengthening of peace and international security of con-sistent observance of general multilateral treaties whichdealt with the codification and progressive development ofinternational law and those whose object and purpose wereof interest to the international community as a whole. Itthereby gave further emphasis to the basic principles ofinternational law concerning the prohibition of the use offorce and all forms of infringement of the inalienable rightsof all peoples set forth in the Charter of the UnitedNations. A further important point was that the Con-vention was based on a general understanding that suc-cession of States in respect of treaties did not affectdemilitarization of certain territories, freedom of navigationon international rivers and canals and in internationalstraits, or various other international regimes.

44. His delegation was satisfied with the results of thework of the Conference and considered the Convention torepresent a solid and substantial contribution to the causeof worldwide peace and justice. It was grateful to thePresident and the other officers of the Conference, themembers of other delegations and the secretariat for theirco-operation and zeal in bringing the Conference to such asuccessful conclusion.

45. Mr. JOMARD (Iraq), speaking on behalf of theGroup of Asian States, said that the adoption of theConvention marked a decisive phase in the codification ofinternational law and the legal history of mankind. By itswork, the Conference had ensured that international law,which had often served in the past as a cover forexploitation and crimes committed in its name, would

henceforth protect States at the various stages in theirhistory, particularly that of accession to independence.

46. The States for which he spoke wished to express theirthanks to the Austrian Government and people for theirhospitality and to the International Law Commission, theofficers of the Conference, and all the other persons whohad contributed to the successful outcome of the pro-ceedings.

Tribute to the memory of Mr. Jomo Kenyatta,President of Kenya

47. Mr. YACOUBA (Niger), speaking as the Chairman ofthe Group of African States, said that it was with thedeepest regret that he had to inform the Conference of thedeath of Mr. Jomo Kenyatta, President of Kenya. He wouldbe grateful if arrangements could be made for the paymentby the Conference of an appropriate tribute to that greatleader of Africa.

48. Mr. MAHUNDA (United Republic of Tanzania) saidhe supported the request by the representative of Niger.

49. Sir Ian SINCLAIR (United Kingdom) said that hespoke for the Group of Western European and Other Statesand for the United Kingdom as a member of the Com-monwealth in mourning the passing of a most noble son ofAfrica who had struggled for years in defence of theinterests of Kenya and of Africa as a whole. His delegationwished to express its condolences to the delegation ofKenya.

50. Mr. JOMARD (Iraq), speaking on behalf of theGroup of Asian States, said that he had been deeply movedby the announcement made by the Chairman of the Groupof African States and wished to express his condolences tothe members of that Group and to the delegation of Kenyain particular. Mr. Kenyatta had been a great leader of Africaand it was he who had laid the foundations of the strugglefor independence in that continent.

On the proposal of the President, the Conferenceobserved a minute's silence in tribute to the memory ofMr. Jomo Kenyatta, President of Kenya.


15th PLENARY MEETINGTuesday, 22 August 1978, at 3.30p.m


Tribute to the memory of Mr. Jomo Kenyatta, Presidentof Kenya (concluded)

1. The PRESIDENT invited the Chairmen of the variousregional groups to pay a tribute to the memory °*Mr. Jomo Kenyatta, President of Kenya.


2. Mr. YACOUBA (Niger), speaking on behalf of theAfrican Group, expressed the condolences of the AfricanGroup to the delegation of Kenya and, through it, to theGovernment and people of Kenya on the occasion of thedeath of the great African leader, Jomo Kenyatta. For theAfrican States, he had been the symbol of the struggle forindependence, since he had been one of the first sons ofAfrica to dare to tackle a situation inimical to the interestsof the African States. He had also been a symbol because,as a result of his effective and dynamic leadership, Kenyahad the privilege of being one of the most stable countriesin Africa. All those who belonged to the African Group hadbeen deeply affected by his death, for he had been a greatman with whom they would like to identify.

3. Mr. GUTIERREZ EVIA (Mexico), speaking on behalfof the Latin American Group, expressed the deep sense ofsorrow felt by the Latin American Group on the announce-ment of the death of President Kenyatta, who had been aneminent head of State, a great African leader and a man ofworld stature. With his patriotism, extensive knowledge,determination, understanding and good nature, he hadworked untiringly for the well-being and development notonly of his own people, but also of all those aspiring tofreedom and independence. The maintenance of peace hadbeen his main objective throughout his fruitful life.

4. Mrs. SLAMOVA (Czechoslovakia), speaking on behalfof the Group of Eastern European States, associated herselfwith the condolences presented to the delegation of Kenyaon the occasion of the death of the great politician,President Kenyatta. Through the President of the Con-ference, she requested the delegation of Kenya to conveythe condolences of the Group of Eastern European Statesto the people and Government of Kenya. In EasternEurope, President Kenyatta would be remembered as onewho had fought hard for the people of his country and forthe peoples of the other African countries as well.

5. Sir Ian SINCLAIR (United Kingdom), speaking onbehalf of the Group of Western European and Other States,said that, with the death of Mr. Jomo Kenyatta, Africa and,indeed, the entire world, had lost a great statesman whoseinfluence had extended far beyond Kenya and Africa. Itcould be said that, by his courage, firmness, understandingand wisdom, he had forged a nation. For his own people, hehad been a patriarch and, for other peoples, he hadsymbolized Africa. The Group of Western European andOther States expressed its deepest sympathy to the Kenyandelegation and, through it, to the people and Government°f Kenya and to all the other African delegations.

6^ Mr. BRECKENRIDGE (Sri Lanka), speaking on behalf°f the Group of Non-Aligned Countries, said it had beenWith great sorrow that those countries had learned of thedeath of President Kenyatta. They would remember withpride the way in which he had led his people and the placewhich he had occupied in the community of nations. The^roup of Non-Aligned Countries expressed its condolences^ the delegation of Kenya, and, through it, to theGovernment and people of Kenya.

7. The PRESIDENT requested the delegation of Kenyato convey to the people and Government of Kenya thecondolences expressed during the proceedings.

8. Mr. MUDHO (Kenya) thanked the Conference for themoving tribute it had paid to the memory of the firstPresident and founder of the Republic of Kenya. He wouldconvey the condolences of the various regional groups toMr. Kenyatta's family and to the people and Governmentof Kenya.

9. All Kenyans were now mourning the sudden passingaway of a man who had spent his entire adult life in theservice of his people, his country and all mankind, whowere the beneficiaries of his great vision and spirit ofsacrifice. Despite everything he had done for Kenya andeverything he had given to it, all he had asked of hiscountrymen in return was that they should love oneanother and learn to cherish peace, progress and stability.He had exhorted every Kenyan to be proud of his countryand to forgive, but not forget, the past, an appeal to whichthere had been a broad response. He had enjoyed theadmiration, affection and respect of every Kenyan. He(Mr. Mudho) expressed the hope that what PresidentKenyatta had always wanted for his country—namely,continued peace, prosperity and stability in a strong andunited State from which discrimination was absent, in thetrue spirit of the motto which President Kenyatta had givenhis country: "Harambee"—would be realized.

77ze meeting was suspended at 3.45 p.m. and resumed at3.55 p.m.

Adoption of a convention and other instruments deemedappropriate and of the Final Act of the Conference

[Agenda item 12] (concluded)

Adoption of the Convention as a whole

10. The PRESIDENT invited representatives who wishedto do so to make general statements on the Conventionadopted at the 14th plenary meeting or to explain theirvotes.

11. Mr. PEREZ CHIRIBOGA (Venezuela) said that hisdelegation had voted in favour of the Convention as awhole, for it marked an important stage in the developmentof public international law. His Government would stillhave to decide, at the appropriate time, whether it couldsign the Convention.

12. His delegation had been able to vote in favour of theConvention because of the existence of draft article 13,entitled "Questions relating to the validity of a treaty", andbecause of the International Law Commission's interpret-ation of article 11, relating to boundary regimes. Inparagraph 20 of the commentary to that article, theInternational Law Commission had stated, with regard toits formulation, that: "In accepting this formulation theCommission underlined the purely negative character of therule, which goes no further than to deny that anysuccession of States simply by reason of its occurrence


affects a boundary established by a treaty or a boundaryregime so established. As already pointed out [in paragraph17 of the commentary] it leaves untouched any legalground that may exist for challenging the boundary, such asself-determination or the invalidity of the treaty, just as italso leaves untouched any legal ground of defence to such achallenge. The Commission was also agreed that thisnegative rule must apply equally to any boundary regimeestablished by a treaty, whether the same treaty asestablished the boundary or a separate treaty" (A/CONF.80/4, p. 42).

13. Without article 13 and that interpretation of article11, which left aside any such legal grounds that might existfor challenging a boundary, such as the invalidity of thetreaty or of an arbitral award, his delegation would nothave been able to vote in favour of the Convention.

14. Mr. HERNDL (Austria) welcomed the fact that theConference had adopted, virtually unanimously, anotherConvention with which Vienna's name would be associated.Apart from some minor amendments, the text adopted wasbasically the same as the draft of the International LawCommission; that was proof of the high quality of theCommission's work. It was now time to look to the future,to try to forget the questions of colonialism and imperi-alism raised during the discussions and to seek to apply theConvention effectively.

15. The International Law Commission had rightly givenpriority to recent practice, which was particularly abundanton the subject and which tended towards the reversal ofolder practice. The Convention clearly showed the relation-ship between the "clean slate" rule and the principle ofcontinuity. The application of that rule was justified in thecase of newly independent States because of the oftendifficult circumstances in which they had attained indepen-dence. Now that the process of decolonization was nearingits end, it was the principle of continuity, as embodied inthe Convention, that would henceforth apply to States, inaccordance with the two basic principles underlying theConvention and general international law, namely, theprinciple of pacta sunt servanda and the principle of goodfaith.

16. Although it had voted in favour of the Convention,his delegation was not entirely satisfied with all itsprovisions and, in particular, those to which it hadsubmitted amendments. For example, it would have pre-ferred account to be taken, in article 19, of the amendmentit had submitted concerning the further reservations whicha newly independent State could formulate to a multilateraltreaty.

17. His delegation welcomed the outcome of the dis-cussion of the issue of the settlement of disputes, despitethe fact that the ideal solution—the compulsory judicialsettlement of disputes—had not been adopted. The Con-vention nevertheless contained a mechanism for thesettlement of disputes that was stricter than that of otherConventions; there was thus reason to hope that theinternational community was moving towards the com-pulsory judicial settlement of disputes.

18. His delegation had declared its support for theprinciple of permanent sovereignty over natural resourcesand had therefore voted in favour of article 12 bis, for itwas convinced that States must have full sovereignty overtheir natural resources. At one point in its history, Austriahad had to pay dearly to recover its sovereignty over itsnatural resources. Article 12 bis had the merit of treatingthe principle of permanent sovereignty over natural re-sources as an element of international law.

19. Mr. FONT BLAZQUEZ (Spain) welcomed the factthat, owing to its perseverence, the Conference hadsucceeded in adopting the text of the Convention onSuccession of States in respect of Treaties. The difficultiesexperienced by his delegation related solely to articles 30and 33. Article 30 would probably create more difficultiesthan it would solve. The position of his delegation withregard to article 33 was reflected in the summary records ofthe relevant meetings. Without prejudice to the position ofthe Spanish Government with respect to the signature andratification of the Convention, his delegation could havevoted without hesitation in favour of the Convention, whileexplaining its objections to articles 30 and 33; in the event,however, it had finally received instructions to vote for itsadoption.

20. Mr. RITTER (Switzerland) said that, although hisdelegation had been obliged to abstain in the vote on theConvention as a whole, no dramatic significance should beattached to its decision to do so. The value of the workdone by the International Law Commission and theConference should not be underestimated. In that respect,he referred to a constructive provision, namely, article 7,which allowed for greater flexibility in the application ofthe Convention. Articles 12 and 12 bis made the Con-vention acceptable to a large number of delegations. For hisown delegation, the main problem, which had compelled itto abstain in the vote, lay in article 33. The InternationalLaw Commission, in its commentary to article 33, hadshown that the "clean slate" rule dominated the practice ofpublic international law, but had proposed a deviationfrom that rule in the case of new States other than newlyindependent States. The Conference had followed theCommission's suggestion in that regard, but, in doing so, ithad introduced a twofold duality into contemporaryinternational law: on the one hand, newly independentStates were distinguished from other new States and on theother hand, in the case of a new State, general internationallaw was distinguished from the law laid down in theConvention.

21. It was normal for a codification conference to adoptrules that departed from public international law, but thepresent Convention departed from precedent: although, inearlier codification conventions, States had adopted newrules which they then applied to themselves, the presentConference had taken decisions which would affect thefuture of States that did not yet exist. His delegationentertained doubts concerning the possibilities of applyingarticle 33 in practice. Either the new State would not ratifythe Convention and would apply general international law,


and hence solutions that ran counter to those envisaged inthe Convention, or it would ratify the Convention and styleitself a newly independent State. As there were no criteriafor distinguishing newly independent States from other newStates, there would be nothing to prevent new States fromacting in that manner, even though the Conference haddeleted from the draft the virtually explicit invitation toStates, made in paragraph 3 of article 33, to take suchaction.

22. It might also happen that a new State which hadratified the Convention subsequently realized that it wouldprefer not to apply the rule of continuity in certain cases. Itcould then plead that, during the period which had elapsedbetween its attainment of independence and ratification ofthe Convention, it had applied general international lawterminating the application of the treaties of the pre-decessor State, and that the Convention could not re-establish the rule of continuity with retroactive effect. Inother words, the sole foundation for the principle ofcontinuity was the consent of States, and it would havebeen preferable for the Convention to have made that clearinstead of imposing the principle of continuity as a generalrule. His comments were not intended as a criticism of theConvention, but the legal implications of the solutionadopted in the Convention were so far-reaching that theSwiss Government would have to study them verythoroughly before it could sign and ratify the Convention.

23. He noted that Switzerland did not have the status ofeither predecessor or successor State; by virtue of its linkswith the outside world, its position was typically that of athird State and it consequently attached more importancethan many other States to continuity in treaty relations. Ithoped, therefore, that the rule of continuity wouldcontinue to be the solution of the future, but that it wouldbe based on consent, in keeping with the policy which theSwiss Government had followed to its own satisfaction andto that of third countries during the period of decoloniz-ation, and which had been reflected in the acceptance ofdeclarations of continuity by new States or the negotiationof continuity agreements.

24. He concluded by stating that the Swiss delegationhad striven for juridical exactitude during the work ofdrafting the Convention and that the positions it hadespoused in submitting proposals itself or in supportingproposals put forward by other delegations had beenmotivated entirely, to the exclusion of all other consider-ations, by its concern to ensure such exactitude.

25- Mr. MAKAREVICH (Ukrainian Soviet SocialistRepublic) said that the unflagging efforts of the Inter-national Law Commission had now been crowned by theadoption of a Convention which represented a resoundingsuccess both for the Commission and for all States Members°f the United Nations which strove for the progressivedevelopment of international law and contributed to thestruggle against colonialism and imperialism. His delegationcongratulated the Commission on the fact that its draft,alter thorough consideration, had been adopted with veryfew changes. The Conference had codified the basic

elements of existing international law and had contributedto the progressive development of international law. Inter-national treaties, which were the instruments of peacefulrelations between States, should enable States to work forpeace on the basis of justice and equality. Those were infact the two criteria underpinning the Convention, whichwas associated with the principles of self-determination, ofthe permanent sovereignty of States over their naturalresources and of the right of States freely to choose theirpolicies and to conduct their relations, particularly treatyrelations, with other States.

26. The Convention would enable States to use multi-lateral treaties to better advantage in the interests of thedevelopment of international law and of world peace andsecurity. The Convention contained a number of provisionsbased on recognized rules of international law, such as theinviolability of frontiers, and the rule of continuity, whichreflected contemporary reality so far as succession of Stateswas concerned. The reinforcement of those principles bycodification would make it possible for States to strive forworld peace and security and to improve internationalrelations on the basis of respect for third States and for thefreedom of ah1 peoples.

27. His delegation welcomed the provisions on thesettlement of disputes, which showed that most States hadnot been in favour of adopting a compulsory procedure,and considered that the article adopted on the questionwent as far as it was possible to go at the present stage.

28. Mr. MARESCA (Italy) said that his delegation hadvoted in favour of the Convention, since it met a needwithin the legal order. The process of decolonization hadgiven new life to the legal regime of the succession of Statesand had thus made it necessary to vest that regime with thelegal certainty of written rules. The Vienna Convention onSuccession of States in respect of Treaties was the naturaland necessary sequel to the Vienna Convention on the Lawof Treaties, which had left a gap. The two Conventionscombined in defining the law of treaties. The main featureof the Convention just adopted by the Conference was theequitable balance which it struck between two differentand even contradictory principles, that of the "clean slate"and that of continuity. The former principle concernednewly independent States, while the latter applied toeverything that was still rooted in past realities. Hisdelegation fully appreciated the reference in the preambleto customary law, which filled unavoidable gaps andclarified points that might otherwise remain obscure.

29. It was naturally impossible for the Convention tosatisfy all the delegations which had had to make sacrifices.His delegation, for instance, would have liked the Con-ference to adopt more far-reaching rules, but had had toagree to a compromise; it would have welcomed theestablishment of a comprehensive procedure for the settle-ment of disputes, in other words, one which made provisionfor recourse to the International Court of Justice. Never-theless, the provisions which had been adopted on thatsubject and included in the body of the Convention werepreferable to the protocols adopted in the past.


30. He was glad to see that the Convention would bearthe name of Vienna, thus continuing a long-standingtradition dating back to the Congress of Vienna of 1815,which had laid down rules that were still in force. Heconcluded by expressing the hope that other Conventionswould also see the light of day in Vienna, the capital ofinternational law.

31. Mr. NAKAGAWA (Japan) said that, despite thereservations which his delegation had expressed in regard tocertain provisions, it considered that the Convention as awhole contributed to the progressive development andcodification of international law and had therefore voted infavour of its adoption.

32. Mr. DOGAN (Turkey) said he regretted that he hadbeen unable to associate his delegation with the greatmajority of delegations which had voted in favour of thetext of the Convention as a whole. He hoped, however, thatthe Turkish Government would eventually be able toovercome the legal and administrative difficulties createdfor it by certain provisions, particularly those of article 33and article 2.

33. Mr. ABOU-ALI (Egypt) said that he had voted infavour of the Convention because, in his opinion, it markedfurther progress in the codification and progressive devel-opment of international law and it struck a proper balancebetween the two principles on which international relationswere founded—the "clean slate" principle and the principleof continuity.

34. Mr. ARIFF (Malaysia) said that, he too, had voted infavour of the Convention, because he considered it veryuseful. He thanked the Austrian Government for itswelcome and, in addition, all those who had enabled theConference to achieve its purpose.

35. Mr. PERE (France) thanked all those who hadcontributed to the success of the Conference and expressedhis gratitude for the welcome extended to the participantsby the people of Austria and the city of Vienna.

36. His delegation had, with great regret, abstainedduring the vote on the Convention. From the outset hisGovernment had questioned the advisability and feasibilityof codifying in the form of a convention such a delicatematter as succession of States in respect of treaties.Nevertheless, heeding the legitimate concerns of the devel-oping and the newly independent countries, it had agreedto contribute to the Conference and to provide it with itsjuridical and practical experience. Unfortunately, hisdelegation had, for purely juridical reasons, been unable toagree to certain provisions of the text of the Convention,particularly articles 2, 12 bis, 33 and 34 and some of thefinal clauses, and it had therefore been unable to vote infavour of the Convention.

37. However, its attitude towards the Convention wouldnot of course prevent his Government from consideringwith an open mind and with understanding any cases ofsuccession of States in which it might be involved.

DRAFT RESOLUTIONS SUBMITTED DIRECTLY TO THEPLENARY CONFERENCE

Tribute to the Special Rapporteurs and the Expert Con-sultant (A/CONF.80/L.2)the draft resolution was adopted by acclamation.

Tribute to the International Law Commission(A/CONF.80/L.3)

The draft resolution was adopted by acclamation.

Tribute to the people and to the Federal Government ofAustria (A/CONF.80/L.4)

'The draft resolution was adopted by acclamation.

38. Mr. HERNDL (Austria) thanked the sponsors of draftresolution A/CONF.80/L.4 and the States that they re-presented. The Austrian Government was proud to haveacted as host to the Conference in Vienna and tookpleasure in the climate of understanding which had markedits work throughout. He expressed his gratitude to del-egations and to the Secretariat for contributing so much tothe success of the Conference.

Adoption of the Final Act of the Conference (A/CONF.80/26;

39. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that in paragraph 25 of the document onmethods of work and procedures adopted by the Con-ference that might be applicable to its resumed session(A/CONF.80/17), of which the Conference had taken noteat its 10th plenary meeting,1 it had been suggested that thepreparation of the Final Act of the Conference could beleft to the Drafting Committee. At its 24th meeting, on 21August 1978, the Drafting Committee had adopted thedraft Final Act, which was now before the Conference indocument A/CONF.80/26.

40. The document described in chronological fashion, thebackground to and work of the Conference, with a briefindication of its structure and methods of work and a list ofthe States which had participated in the Conference and ofthose which had been represented by observers. It alsomentioned the United Nations Council for Namibia and theinternational organizations and other bodies represented atthe Conference. Lastly, it indicated the membership andthe titles of the subsidiary organs established by theConference and the names of the officers of the Conferenceand of its organs. Naturally, it emphasized the outcome ofthe endeavours of the Conference, in other words, theadoption of the Vienna Convention on Succession of Statesin respect of Treaties.

41. The Final Act, to which the resolutions adopted bythe Conference were annexed, could be signed by therepresentatives of the States participating in the Conference

See 10th plenary meeting, para. 4.


at the same time as the Convention, on the day on whichthe latter was opened for signature.

The Final Act of the Conference was adopted.

42. Sir Ian SINCLAIR (United Kingdom), speaking onbehalf of the Group of Western European and Other States,expressed gratitude to the President of the Conference, tothe Chairman of the Committee of the Whole and also itsVice-Chairman, who had presided over the Informal Con-sultations Group, and to the Rapporteur and the membersof the secretariat. He paid a tribute to the InternationalLaw Commission, which could claim to have fathered theConvention, and thanked the Austrian Government for itsgenerous hospitality.

43. Mr. GIL MASS A (Mexico), speaking on behalf of theLatin American Group, said that he had voted in favour ofthe Convention, which he considered to be a usefulinstrument in the codification and progressive developmentof international law. He congratulated the President of theConference, who had enabled the Conference to bring to asuccessful conclusion work that had often proved difficult,and also thanked the Chairman of the Committee of theWhole, the other officers and the Expert Consultant andthe secretariat. He also paid a tribute to the InternationalLaw Commission and thanked the Austrian Government forits welcome.

44. Mrs. SLAMOVA (Czechoslovakia), speaking onbehalf of the Group of Eastern European States, said thatshe, too, wished to congratulate the President of theConference and the officers of the Committee of theWhole. The Conference could not have been successful inits work without the excellent draft prepared by theInternational Law Commission; she thanked all members ofthe Commission, especially those who had participated inthe Conference. Owing to the endeavours of the DraftingCommittee and of the Informal Consultations Group, andto the spirit of co-operation which had prevailed, theConference had been able to carry out an extremelycomplex task and to adopt an excellent Convention whichshe hoped would be acceptable to all States.

45. Mr. YACOUBA (Niger), speaking on behalf of theAfrican Group, associated himself with the tributes voicedby the representatives of the other regional groups. He tookpleasure in the success of the Conference, to which theAfrican Group had contributed by the positive attitudewhich it had displayed throughout what had sometimesbeen difficult discussions. The Convention marked animportant stage in the efforts to achieve a more equitableand more humane codification of international law, since itenabled the newly independent States to free themselvesfrom any liability deriving from commitments into whichthey had not themselves entered. He wished to commendthe International Law Commission and to express hisgratitude to the people and the Government of Austria fortheir hospitality.

46. Mr. SETTE CAMARA (Brazil), speaking as Chairmanof the International Law Commission, thanked the Con-ference for having adopted a resolution that paid a tributeto the Commission. He expressed appreciation to SirHumphrey Waldock, the previous Special Rapporteur, andwent on to point out that once again the International LawCommission had demonstrated the excellence of itsmethods of work, since the Conference had adopted mostof the proposals in the basic text and had departed from itsimply to add provisions that the Commission had not hadthe opportunity to consider, such as the provisions on thesettlement of disputes.

47. The PRESIDENT thanked delegations for their kindwords in his regard. He expressed his gratitude to theparticipants in the Conference and to the officials of theSecretariat, who had been the architects of the success ofthe Conference.

77ze meeting rose at 5.30 p. m.

** *

Note: On 23 August 1978, before the signature of the FinalAct, the delegations of Spain and Turkey informed thesecretariat that they were now authorized to approve theConvention.

SUMMARY RECORDS OF MEETINGS OF THE COMMITTEE OF THE WHOLE

37th MEETING1

Monday, 31 My 1978, at 4p.m.

Chairman: Mr. RIAD (Egypt)


[Agenda item 11] {continued)

ARTICLE 30 (Effects of a uniting of States in respect oftreaties in force at the date of the succession of States)2

1. The CHAIRMAN invited the Committee to resume itsconsideration of the draft articles submitted by theInternational Law Commission3 by examining article 30.He drew attention to the amendments to that articleproposed by the Federal Republic of Germany(A/CONF.80/C.l/L.45/Rev.l), Switzerland (A/CONF.80/C.1/L44) and Japan (A/CONF.80/C.1/L.49).

2. Mr. TREVIRANUS (Federal Republic of Germany),introducing the amendment submitted by his delegation,said that article 30 marked the entry to a new field, forPart IV of the draft clearly contained rules of progressivedevelopment and the article was the first, with the

The records of the 1st to 36th meetings of the Committeeof the Whole, held in 1977, are contained in the Official Records ofthe United Nations Conference on Succession of States in Respectof Treaties, vol. I, Summary records of the plenary meetings and offAe meetings of the Committee of the Whole (United Nationspublication, Sales No. E.78.V.8), pp. 21 et seq.

2The following amendments were submitted: Switzerland,

A/CONF.80/C.1/L44 (1977 session); Federal Republic of Ger-many, A/CONF.80/C.1/L45 (1977 session), the revised version ofwhich (A/CONF.80/C.l/L.45/Rev.l) was submitted at the resumedsession; Japan, A/CONF.80/C.1/L.49 (resumed session).

Official Records of the General Assembly, Twenty-ninthSession, Supplement No. 10 (A/9610/Rev.l), chap. II. (The report°f the International Law Commission on the work of its twenty-^Kth session also appears in the Yearbook of the International LawCommission, 1974, vol. II, part one, pp. 157 et seq.) The Confer-e e had before it a reprint of chapter II of that reportIA/CONF.80/4) and a working paper (A/CONF.80/WP.1) contain-j E the draft articles adopted by the International Law Commission111 English, French, Spanish and Russian; separate texts in Aiabic^d Chinese were also issued under the same symbol. In this volume,°r Practical reasons, Conference document A/CONF.80/4 is used as

^ reference for the draft articles adopted by the International Lawi i and for the commentaries on them.

exception of articles 11 and 12, to introduce the principleof continuity. His delegation was generally in favour of theInternational Law Commission's decision that there shouldbe continuity of treaty regimes in the event of the unitingof States. That was, indeed, necessary in order to preservestability in treaty relations.

3. There was, however, a marked contrast between the"clean slate" formula and the other provisions which theConference had adopted in relation to newly independentStates, taken together, and the principle of continuity thatwas now proposed. His delegation had no fear that the"clean slate" formula would lead to difficulties, since newlyindependent States had historically shown a tendency tomaintain the treaty links of their predecessors. The pactasunt servanda rule as laid down in the draft articles wasmitigated only by a limited number of escape clauses. Itwas, however, his delegation's impression that the escapeclauses contained in article 30 left too much scope fordiffering interpretations. It was in order to render thoseclauses less ambiguous and, at the same time, to ensure thatthe article took into account the elements qualifying theipso jure continuity to which the International LawCommission had referred in paragraph 28 of its commen-tary on articles 30, 31 and 32 (A/CONF.80/4, p. 98) thathis delegation proposed its amendment.

4. The situation that would obtain after the uniting ofStates required special treatment. In a State composed ofseveral previously independent entities, there would bedifferent treaty regimes, with different rules applying inindividual areas of the new State, or even within the samearea. Conflicts were therefore inevitable. Some treatiesmight even become inoperable due to the application ofanother instrument in the same or another part of the newState. Such situations were particularly likely to arise inconnexion with agreements in the field of trade, tariffs,most-favoured-nation treatment, or extradition. The escapeclauses currently provided in article 30 were inadequate toprovide a just and equitable solution to such conflicts, sincethey concerned one treaty only and did not take account ofthe possibility that other treaties might be in force in theterritory concerned.

5. The first part of his delegation's amendment illustratedits belief that, where treaties were wholly or partlyincompatible, automatic continuity of an existing treatyregime would be impossible. Contrary to what had beenproposed in the first version of the amendment(A/CONF.80/C.1/L.45), the second part of the proposal nolonger provided for the extinction of both the incompatibletreaties, but left it to the new State to choose between theconflicting provisions. That would enable the new State tosuit its domestic needs and would, at the same time, ensure

31

32 Summary records — Committee of the Whole

at least a measure of stability in treaty relations. Theobjection that a State having freedom of choice wouldinevitably select the regime that was most favourable toitself and might in so doing neglect its partners' interestscould also be raised against the possibility of the extensionof the territorial scope of a treaty offered by theInternational Law Commission in paragraph 2, sub-paragraph (a), of its version of article 30. The InternationalLaw Commission's provision, however, said nothing aboutwhat would happen if a treaty that was extended to theentire territory of a successor State was incompatible withother obligations of that State or of one of its parts.

6. His delegation was well aware that its proposal mightnot represent the only solution to the problem, and ittherefore remained open to other suggestions. It alsoappreciated that some delegations might wish to put thesecond part of its amendment to a separate vote. It was,however, convinced that the first part of the amendmentwas essential in order to remedy a genuine omission fromthe current text of article 30.

7. Mr. RITTER (Switzerland) said that the amendmentproposed by his delegation took account of the possibilitythat the boundaries of a State which became part of afederal successor State might be subject to modificationafter the date of the succession. That such a situation mightarise in practice could be seen from reference to, forexample, the case of the Canton of Geneva. Following itsaccession to the Swiss Federation in 1848, the Canton ofGeneva had maintained a certain capacity to concludeinternational treaties, as permitted by the Swiss Consti-tution, and its boundaries had changed. If paragraph 2 ofthe International Law Commission's draft article wereapplied without modification to an entity like the Cantonof Geneva, the effect would be to institute a double regime,under which treaties concluded by the entity prior to itsaccession to the Federation would apply within theboundaries that had existed prior to that accession, whereasthe territorial scope of treaties concluded after that datewould vary as the boundaries of the entity changed. Toavoid that problem, his delegation proposed that theConference adopt the principle of the mutability oftreaties, in keeping with the variations in the boundaries ofthe States which concluded them. The effect of itsamendment would be, in essence, to ensure that theconstituent parts of a federal successor State were subjectto the same regime as the federation as a whole. That wouldmeet a practical need and ensure security of the law forindividuals.

8. Mr. NAKAGAWA (Japan), introducing the amend-ment submitted by his delegation, said that his delegationshared the view that the uniting of States would probablybecome a more frequent method of the formation ofsuccessor States in the future. It was, therefore, all the moreimportant that the Conference should formulate a reason-able and equitable rule governing the effects of the unitingof States in respect of treaties. Basically, his delegation hadno difficulty in endorsing the principle of continuity asproposed by the International Law Commission in its draft

article 30. It nevertheless felt that the number of excep-tions to that rule for which the article currently providedmust be increased. That was because there might besituations in which it would be practically impossible, orinequitable, to limit the territorial scope of a treaty, sincesuch limitation might, for example, enable a criminal toevade the application of an extradition treaty by moving toa part of the territory of the successor State to which thattreaty did not apply. That shortcoming could not becompletely remedied by the extension of a treaty to theentire territory of the successor State through notificationby the successor State or agreement between the Statesparties concerned in accordance with paragraph 2 of ar-ticle 30. It could, however, be rectified by reversing thegeneral rule laid down in article 30 and by providing that atreaty would apply to the entire territory of the successorState if the two conditions set forth in his delegation'sproposed amendment were fulfilled.

9. Mrs. THAKORE (India) said that, in article 30, theInternational Law Commission had adopted the principle ofipso jure continuity of treaty obligations with respect totreaties in force at the date of the succession of States, onthe basis of State practice, the opinion of the majority ofwriters, and above all the need to preserve the stability oftreaty relations. Her delegation, however, had some doubtsabout the advisability of rigidly pursuing the principle ofcontinuity in the case of succession of States arising from auniting of States, and could not understand why theprinciple of self-determination should not be applied in thatcase, as in the case of a newly independent State. In theview of her delegation, it should be left to the new Statecreated by the uniting or separation of States to decidewhether or not it wished to accept the obligationscontracted by its predecessor State.

10. As the international community was likely to beconfronted in the near future with more cases of successionof States arising from a uniting of States, because of theincreasing tendency of States to group themselves into newforms of associations, the importance of that category ofsuccession of States hardly needed to be emphasized. Itmight therefore be questioned whether considerations ofstability of treaty relations in that case were so paramountas to require the sacrifice of the principle of self-determination. Stability would not necessarily result fromthe indiscriminate application of the principle of oonti-nuity, without regard to the wishes of the State in question.The principle of consent was the basic principle of the lawof treaties, and adherence to that cardinal principle wasmore likely than anything else to contribute to the stabilityof treaty relations and the promotion of internationalco-operation.

11. As to the amendments to article 30, the Indiandelegation viewed with sympathy the idea underlying theamendment proposed by the Federal Republic of Germanyand was of the opinion that the principle underlying thatamendment would also apply to articles 33, 34, 35 and 36.The amendment proposed by Switzerland might perhaps beconsidered by the Drafting Committee with a view tobringing out its intention more clearly. She would comment

37th meeting - 31 July 1978 33

on the Japanese proposal, which had just been circulated,later on.

12. Mr. ROVINE (United States of America) said that hisdelegation viewed with favour article 30 as drafted by theInternational Law Commission. The continuity rule was theproper approach for both bilateral and multilateral treatiesin the case of a uniting of States, and was not inconsistentwith the right of self-determination. The problem witharticle 30, however, was that it omitted to address itself tothe serious problem of conflicting treaty obligations, aproblem which had not been focussed on by the Inter-national Law Commission either in its articles or in thecommentary; the Conference should therefore examine thequestion of conflicting treaty regimes, which could easilybe envisaged as arising in such matters as trade agreements,for example.

13. One possible solution had been suggested by theFederal Republic of Germany, (A/CONF.80/C.1/L.45/Rev.l) namely, that the successor State would make achoice, but such a solution might not protect all the treatyinterests involved and might result in one State beingunhappy with an approach sanctioned by a rule of theconvention. A second possibility, that originally proposedby the Federal Republic of Germany (A/CONF.80/C.1/L.45) was to negate such conflicting treaty provisions,a harsh but nevertheless possible solution. A third ap-proach, which was to be proposed by the United States asarticle 30 bis (A/CONF.80/C.1/L.50), would requirenations which had succeeded to conflicting treaty regimesto try to end conflicts by consultation and negotiation withthe other treaty party or parties; if after a reasonable periodit proved impossible to resolve the conflicts, then theconflicting treaty provision would come to an end. Anyquestions of separability could be resolved by reference toarticle 44 of the Vienna Convention on the Law ofTreaties4 A fourth possible solution was negotiation alone,by imposing a requirement on States to negotiate with theparties in question where there were conflicting treatyprovisions to which they had succeeded. Such a solutionmight take the form either of an article or of a simpleconference resolution to indicate awareness of the problembut the absence of a precise rule. The Conference had aduty to consider all four approaches in greater depth.

H. Mr. STUTTERHEIM (Netherlands) said that hisdelegation favoured the continuity principle with regard totreaties, unless there were major reasons for admitting anexception as in the case of newly independent States. Thesettlement of disputes should be expressly provided for.

15- His delegation had some difficulty with the amend-ments proposed by the Federal Republic of Germany inthat a successor State in the sense of the article, wasAfferent from a decolonized State. It therefore preferred*"-e inclusion of a provision such as the article 30 bis,

4See the text of the Convention in Official Records of the

United Nations Conference on the Law of Treaties, Documents ofthe Conference (United Nations publication, Sales No. E.70.V.5),pP- 287 et seq.

proposed by the United States, or a resolution recognizingthe problem. It could support the amendment proposed bySwitzerland. It had not had time to consider the Japaneseproposal.

16. Mr. YASSEEN (United Arab Emirates) said that theprovisions of article 30 as drafted by the International LawCommission invoked the principle of pacta sunt servandaand that it was not possible for any State, in the case of auniting of States, to forgo such contractual obligations. Hisdelegation could support an article invoking that funda-mental principle.

17. Of the amendments before the Committee, that ofthe Federal Republic of Germany was not acceptable, sinceit offered a new State the possibility of choosing betweenone obligation or another; it would clearly not have thefreedom to choose if international law were invoked.

18. His delegation approved the spirit of the Japaneseproposal but saw technical difficulties in that the territoryof the new State was not bound to apply the treaty, yetwas bound by the treaty itself; such a situation ran counterto the principle of pacta sunt servanda and was thereforeunacceptable. Account had to be taken of States joined bya convention but not parties to original treaties in force inother territories.

19. The Swiss proposal raised the question of theapplication of the moving frontiers theory. His delegationhad no technical objection to the amendment but was notcertain whether it was in fact necessary. It did, however,deserve further consideration.

20. With regard to the point made by the United States,he did not consider it part of the task of the Conference toconsider the question of conflicting treaty obligations,which was a vast question and in his opinion was alreadysettled by the Vienna Convention on the Law of Treaties.

21. Mr. MARESCA (Italy) said that article 30, whichmarked the dividing line between the two main sections ofthe draft articles, reflected that same spirit of dynamismwhich had always animated the international community inthe matter of succession of States. It seemed to him,however, that paragraph 1 was lacking in one importantelement, since subparagraph (b), which provided for anexception to the rule laid down in the opening clause incases where the application of the treaty "would beincompatible with its object and purpose or would radicallychange the conditions" for its operation, did not extend tocases of possible conflict with previously existing rules.Paragraph 2 likewise gave him some cause for concern for,as he read it, its terms would apply irrespective of the formof union adopted by the new State. Taking the case ofItaly, for example, had all the treaties existing prior to itsunification remained in force, there would have been utterchaos: happily, that had not been the case. He thereforeconsidered that some provision should be added to para-graph 2 to avoid what he would term a "patchwork" effecton the whole of the new territory.

22. On those grounds, he welcomed the amendmentproposed by the Federal Republic of Germany which laid


down in clear terms that incompatibility with any existingobligations would also be a reason for avoiding theautomatic application of a treaty. Paragraph 2 of the articlecould perhaps be accepted on the understanding that thesuccessor State must have opened negotiations with thepredecessor States and that only in the event of the failureof such negotiations would the successor State be the solejudge in the matter. Alternatively, paragraph 2 could bedeleted, although personally he would prefer it to beretained.

23. He likewise welcomed the amendment proposed bySwitzerland, since it defined the scope of paragraph 2 as itapplied to the case of a federal, as opposed to a unitary,State. Its inclusion in the draft article would reflect theprinciple of the mutability of frontiers.

24. Lastly, he endorsed the amendment proposed byJapan which, by providing for the application of a treatythroughout the whole of a federated State, would introducean element of balance in regard to paragraph 2.

25. Mrs. BOKOR-SZEGO (Hungary) said that the Swissamendment seemed to differ from the terms of article 30 inthat it dealt not with a succession of States in the strictsense but rather with a change occurring in the territory ofa subject of international law following unification. Toassist her in the comprehension of that amendment, shewould ask the Swiss representative to elaborate on hisproposal.

26. Mr. RITTER (Switzerland) said he agreed that anychange in the frontiers between the States members of aunion, whether federal or other, was not a succession ofStates within the terms of the convention. The purpose ofhis delegation's proposal, however, was not to assimilatethat question to a succession of States as such but rather todeal with the effect of paragraph 2 in the event of a changeof frontiers. In such a case, there were two possibilities: ifthe members of the federal State did not have capacity toconclude treaties, as was the case under the constitutions ofmany such States, there would be no objection to applyingthe terms of paragraph 2 as drafted, for even if the frontierswere changed subsequently, the former frontiers would bemaintained for the purposes of the treaty. On the otherhand, if the members of the federal State did retain somecapacity to conclude treaties, as was the case under certainother constitutions, paragraph 2 would give rise to a dualsituation in the case of treaties concluded prior to thecreation of a federal state, the internal frontiers would befrozen at the time of the creation of that State, but in thecase of treaties concluded subsequent to its creation, theprinciple of mutability would apply. To avoid that situ-ation, his delegation therefore proposed that, where themembers of a federated State retained their capacity toconclude treaties, the principle of the mutability offrontiers should be re-established.

27. The representative of the United Arab Emirates, if hehad understood him aright, was not opposed to the spirit ofthe Swiss amendment but asked whether it would in factadd anything to the draft article. In his own view, theanswer was clearly in the affirmative. The opening clause

of paragraph 2 made it quite clear that the intention was todo away with the principle of mutability of frontiers withina federated State. If, however, that principle were accepted,then the draft article would have to be amended.


38th MEETINGTuesday, 1 August 1978, at 10.20a.m

Chairman: Mi. RIAD (Egypt)



COMMUNICATION CONCERNING ARTICLE 71

1. Mrs. VALDES PEREZ (Cuba) announced that herdelegation was withdrawing its amendment to article 7(A/CONF.80/C.l/L.10/Rev.2), which had been referred tothe Informal Consultations Group for consideration.

ARTICLE 30 Effects of a uniting of States in respect oftreaties in force at the date of the succession of States2

(continued)

2. Sir Ian SINCLAIR (United Kingdom), noting thatarticle 30 was based on the principle of ipso jure conti-nuity, said he agreed with the International Law Com-mission that that principle must be considered as the basicone to be applied in the case of a uniting of two alreadyindependent States. Article 30 did not deal with the case ofthe formation of a newly independent State, in which theapplication of the "clean slate" principle was justified bythe fact that, at least in some instances, a treaty might havebeen applied to a territory by the metropolitan Powerwithout the consent of the people of the territory inquestion. Although the logic of the principle of self-determination required that the "clean slate" rule should beapplied in the latter case, the same was not true in the caseof a uniting of two already independent States, in whichthe principle of ipso jure continuity seemed to apply-However, the principle of ipso jure continuity could not be

1 For the discussion of article 7 at the 1977 session, see OfficialRecords of the United Nations Conference on Succession of Statesin Respect of Treaties, vol. I, Summary records of the plenarymeetings and of the meetings of the Committee of the Whole(United Nations publication, Sales No. E.78.V.8), pp. 64-88,and 233.

For the amendments submitted, see 37th meeting, foot-note 2.

38th meeting - 1 August 1978 35

applied indiscriminately, for account had to be taken oftwo basic problems: first, what would be the territorialscope of a treaty which, at the date of the uniting ofState A and State B, applied to the territory of State A;and, secondly, what would happen, in the case of theuniting of State A and State B, if a treaty provision whichapplied to the territory of State A conflicted with anothertreaty provision which applied to the territory of State B.

3. According to article 30, paragraph 2, any treatycontinuing in force in the case of a uniting of States appliedonly in respect of the part of the territory of the successorState in respect of which the treaty had been in force at thedate of the succession of States, unless the successor Stateand the other States concerned otherwise agreed or,in the case of a general multilateral treaty, the successorState made a notification that the treaty applied inrespect of its entire territory. While acknowledging thatthat rule was based on State practice, he was not sure thatit could provide a solution in all the cases that were likelyto arise. For example, if State A, which had concluded acommercial treaty with State X, united with State B, wouldit, in practice, be possible to continue to apply that treatyonly to the territory of State A and to the persons whobelonged to that State? His opinion was that, in such acase, the treaty must apply to the entire territory of thesuccessor State. He was therefore in favour of the Japaneseamendment (A/CONF.80/C.1/L.49), which made the textof article 30 somewhat more flexible.

4. His delegation was grateful to the delegation of theFederal Republic of Germany for having raised the questionof the incompatibility of treaty obligations in the amend-ment it had proposed (A/CONF.80/C.l/L.45/Rev.l). Itagreed that an exception should be made to the principle ofipso jure continuity when the application of the rules of theconvention entailed incompatibility between treaty obli-gations, either for the successor State or for any otherState. Indeed, the problem could arise not only in thecontext of article 30, but also in that of article 29, as theresult of the emergence of a newly independent Stateformed from two or more territories.

5. His delegation was therefore in a position to supportthe first part of the amendment proposed by the FederalRepublic of Germany, but it could not support the secondpart of that amendment, for the solution of allowing thesuccessor State to choose which of the two treaties was toapply was too radical. In his delegation's opinion, thatsolution, which allowed the successor State to settle thematter as it pleased, was not the best way of reconciling theinterests of the parties to the treaty. He therefore proposed*hat the first part of the amendment by the FederalRepublic of Germany should be put to a separate vote.

°- He endorsed subparagraph (a) of the new article 30 bisProposed by the United States of America (A/CONF.80/C.1/L.50), which required the successor State and the otherParties to the treaties in question to hold consultations andnegotiations in order to eliminate any conflicts that mightarise. However, he had some doubts about the rule set forthm subparagraph (b), which would provide ammunition to

those parties to the treaty which had an interest in thetreaty's ceasing to be in force.

7. In general, his delegation considered that the solutionto the problem of conflicting treaty regimes was to befound in the first part of the proposal by the FederalRepublic of Germany and in a Conference resolutioninviting the successor State and the other parties to thetreaty to make every effort to resolve any incompatiblityresulting from the application of the rules laid down in theConvention through consultation and negotiation. It wouldtherefore be prepared to support the proposed Conferenceresolution which the United States had submitted indocument A/CONF.80/C.1/L.51. It supported the principleof the amendment by Switzerland (A/CONF.80/C.1/L.44),but thought that it was for the Drafting Committee todecide whether that admendment should be incorporated inarticle 30 or in article 14.

8. Mr. MUSEUX (France) said he considered article 30 tobe a key provision and one of the most important in theConvention. If, despite its importance, that article had beenthe subject of few comments by Governments, that wasprobably because it was a well-drafted and balanced article,the basis for which was not questioned by the internationalcommunity. In his opinion, the principle of continuityenunciated in that article was fully justified, not onlybecause the article related to already independent States—and not to former colonial territories—but also becausethere was a fundamental difference between cases ofscission and cases of union. In all cases of scission, therewas conflict between the component parts of a legal entity;that was why the International Law Commission had optedfor the "clean slate" principle. Article 30, on the otherhand, referred to the case of entities which united becausethey were compatible: it was therefore logical for thesystem of obligations and rights which had bound them tocontinue in force.

9. The International Law Commission had placed certainlimits on the principle of continuity. It had, in particular,limited the territorial scope of the treaty, for, underarticle 30, paragraph 2, the treaty continued to have thesame area of application as before the uniting of States. Heagreed with that rule, even though it might give rise to somepractical difficulties, for he considered that, in the situationreferred to in article 30, such difficulties would be inevi-table. In his opinion, the adoption of a more radicalsolution, such as the one of extending the territorial scopeof the treaty, might lead to even more serious difficulties.He was therefore in favour of maintaining the sameterritorial scope as before the uniting of States.

10. The Japanese amendment had the effect, in certaincases, of extending the territorial scope of the treaty. It wasobvious that, in the case of an extradition treaty, to whichthe representative of Japan had referred at the precedingmeeting, the application of such a treaty to only part of theterritory of the successor State might give rise to practicaldifficulties. He did not, however, think that the Japaneseamendment would enable those difficulties to be overcome,for, if each of the predecessor States had concluded anextradition treaty with a third State, it would not be clear


which of those treaties would apply to the entire territoryof the successor State. He considered that the InternationalLaw Commission's text, paragraph 2 (a) of which providedthat the successor State could make a notification that thetreaty would apply in respect of its entire territory, wasflexible enough and that it was not necessary to provide fora binding obligation, as was done in the Japanese amend-ment. In his opinion, it would, moreover, be difficult todetermine the cases in which the territorial scope of thetreaty was to be extended in that way.

11. He was grateful to the Federal Republic of Germanyfor having drawn the Committee's attention to the particu-lar difficulties which might result from the incompatibilityof treaty provisions. He was, however, of the opinion thatsuch incompatibility was limited, for every treaty had itsown territorial scope and there was not usually anyoverlapping between the scopes of various treaties. Therecould, of course, be borderline cases. It therefore had tobe decided how far it was possible to go in resolving theproblem of the incompatibility of treaty provisions. Therepresentative of the United Kingdom thought that theCommittee should not go too far, that it was sufficient toadopt the first part of the subparagraph (c) proposed by theFederal Republic of Germany and to seek a solutionthrough negotiation, as provided for in subparagraph (a) ofthe article 30 bis proposed by the United States.

12. In his opinion, the amendment proposed by Switzer-land was not, strictly speaking, an amendment of substance,but, rather, a rule of interpretation concerning the scope ofparagraph 2 of the text proposed by the international LawCommission. Like the representative of the United ArabEmirates,3 he thought that the problem which thatamendment was designed to solve was a matter to beconsidered by the Drafting Committee. He did not thinkthat the International Law Commission had wanted to ruleout the solution proposed by the Swiss amendment or todisregard the problem raised by variations in the frontiersof the territorial entities composing the successor State. Inhis opinion, the problem was one of a drafting nature, forarticle 30, paragraph 2, appeared to come down on the sideof a crystallization of territorial limits. He was therefore infavour of the principle of the Swiss amendment, it beingunderstood that the Drafting Committee would decide onthe final wording of that amendment and its position in theConvention. In his opinion, the best place for thatamendment might be in article 30, paragraph 2, since itrelated to the interpretation of that paragraph.

13. Mr. MAKAREVICH (Ukrainian Soviet Socialist Re-public) said that he was satisfied with the contents ofarticle 30 as submitted by the International Law Com-mission, which in his view required only a few minordrafting changes. He considered that the principle whichshould apply in the case of a uniting of States was that ofipso jure continuity, which was consistent with the prin-ciple pacta sunt servanda and ensured the stability of treatyrelations.

14. He shared the views of the representative of theUnited Arab Emirates4 concerning the amendment submit-ted by the Federal Republic of Germany. That amendmentconflicted with certain principles of international law,particulary the principle pacta sunt servanda, and jeopard-ized the rights of other States parties to the treaty. Underthe amendment, the successor State could settle unilaterallythe problem posed by the incompatibility of the treaties towhich it had succeeded, without basing itself on theobjective criteria set forth in article 30, paragraphs 1 (b)and 3, namely, the object and purpose of the treaty. Theextremely complicated problem of the separability ornon-separability of treaty provisions had not been solved bythe Vienna Convention on the Law of Treaties,5 and noattempt should be made to solve it in the presentconvention. He could not, therefore, support the amend-ment of the Federal Republic of Germany.

15. The case referred to in the Swiss amendment was notassimilable to the case of the uniting of States referred to inarticle 30, in which the predecessor States ceased to existin order to form a new State. In his opinion, it was theprinciple of de jure continuity and not the moving frontiersprinciple that should apply in the case referred to inarticle 30, whereas in the case referred to in the Swissamendment article 14 was applicable. The amendmenttherefore seemed to him to be superfluous.

16. The Japanese amendment was at variance with theprovisions of article 30 and might have undesirable conse-quences. According to that amendment, if a small Statewhich had concluded a customs tariff agreement for theimport of goods united with a much larger State, which hadnot concluded an agreement of that kind, the customspreferences provided for by the agreement in questionwould be extended to the entire territory of the new State,in other words, to a much larger territory than that towhich they had applied originally. Thus, the Japaneseamendment might place the successor State in a verydifficult position. He could not, therefore, support it. If ageneral multilateral treaty was to be applicable to the entireterritory of the successor State, the successor State mustmake a notification, as stipulated in article 30, paragraph2 (a).

17. His delegation reserved the right to state its positionon the article 30 bis proposed by the United States, at alater stage.

18. Mr. SCOTLAND (Guyana) said that article 30 dealtwith two aspects of the question of treaty succession. Inparagraph 1 it considered the existence or subsistence ofthe treaty relationship when two or more States united toform a new State. In paragraph 2 it considered theterritorial scope or object of the treaty. He stressed thatparagraph 1 of article 30 contained a presumption in favourof the continuity of treaty relations; since at least one of the

See 37th meeting, paia. 19.

* Ibid., para. 17.5 See the text of the Convention in Official Records of the

United Nations Conference on the Law of Treaties, Documents ofthe Conference (United Nations publication, Sales No. E.70.V.5)ipp. 287 et seq.


entities forming part of the new State was a party to thetreaty in question, it should not be deprived of its status asa party only because it had united with another State toform a new State. In addition, the principle pacta suntservanda ensured that the treaty obligation continued to beenforceable in respect of the territory of the former Statewhich had been a party to the treaty. He pointed out, withregard to the wording of the article, that the effect ofsubparagraph 1 (a), when read with the "chapeau" of theparagraph, served to maintain treaty relations for thesuccessor State even if that State did not intend to maintainthem. It could, of course, be argued that recourse could behad to the procedure for terminating such relationsestablished in the treaty, but such a procedure was openonly to the parties to the treaty in question, and thecontention of the successor State would be that, as a newentity, its only obligations were those it expressly assumedwhen it came into being, in accordance with the "cleanslate" principle. In the opinion of his delegation, however,such an argument would seriously impair the stability andsecurity of treaty relations. In fact, article 30 was not anappropriate instance for the application of the "clean slate"principle. All States uniting to form a new entity wouldhave existing treaty obligations at the moment of then-union, unlike newly independent States. For those States,the fact of entering into treaty relationships as sovereignStates, followed by the fact of participating voluntarily in aunion of States, constituted an affirmation of their sover-eignty and an unmistakable expression of their right toself-determination. That was why his delegation consideredthat the presumption of continuity set forth in paragraph 1was justified and that an act of the new State was necessaryto terminate treaty relations contracted previously by anentity now forming part of its territory.

19. In paragraph 2, which related to the territorial scopeof the treaty relations, the presumption of continuity waslimited to the part of the territory of the successor State towhich the treaty obligation in question had applied. If thetwo States or all the States forming the new entity hadbeen parties to the same treaty, each of them would enterthe union with the obligations it had previously assumedwith respect to its territory. The presumption in para-graph 2 was properly made since it was later on providedthat decisions to the contrary could be reached byagreement.

20. It appeared to his delegation that it could furtherexamine the article from the point of view of the effectivedate of entry into force of the treaty for the successorState. If, as was established in the "chapeau" of para-graph 2, the treaty obligations rested upon only a part ofthe territory of the new entity, those treaty obligationsWould apply only in respect of the part of the territory ofthe successor State in respect of which the treaty had beenw force but fell to be discharged by the successor State inits capacity as sovereign. For the successor State, therefore,the date of entry into force of the treaty would be the date°n which the part of the new territory to which theobligation had applied assumed that obligation as anindependent entity. When the successor State and the otherstates were parties to a multilateral treaty under which the

consent of all parties was required for another State tobecome party to that treaty, or when the successor Stateand the other State party to a bilateral treaty reachedagreement to the contrary, the effective date of entry intoforce, with respect to the successor State, could be fixed byagreement. When as in paragraph 2 (a) the successor Statehad to make a notification, the date of notification wouldappear to be the effective date.

21. It was not clear from a reading of the "chapeau" ofparagraph 2 and subparagraph (a) of that paragraphwhether the continuity of the obligation with respect topart of the territory of the successor State was maintainedin the face of a notification as envisaged in subparagraph2 (a) or was overridden by it—in the sense that thenotification represented the only new obligation to beassumed by the new State in respect to the treaty—orwhether the notification was regarded as being only anotherobligation assumed by the new sovereign State in additionto the obligations which were contracted before the date ofsuccession by an independent State that had subsequentlybecome a part of the new State, which obligation the newState had to fulfil.

22. Those questions notwithstanding, the fact remainedthat the "chapeau" of paragraph 1 provided for thecontinuity of obligations existing at the date of succession,except in certain circumstances. The problem dealt with inarticle 30 could assume various forms, and the text putforward by the International Law Commission was perhapsthe best that could be proposed at the moment.

23. The amendment proposed by Switzerland related to aparticular problem but did not appear to his delegation tobe required to meet a genuine juridical need. Nevertheless,his delegation was not opposed to it; the Drafting Com-mittee might be able to find some other way of settling thematter in the draft.

24. The amendment proposed by the Federal Republic ofGermany was likely to create more difficulties than itwould resolve. The effect of the amendment was to leavethe successor State free, not only to decide whether itwould continue to be bound by a treaty but also todetermine, in the event of incompatibility between treatyobligations, which obligations it would accept. The latteroption would, of course, leave all the other parties to thetreaties in question in a state of uncertainty until thesuccessor State had reached a decision. In the opinion of hisdelegation, the question of incompatibility was covered byparagraph 1 (b)\ it should be settled by the successor Stateand the other States parties to the treaties in question.

25. As to the second part of that amendment, it seemedthat the successor State, as a sovereign State, could resortto reservations to indicate the provisions of the particulartreaty by which it did not wish to be bound. His delegationcould not, therefore, support the amendment of the FederalRepublic of Germany.

26. The Japanese amendment seemed to reverse thescheme of things. According to paragraph 2 of article 30,the treaty obligation applied only to the part of theterritory of the successor State in respect of which the


treaty had been in force at the date of the succession ofStates, unless the States concerned otherwise agreed or thesuccessor State made a notification. Under the Japaneseamendment, the obligation would in certain circumstancesbe applicable to the entire territory of the successor State.It seemed that the particular circumstances referred to inthat amendment should lead the other States parties to atreaty to request the successor State to apply the treaty toits entire territory or to repudiate the treaty altogether. Thepossibility of choice, which was explicitly provided for bythe International Law Commission, should not be limited inany way. Subparagraphs (a), (b) and (c) of paragraph 2allowed the successor State to determine the course itintended to follow in the light of the circumstances.

27. In introducing his delegation's amendment5, therepresentative of Japan had said that article 30 might beprejudicial to extradition treaties and to the Non-Prolifer-ation Treaty. It was not conceivable, however, that a Statewould conclude a treaty in good faith while at the sametime admitting exceptions or limitations, whether territorialor other, which would defeat, or conflict with, the veryobject and purpose of that treaty, or that the other Statesparties to the treaty would suffer in silence the continuedexistence of such a treaty relationship. For that reason, hisdelegation could not support the Japanese amendment.

28. The new article 30 bis proposed by the United Statesseemed to satisfy some of the concerns expressed at the37th meeting, but he could not take a position on thatamendment until he had had time to study it.

29. Mr. PEREZ CHIRIBOGA (Venezuela) stressed theimportance that article 30 would have in the future and thedifficulties involved in drafting such a provision, which hadto cover a great variety of cases. It was in an attempt to fillcertain gaps that several delegations had submitted amend-ments to the article,

30. His delegation could support the amendment of theFederal Republic of Germany. In view, however, of thecomments made in the course of the discussion, it would bepreferable for the first part of that amendment to be votedupon separately, as proposed by the representative of theUnited Kingdom.

31. The Japanese amendment introduced a very inter-esting element, and his delegation could support thatamendment as well. Many problems might arise if provisionwas not made for the case covered by that amendment. Theapplication of a treaty to only part of the territory of thesuccessor State could, in many cases, be highly prejudicialto one or more parties to the treaty, which was contrary tothe purpose of uniting. So far as form was concerned, theJapanese amendment might perhaps be reworded to takeaccount of the comments made during the debate.

32. The Swiss amendment covered the particular case ofa federal State. The International Law Commission hadreferred to that case in its commentary when it had notedthat the degree of separate identity retained by the originalStates after their uniting, within the constitution of the

successor State, was irrelevant for the operation of theprovisions of article 30. He failed to see how the Swissamendment would apply. If two States united to form anew State, thus occasioning a succession of States, and ifthe territory of one of the parts of the successor State wassubsequently modified, such modification was purely in-ternal in character and was totally unrelated to article 30.The case referred to by the Swiss amendment was analtogether different one, which was perhaps covered byarticle 14. It seemed, however, that there was no need toprovide for it in the convention. If the Committee werenevertheless to consider that the amendment should beincorporated in the convention, it ought perhaps to beintroduced elsewhere than in article 30.

33. As to the wording of the Swiss amendment, in theSpanish version, the word "cuando" should be replaced bythe words "en el caso" in order to show clearly that nosubsequent modification occurred.

34. Mr. MEISSNER (German Democratic Republic) ob-served that article 30 was the first article in part IV of thedraft, which related to the uniting and separation of States,in other words, to those cases of succession of States whichwould doubtless be the most common in the future. Hisdelegation endorsed article 30 as drafted by the Inter-national Law Commission. Since, under article 6, a unitingof States must be effected in conformity with "theprinciples of international law", it was natural that theprinciple of continuity should be the basic principle in thecase of article 30. Nevertheless, exceptions were providedfor in order to avoid legal consequences which wouldrender a uniting more difficult, if not impossible, or whichwould annul the obligation to succeed should that obli-gation be incompatible with the object and purpose of thetreaty or necessitate the consent of all the contractingparties.

35. Consequently, his delegation saw no reason to mod-ify the substance of article 30, as was proposed in theamendment of the Federal Republic of Germany. In thefinal analysis, that amendment considerably weakened theprinciple of continuity. The objections which had alreadybeen raised when article 29 had been considered were notconvincing, since that provision covered a qualitativelydifferent situation, arising from decolonization, and, in thatcase, the "clean slate" principle was fully justified. Ar-ticle 30, on the other hand, covered the case in whichpreviously existing sovereign States, having of their ownvolition previously established treaty relations, wished tounite. In that case, it was the principle of continuity thatshould apply. Since article 30 allowed sufficient latitude tocontracting States, it was difficult to understand why suchmajor changes were being proposed to that article.

36. His delegation shared the misgivings expressed by theHungarian delegation7 with regard to the Swiss amend-ment.

37. His delegation failed to see the justification for theJapanese amendment.

See 37th meeting, paia. 8.7 Ibid., paia. 25.


38. Mr. SETTECAMARA (Brazil) said that his del-egation fully supported article 30 as proposed by theInternational Law Commission. The amendments to thatarticle were designed to clarify it and to remove anyuncertainties to which its interpretation might give rise, butnone of them seemed really necessary.

39. With regard to the Swiss amendment, he observedthat, the article, as it stood, covered the case in which thecomponent parts of the successor State retained thecapacity to bind themselves by treaty. The commentary ofthe International Law Commission left no room for doubton that point. The possibility of applying article 14 and themoving frontiers rule would be assured in all cases.Furthermore, he doubted whether it was appropriate to usean expression as vague and imprecise as "mutatis mutandis"in a legislative text.

40. The amendment submitted by the Federal Republicof Germany related to incompatible successive treatyobligations, a problem dealt with very fully in article 30 ofthe Vienna Convention on the Law of Treaties. Paragraph 3of that article stated that the earlier treaty would applyonly to the extent that its provisions were compatible withthose of the later treaty. It might be worthwhile rec-ommending that the successor State should indicate thetreaty whose provisions were to continue to apply,although he, like the representative of the United Kingdom,found it difficult to see on what legal basis that could bedone.

41. He considered that subparagraphs (a), (b) and (c) ofarticle 30, paragraph 2, should adequately cover the caseenvisaged by the Japanese amendment.

42. At first sight, the new article 30 bis proposed by theUnited States of America seemed to relate to the settlementof disputes, and it should therefore be considered at a laterstage. He had no objection to the proposed Conferenceresolution submitted by the United States of America indocument A/CONF.80/C.1/L.51.

43. Mr. CASTREN (Finland) said he considered the textfor article 30 proposed by the International Law Com-mission to be well-balanced; the present text was a markedimprovement on the text adopted in first reading by theCommission, and was more broadly acceptable. The Com-mission had made the necessary exceptions to the principle°f continuity.

44. The amendment of the Federal Republic of Germanyconcerned the application, in respect of the successor State,of treaties whose provisions were incompatible. In his view,the successor State should not be entitled to free itself ofobligations of that sort, as that amendment, which heconsidered unacceptable, envisaged.

"". The Japanese amendment did not take into accountthe rights of all the States involved. It tended to expand thePrinciple of continuity beyond reasonable limits.

The Swiss amendment would be acceptable as far assubstance was concerned, but its content was alreadycovered by article 14, which applied to States in general, of

ny kind. The International Law Commission had not

considered it necessary to define the term "State", and thatterm probably, therefore, applied also to the Statesmembers of a federal State which enjoyed a limitedcapacity to bind themselves by treaty. Nevertheless, hisdelegation would have no objection to referring the Swissamendment, which might possibly supplement article 14, tothe Drafting Committee.

47. Finally, his delegation was prepared to vote in favourof the proposed Conference resolution submitted by theUnited States of America in document A/CONF.80/C.1/L.51.

48. Mr. PASZKOWSKI (Poland) said he considered theprinciple of ipso jure continuity to be highly relevant tocases of uniting of States. In fact, it seemed to be the onlyacceptable principle, in the light of contemporary inter-national law and State practice. The International lawCommission had always sought to maintain stability intreaty relations; the "clean slate" doctrine was merely animportant exception to the application of that principle,made for the benefit of newly independent States. Thecharacteristics of successions of States occurring whennewly independent States came into being called for specialrules consistent with the principle of self-determination,since those States had not expressed their will before theirindependence. It was an entirely different matter whenindependent States united, bringing with them all the treatycommitments to which they had freely consented. As theInternational Law Commission had concluded in paragraph27 of its commentary on articles 30-32, they ought not tobe able at will to terminate those treaties by uniting in asingle State (A/CONF.80/4, p. 98).

49. His delegation believed that the present wording ofarticle 30 reconciled the dynamic development of inter-national life and the stability indispensable to any legalorder. Article 30 was flexible enough to enable anyproblems which a uniting of States might pose to beresolved. His delegation did not, therefore, find the text ofarticle 30 to be in need of improvement. Some of theamendments proposed might hold out dangers. A uniting ofStates should not serve as a pretext for terminating treaties,and his delegation could not agree to an amendment whichwould give the successor State that power. The discussionon article 30 had confirmed his delegation in its belief:article 30 as drafted took into account all the points whichhad been raised.

50. Mr. TORNARITIS (Cyprus) said he fully subscribedto the United Kingdom representative's views on draftarticle 30. His delegation found the International LawCommission's text acceptable and considered that careshould be taken not to alter its balance. He shared theviews of the representative of the Ukrainian SSR regardingthe Japanese amendment, and those of the representative ofFrance on the Swiss amendment. The amendment of theFederal Republic of Germany, which sought to resolve theproblem of possible incompatibility between several treatyobligations, did not propose an acceptable solution, becauseit ran counter to certain principles of international law andprinciples which had served as a basis for formulating the

40 Summary records - Committee of the Whole

draft article. However, the Drafting Committee mightconsider inserting a sentence in the draft article, specifyingthat, in the event of a conflict between treaty obligations,the Vienna Convention on the Law of Treaties shouldapply. Finally, his delegation reserved its position on thearticle 30 bis proposed by the United States, which it hadnot yet had time to study.

51. Mr. RYBAKOV (Union of Soviet Socialist Republics)said that his delegation supported the International lawCommission's text, the provisions of which clearly reflectedthe principle of succession. In preparing the draft Conven-tion, the Commission had taken as its starting-point theidea that the "clean slate" principle would be applicableonly to cases of succession of States occurring as a result ofdecolonization. A uniting of States bore no relation to theexercise of the right to self-determination.

52. As analysed by the members of the Committee, theamendment of the Federal Republic of Germany modifiedthe substance of the International Law Commission's draft.It ran counter to the rule of pacta stint servanda, it wasprejudicial to the stability of international relations and itmight serve to undermine the "clean slate" principle. As therepresentative of the United Arab Emirates8 had noted,that amendment would affect the rights of the other Statesparties to treaties. For that reason, the Soviet delegationshared the misgivings expressed by the representatives ofGuyana and France. However, it did not agree with theview of the United Kingdom representative that the firstpart of the amendment would be acceptable because, inpoint of fact, both parts of the amendment would have thesame practical and juridical consequences. The argumentsadduced in support of the amendment carried littleconviction, since the Vienna Convention on the Law ofTreaties met the concerns of the proposal's sponsor.Furthermore, should the Committee wish to deal with theproblem of conflicting treaty obligations, its task would becomplicated considerably. It stood to reason that the onlyway for the States concerned to resolve a conflict of treatyobligations was by mutual consultation. His delegation, likemany others, therefore found the amendment unaccept-able, for it failed to take account of the right toself-determination and affected the vital interests of thirdStates.

53. His delegation also shared the misgivings expressedconcerning the usefulness of the other amendments. Inparticular, it had the same problems as the Hungariandelegation with respect to the Swiss amendment. It had nothad time thoroughly to study the article 30 bis proposedby the United States, but, at first sight, it seemed contraryto the ideas set forth in the original text. However, hisdelegation was ready to discuss the proposal contained indocument A/CONF.80/C.1/L.51 at a later stage.

54. In conclusion, he welcomed the trend which hademerged in favour of retaining the text proposed by theInternational Law Commission, which met the majorconcerns of the members of the Committee.

55. Mr. DIENG (Senegal) said he believed that the draftarticle in its present wording was sufficiently balanced tocommand the support of the members of the Committee.The International Law Commission had drafted the text inthe light of the need to preserve the stability of inter-national relations, the only limitations being the wishes ofthe States concerned, the compatibility of the treaties inforce before the uniting of States with the new situation,the effects of the change on the application of the treatiesand the territorial scope of the treaties. For that reason, hisdelegation would be able to agree to an amendment only ifit filled a gap or provided a useful clarification.

56. The amendment proposed by the Federal Republic ofGermany dealt with a case on which there was no point indwelling, since it was provided for by the Vienna Conven-tion on the Law of Treaties. While acknowledging thepossibility of a conflict between treaty obligations, hisdelegation was of the opinion that it would be less seriousto have to solve such a problem than systematically to calltreaties in question on the grounds of incompatibility withother obligations. Since, moreover, that amendment wouldentitle the successor State to choose which treaties wouldremain in force and which would not, his delegation foundit unacceptable.

57. His delegation had no objection to the substance ofthe Swiss amendment. It did, however, doubt whether thatamendment should be included as paragraph 4 of the draftarticle. Since the amendment added little to the draftarticle, it might be referred to the Drafting Committee.Lastly, his delegation considered that the Japanese amend-ment, by reversing the normal order, might be contrary tothe spirit of the draft article and therefore found itunacceptable. It reserved the right to comment at a laterstage on the article 30 bis proposed by the United States,which it had not yet received in French.

58. Mr. NATHAN (Israel) said that, whereas the "cleanslate" principle was the basis for the provisions of part IIIof the draft convention, draft article 30 rested on theprinciple of the continuity of treaty relations in the eventof a uniting of States. The distinction drawn between thecase of newly independent States and other States derivedfrom the fact that the former had had treaty obligationsimposed on them, whereas the constituent parts of aunified State had entered into such obligations of their ownfree will. The amendments submitted by the delegation ofthe Federal Republic of Germany and the delegation ofJapan concerned situations which were mainly likely tooccur in cases of uniting of States.

59. After weighing up the arguments adduced in supportof the amendment of the Federal Republic of Germany, he

doubted whether that amendment solved the difficultproblem of the incompatibility of treaty regimes, a ques-tion which was not in fact dealt with directly in the draltarticle. It was very likely that, if the successor State were tomake a choice between the treaties which would remain inforce in respect of its territory, it would be guided bysubjective criteria and would opt for those treaties which

ulIbid., paia. 17.

were most likely to satisfy its interest. That choicenecessarily prejudice the interests of the third States

ul


which treaty relations would be severed. For that reason,before it was able to take a unilateral decision on anytreaty, the successor State should be required to negotiatewith the third States in order to reach a satisfactorysolution. If the negotiations failed, the successor Statewould have two possibilities: either to terminate all theconflicting treaty obligations, or to choose from amongthose obligations the ones which it wished to maintain inforce. His delegation preferred the latter solution, despitethe various disadvantages which it entailed. The threeinterested parties, namely, the successor State and the twogroups of third States between which a conflict existed inregard to treaty relations, would suffer from a severance oftreaty relations; thus, that solution, although the mostlogical in the strictest sense, would serve no useful purpose.On the other hand, if the successor State was entitled tomake a choice between the treaties, the only partiesaffected would be the group of States in respect of whichthe treaties would cease to apply. However, in the event offailure in the negotiations with the two groups of States,the successor State should not be empowered to exercise itsright of selection unconditionally. It should be possible towork out objective criteria on which the successor Statewould base itself in exercising that right. Lastly he observedthat article 44 of the Vienna Convention on the Law ofTreaties might also, mutatis mutandis, apply in certaincase?

60. Turning to the Japanese amendment, he said it couldindeed happen that, at the time of a succession of States, atreaty was applicable to only part of the territoryconcerned; in addition to the examples given at thepreceding meeting, he would cite that of double taxationagreements. The International Law Commission's textprovided that, in such a case, the treaty would cease toapply, subject to the right of the successor State to applythe treaty to its entire territory. The Japanese amendmentseemed to contribute more to the progressive developmentof international law than to its codification, since theamendment was not based on State practice. However, theautomatic extension of treaty obligations to the entireterritory of the successor State could give rise to consider-able difficulties and in some cases affect the interests ofthird States, which were entitled to raise objections.Consequently, he wondered whether, there again, it wouldnot be advisable to provide for negotiations such as thoseenvisaged in the case of a conflict between treaty regimes.

61- Mr. DUCULESCU (Romania) said it was only after alengthy examination of State practice and the writings ofexperts in international law that the International LawCommission had decided to adopt the principle of thecontinuity of treaty relations. For that reason, his del-at ion supported the text proposed by the Commission.

nJle appreciating the concerns of the sponsors of theamendments, he considered that the draft article itself,°tiier draft articles and the Vienna Convention on the Law° Treaties provided a solution to the problems addressed

y those amendments. The issues dealt with by theamendment of the Federal Republic of Germany should beSolved in the light of the need to ensure the maintenance

of international relations and to solve outstanding problemsthrough negotiations. His delegation supported the ideaenunciated by the United States delegation in its proposedresolution (A/CONF.80/C.1/L.51), but reserved the right tospeak at a later stage on the proposed article 30 bis.

Statement by the chairman of the delegationof the United Nations Council for Namibia

62. Mr. JAIPAL (United Nations Council for Namibia)said that his delegation was pleased to be participating inthe resumed session of the Conference at a time when theSecurity Council had just adopted measures to ensureNamibia's rapid accession to independence, by means offree elections held under the supervision and control of theUnited Nations, and thus to put an end to the illegaloccupation of the international territory by South Africa.As the lawful Administering Authority of Namibia, theCouncil would continue to represent and protect theinterests of the Namibian people until they were able freelyto exercise their inalienable right to self-determination andindependence, and to the territorial integrity of a unitedNamibia, including Walvis Bay, which had been forciblyseized by South Africa.

63. The Council's delegation would continue to play anactive part in the deliberations of the Conference and in theadoption of the remaining articles. In that connexion, itcongratulated the International Law Commission on itswork, which represented a further step in the progressivedevelopment and codification of international law.

64. His delegation endorsed the essential ideas whichwere embodied in the draft articles and were in generalbased on the Vienna Convention on the Law of Treaties,the general principles of international law, State practiceand the Charter of the United Nations. It noted withsatisfaction that the International Law Commission hadadopted the "clean slate" principle in accordance withwhich the newly independent State had the right to decidewhether or not it wished to remain a party to a treatyconcluded by the predecessor State. That principle safe-guarded the legitimate interests of newly independentStates and enabled them to reject colonial heritages whichmight prejudice their economy and the well-being of theirinhabitants. It thus helped to safeguard the interests andnatural resources of Namibia. In that connexion, he drewattention to General Assembly resolution 2145 (XXI), inwhich the Assembly had terminated South Africa's Man-date over Namibia and had decided that the Territorywould be the direct responsibility of the United Nationsuntil its independence.

65. The Council regretted that exceptions had been madeto the "clean slate" principle which might create misunder-standings in countries such as Namibia, that had beensubjected to dismemberment and illegal military occu-pation. In resolution 385 (1976), the Security Council hadaffirmed the right of Namibia to territorial integrity andnational unity. In resolution 32/9 D the General Assemblyhad declared that Walvis Bay was an integral part ofNamibia. In resolution 432 (1978), the Security Council

42 Summaiy records - Committee of the Whole

had stated that Walvis Bay should be returned to Namibia.There was thus no doubt than when Namibia attainedindependence, Walvis Bay should also be decolonized.

66. For that reason his delegation had requested, at thefirst session of the Conference, that the relevant draftarticles should be amended so as to take account ofhistorical reality and, in particular, the fact that SouthAfrica was not the predecessor State in the case of Namibia.It had also endeavoured to amend draft article 2 in order totake account of the fact that the United Nations wasresponsible for Namibia's international relations.9

67. The Council considered that, in the case of Namibia,failure to apply the "clean slate" principle would impose anintolerable burden on the Territory once it had becomeindependent.

68. The Council could not refrain from referring to thequestion of exceptions to that principle, because it mightbe inferred from its silence on that point that it approvedof the attempts made by South Africa to dismemberNamibia, in defiance to the inalienable right of theNamibian people to self-determination and to the preser-vation of the territorial integrity of their country, and ofGeneral Assembly resolution 1514 (XV) on the granting ofindependence to colonial countries and peoples.

69. The Conference should not legalize arbitrary acqui-sitions of territory by a racist, colonialist State whoseclaims were based on leonine treaties. The dismembermentof Namibia and the detachment of Walvis Bay wereattributable solely to economic and strategic considerationsand to a deliberate desire to keep Namibia in a situation ofeconomic subordination in relation to South Africa andother colonialist countries whose objective was to derivebenefit from the natural resources of Namibia. Namibia'sclaims to Walvis Bay could not be challenged, given thehistorical, geographical, cultural and ethnic context. Beforethe arrival of the first European settlers in South Africa,Walvis Bay had formed an integral part of Namibia and hadbeen inhabited by the indigenous race, the Namas. In 1870,the captain of a British warship had taken possession of theBay in the name of the Queen of England. In 1884, the restof Namibia, then known as South-West Africa, had beenoccupied by the Germans. But unlike the other adjoiningregions, Walvis Bay had not been incorporated into theCape Colony. In 1915, the South African forces hadoccupied Namibia, and at the time of the establishment ofthe Union of South Africa, Walvis Bay too had beenoccupied by the South Africans. Subsequently South Africahad extended to Walvis Bay the legislation applicable to thewhole of the territory of South-West Africa. In 1922, it hadincorporated Walvis Bay into Namibia by adopting a seriesof laws under which Walvis Bay had finally been placedunder the territorial jurisdiction of Namibia.

70. Despite the measures adopted by the General As-sembly of the United Nations in 1966 and 1967, anddespite the advisory opinion of the International Court of

Justice confirming that South Africa's Mandate over Nami-bia1 ° had come to an end, South Africa had continued todefy the United Nations by refusing to withdraw fromNamibia. Recently, South Africa had taken legislative andadministrative measures with a view to detaching WalvisBay from Namibia. It was those acts of defiance of theUnited Nations which obliged the Council to insist that thefuture convention should take account of the status ofinternational territory under the responsibility of theUnited Nations with which Namibia was endowed. For thatreason, at the first session of the Conference, the Councilhad proposed that an amendment should be added to theproposed preamble for the convention (A/CONF.80/DC. 13), with a view to ensuring that South Africa wouldnot be the predecessor State in the case of Namibia.

The meeting rose at 12,5.5 p.m.

Legal Consequences for States of the Continued Presence ofSouth Africa in Namibia (South West Africa) notwithstandingSecurity Council Resolution 276 (1970), Advisory Opinion, I.C.J.Reports 1971, p. 16.

39th MEETINGTuesday, 1 August 1978, at 3.25 p.m.




ARTICLE 30 (Effects of a uniting of States in respect oftreaties in force at the date of the succession of States)(concluded) and

PROPOSED NEW ARTICLE 30 bis (Conflicting treatyregimes)2

1. Mr. KOROMA (Sierra Leone) said that the existingdraft of article 30 laid undue stress on the principle ofpacta sunt servanda at the expense of the principle ofconsent. That was a matter of the utmost importance toAfrican States, many of which realized that harsh present-day realities compelled them to unite.

2. He shared the view of the representative of theFederal Republic of Germany that the existing draft of the

Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties... op. cit., 5th meeting,paia. 55.

1 For the amendments submitted, see 37th meeting, foot-note 2.2 Proposed by the United States of America in document

A/CONF.80/C.1/L.50. Statements were also made on the proposedarticle 30 bis, submitted at the 38th meeting, during the discussionof article 30.


article would not be conducive to the observance of treatiesby successor States3 and indeed, it appeared from theInternational Law Commission's commentary to the articlethat it did not conform with the current practice of newlyindependent States when they united. He therefore sup-ported the United States proposed article 30 bis, (A/CONF.80/C.1/L.50), advocating negotiation in the event ofconflicting treaty regimes, although he agreed with theUnited Kingdom representative that paragraph (b) of thatproposal required further consideration.4

3. The Japanese amendment (A/CONF.80/C.1/L.49)might be acceptable if extradition were the only problem tobe considered, but many aspects of trade relations were alsoinvolved and the Japanese formulation would merely serveto increase the rigidity of the existing text.

4. He appreciated the force of the argument behind theSwiss amendment (A/CONF.80/C.1/L.44) but once againhe felt that recourse should be had to negotiation so thatthe circumstances of a particular merger of States might betaken into account.

5. Mr. BRECKENRIDGE (Sri Lanka) requested that thestatement made by the representative of the Council ofNamibia at the Committee's thirty-eighth meeting shouldbe reproduced in extenso in the summary record.

6. It was common ground that in article 30 of its draftarticles the International Law Commission had givenprecedence to continuity over the "clean slate" principle.He had been impressed by the remarks by the Indianrepresentative on the subject:5 the historical reasons givenin the commentary for dismissing the claims of self-determination were inadequate. He also agreed with therepresentative of Sierra Leone as to the need to have dueregard to what the normal practice of successor States waslikely to be. He could accept the general thrust of theoriginal draft if it took that aspect, as well as the need fornegotiation, into account.

7. With regard to the various amendments, the Japaneseproposal effectively reversed the intention of the Inter-national Law Commission and the practical problem ofextradition did not justify such a substantive amendment.The proposal of the Federal Republic of Germany ad-dressed itself to a pertinent issue, but the problem ofconflicting treaty provisions was not to oe solved as simplyas the amendment suggested. Moreover, the text was notimproved by the omission of the last part of the sentenceafter the word "obligation", as had been suggested by theUnited Kingdom representative:6 it was rendered still morecontentious.

8- In its proposed article 30 bis, the United States hadendeavoured to come to grips with the issue raised by thefederal Republic of Germany, while taking into accountconsiderations like those voiced by the representative of



See 37th meeting, paras. 9-11.


Sierra Leone. However, the text of the proposed new articleopened the door to discussions on matters which wereirrelevant for the purposes of the present convention. Theother United States proposal, the adoption of a mereConference resolution, (A/CONF.80/C.1/L.51) was beggingthe question since, however much the original text ofarticle 30 stressed continuity, the need for negotiation wasobvious from State practice. Furthermore, it was not clearwhy the draft Conference resolution referred to article 29as well as to article 30. It should be confined to the latter.If there was indeed a link between articles 20 and 30, thatadded additional force to the argument put forward by therepresentative of Sierra Leone.

9. With regard to the Swiss amendment, the inter-pretation which that delegation wished to place on article30 should be examined by the Drafting Committee in orderto clarify the situation: it should not take the form of asubstantive amendment to the article.

10. Mr. ROVINE (United States of America) said that hisdelegation had submitted its proposals because it supportedthe principle of continuity of treaties while recognizing thevalidity of the problem raised by the representative of theFederal Republic of Germany about conflicting treatyregimes.7 On reflection, however, it seemed difficult to finda better solution than acceptance of the original text ofarticle 30, in conjunction with a resolution outside theframework of the Convention. His delegation thereforewithdrew its proposal for a new article 30 bis butmaintained its proposal for a Conference resolution onincompatible treaty obligations.

11. The method of leaving the successor State to make achoice of existing treaties failed to protect the rights ofthird parties and could lead to invidious distinctions. Itmight work under special circumstances, as, for example,when predecessor States A and B were both parties to amultilateral treaty on human rights but one of them hadentered a reservation on the settlement of disputes. In sucha case, the successor State could exercise a choice in thematter without affecting the position of other Statesparties. But such cases were too limited to support a generalrule. On the other hand, the solution of terminating treatieswith conflicting provisions was too harsh and also failed toprotect third parties. The approach adopted by his del-egation in their proposed article 30 bis, of termination orselection after negotiation, had the disadvantage that itmight constitute an incentive for negotiations to fail. Theamendment submitted by the Federal Republic of Germanywas modelled on the lines of paragraph 1 (b) of the originaltext. In both cases, the problem of conflict would beresolved by the treaty not continuing in force but thatwould again be a solution at the expense of third parties.The Japanese amendment, by carrying the continuityprinciple too far, was likely to be the source of additionalconflict. It also reversed the thrust of articles 31 and 32.Although his delegation's draft resolution had primarilybeen intended to solve the problem raised by the FederalRepublic of Germany, it could also be used to cover the

7 See 37th meeting, paras. 2-6.


Japanese amendment by extending the application to thewhole territory of a successor State of an existing treatyapplicable to only part of it. He hoped there would besufficient support for the draft Conference resolution tosend it to the Drafting Committee.

12. The Swiss amendment did not deal with a real issueof succession of States within the purview of article 30 andshould be dealt with outside the convention.

13. Mr. DOGAN (Turkey) said that the InternationalLaw Commission had endeavoured to accommodate in itstext of article 30 two principles which were not easy toreconcile: the dynamism of international relations, asexpressed in the will of States to unite, and the stability ofinternational legal relations which required continuity oftreaty obligations. The formulation adopted by the Com-mission did not meet completely the increasing desire ofnew States to unite; indeed, in one sense, it might be said todiscourage such unions by maintaining the validity oftreaties entered into by the predecessor States. Turkeycompletely supported the Commission in opting for stab-ility in international legal relations but the inescapable factremained that the union of two States would raise problemsof incompatible treaty regimes which the provisions ofarticle 30 would not solve and which would render thearticle unworkable. The stability of legal obligations andthe interests of third States would be adversely affected ifsuch States entertained doubts about the successor State'swillingness fully to discharge its obligations because thelatter took the view that its responsibilities under differenttreaties were incompatible. Insistence on the principle ofcontinuity would under those circumstances give rise todissatisfaction on the part both of third States and ofsuccessor States. The solutions proposed of paragraphs 2and 3 of article 30 did not adequately solve the difficulties.

14. The same was true of the various amendmentsproposed to article 30 and consequently, his delegation,while reserving its position on the suggested article 30 bis,hoped that the Drafting Committee would maintain theprinciple, in the event of failure to solve a case ofconflicting treaty regimes, on continuity for a limitedperiod of up to two years from the date of the successionof States.

15. Mr. FERREIRA (Chile) said that, in the opinion ofhis delegation, the article 30 proposed by the InternationalLaw Commission was comprehensive and well balanced,since it was adapted to meet the principle of continuity dejure of treaties while countenancing rules of exception toprovide remedies for the difficulties which might arise in itsimplementation.

16. With reference to the amendments submitted, he saidthat the case of incompatibility dealt with in the amend-ment of the Federal Republic of Germany was not acommon one, and inasmuch as paragraph 2 of that articlestated that any treaty continuing in force in conformitywith paragraph 1 should apply only in respect of the part ofthe territory of the successor State in respect of which thetreaty was in force at the date of succession, it wastherefore rather unlikely that such a situation would arise,

and the incorporation of a provision which ran counter tothe principles upheld by the article, particularly theprinciple pacta sunt servanda could not be justified. Hisdelegation therefore could not support the amendment ofthe Federal Republic of Germany.

17. As regards the Japanese amendment, his delegationconsidered it unnecessary since article 30, paragraph 2,subparagraph (c) proposed by the International Law Com-mission provided the solution for the cases raised, for thesuccessor State and the other State party could agree thatthe treaty should apply to the entire territory, failing whichresort could be had to the procedure for settlement or tothe rules of the Vienna Convention on the Law of Treatieson the termination of international treaties. His delegationcould not therefore support the Japanese amendment.

18. His delegation considered the Swiss amendmentadequate only as a means of clarifying the text of thearticle under consideration, and endorsed the commentsmade by other delegations to the effect that the text shouldbe referred to the Drafting Committee for use in improvingthe wording of the article.

19. Mr. ABOU-ALI (Egypt) said that the InternationalLaw Commission's text kept the necessary balance betweenthe continuity of legal obligations, and dynamism resultingin the uniting of two or more States. As the representativeof the United Arab Emirates8 had remarked, pacta suntservanda was the more important principle. Paragraph 1 (b)in fact met the concern which had been voiced by therepresentative of the Federal Republic of Germany aboutconflicting treaty provisions and, as other speakers hadalready said, the Japanese amendment would lead toconfusion. He therefore supported the original text ofarticle 30.

20. Although he appreciated the reasons for the Swissamendment, a general international convention should notinclude details applicable to a single State and the mattershould be referred to the Drafting Committee.

21. Mr. TREVIRANUS (Federal Republic of Germany)said that it had become clear from the discussion of theamendments that the original text of article 30 would notsuffice in itself. No satisfactory solution could be achievedwithout introducing the element of consent, thus makingallowance for the complexity and variety of problemswhich might arise when a new successor State, essentiallyheterogeneous in nature, sought, as it must, to achieveconsistency in its international relations as soon as possible.Indeed, in the case of a unitary State, such an approach wasa precondition of the merger. The question had also arisenin the case of article 29, as could be seen from the summaryrecord of the discussion at the 33rd meeting of theCommittee.9 In that case, the difficulty could be overcome

See 37th meeting, para. 16.9 See Official Records of the United Nations Conference on

Succession of States in Respect of Treaties, vol. I, Summary recordsof the plenary meetings and of the meetings of the Committee ofthe Whole (United Nations publication, Sales No. E.78.V-8),pp. 229 et seq.


by a wise exercise of the right of option with regard to theextension of the applicability of the treaty to the entireterritory of the successor State. Under those circumstances,the successor State would clearly seek to harmonize itstreaty relationships by judicious selection. But the ap-plication of article 30 entailed further difficulties, asappeared from paragraph 26 of the International LawCommission's commentary (A/CONF.80/4, pp. 104-105)and from the note quoted at the beginning of paragraph 19(ibid., pp. 102-103) addressed to the Secretary-General bythe new United Republic of Tanganyika and Zanzibar, tothe effect that it would be bound by the provisions ofinternational treaties and agreements in force between thepredecessor States and other States to the extent only thattheir implementation was consistent with the constitutionalregime established by the Articles of the Union. Thatstatement propounded an inescapable truth: a new Staterecognized by the international community could legit-imately assume that other States would respect the re-sultant situation. That did not imply any intention to evadethe treaty obligations entered into by the predecessorStates, but it was clear that the people of the new State hadthe same right to self-determination, regardless of whetheror not the predecessor States had been newly independent.

22. Many delegations had thought that the escape clausesin the original text of article 30 would suffice to meet thedifficulties. He wondered whether, in order to do so, theywould not need to be given a wider interpretation than wascustomary. However, in view of the fact that the last phraseof his delegation's amendment had not commanded sup-port, he preferred not to press the first part and wouldwithdraw the entire text. He expected that the idea itexpressed would be followed up along the lines suggestedby the United States.

23. Mr. NAKAGAWA (Japan) said he withdrew hisdelegation's amendment and would support the UnitedStates' proposed Conference resolution on incompatibletreaty obligations.

24. Mr. RITTER (Switzerland) said that it appeared fromthe discussion on his delegation's amendment that nospeaker opposed the idea of the mutability of frontiers in acomposite State and there had been no suggestion that suchan idea was not consonant with the intention underlyingthe International Law Commission's text of article 30.Some delegations had considered the Swiss amendmentredundant on the grounds that the issue was alreadycovered in the original text but others had considered thatthe current wording of paragraph 2 froze the situation atthe time of the creation of the successor State againstsubsequent changes. It appeared that it was largely a matterof legal technique and that a slight modification in theWording of paragraph 2 was all that was required. If thatview was generally acceptable, he had no objection to thematter being entrusted to the Drafting Committee to findan appropriate solution.

2 5 • Mr. KRISHNADASAN (Swaziland) said that his^legation was in favour of article 30 as it stood. It was alsoin favour of referring the Swiss amendment to the Drafting

Committee for the idea it contained to be incorporatedsomewhere in the Convention.

26. Mr. MAIGA (Mali) said it was clear from theCommission's commentary (A/CONF.80/4) that articles 30,31 and 32 were closely linked. It was also clear that themerging of one State with another was covered byarticle 30, whereas the transfer of a territory to an existingState was covered by the moving treaty-frontiers rule setout in article 14. Since the Swiss amendment was clearly inconflict with the International Law Commission's ap-proach, he wondered whether it could be retained. TheDrafting Committee could do little in the circumstances.Perhaps the representative of Switzerland could clarify hisapproach in the light of that comment and the position ininternational law.

27. Mr. RITTER (Switzerland) said that if he hadunderstood the representative of Mali correctly, he hadreferred to the fact that, if a number of States became one,only the newly emerging State had an internationalpersonality. While he agreed that that might be illogical,federalism was an empirical phenomenon and not alwayslogical. Member countries of federal States often retained acertain international competence, as was the case of hiscountry, and it was in fact that legal reality which hadinspired its proposal.

28. Mr. MAIGA (Mali) said that that explanation hadbeen included in the comments by Governments and Statesaccompanying the 1972 Draft as a result of which theInternational Commission's draft had been amended, re-sulting in the drafting of article 30. If the Swiss delegationinsisted that article 14 covered the case under consider-ation, then its view conflicted with the position ininternational law.

29. The CHAIRMAN suggested that in view of theopposition expressed by the delegation of Mali, a voteshould be taken on the position of the reference of theSwiss amendment to the Drafting Committee.

30. Mr. RYBAKOV (Union of Soviet Socialist Republics)said that in his opinion a vote was not necessary. Theamendment could be submitted to the Drafting Committeewithout a vote and the latter would then be free to take theamendment into account or not, as it wished: it was not,however, empowered to consider the substance of theamendment.

31. The CHAIRMAN said that the representative ofSwitzerland had agreed that his amendment should go tothe Drafting Committee as a drafting amendment. If therewas no objection, he would take it that the Committee ofthe Whole approved that arrangement.

32. Mr. PEREZ CHIRIBOGA (Venezuela) said his del-egation would like to know whether the Drafting Com-mittee was to be requested to seek a formula to incorporatethe Swiss amendment somewhere in the convention, orwhether it was to seek several formulae that would be


referred back to the Committee of the Whole, which wouldthen decide on the placing of the amendment in theconvention. While he did not object to the DraftingCommittee studying the amendment, he did not know whatits terms of reference were. He did feel, however, that thereference of the amendment to the Drafting Committeeimplied that the Committee of the Whole had agreed inprinciple that it should be incorporated somewhere in thetext, or that it had been approved a priori by theCommittee, which, as his delegation understood it, was notthe case.

33. Mr. SILVA (Peru) said he shared the doubts of therepresentative of Venezuela. He wondered whether, byleaving its amendment to the Drafting Committee, theSwiss delegation was not in fact supporting anotheramendment to article 30.

34. Mr. ROVINE (United States of America) said that,while there appeared to be no objection in the Committeeto the substance of the Swiss amendment, there was adivision of opinion as to its place in the Convention. He wasin favour of referring it to the Drafting Committee not asan amendment to article 30 but on the understanding thatthe Drafting Committee would advise the Committee of theWhole on its appropriate placing, whether somewhere in theConvention or whether perhaps in the form of a resolution.

35. Mr. RITTER (Switzerland) said that, in suggestingthat the amendment be submitted to the Drafting Com-mittee, his delegation had simply been trying to interpretthe trend of the discussion and to see whether the wordingcould be improved or whether the idea occurred elsewherein the convention. If it did not, the Drafting Committeemight advise the Committee of the Whole whether it shouldgo into article 30 or elsewhere. His delegation in no wayassumed its acceptance by the Committee or that it wouldbe in any way binding.

36. Mrs. BOKOR-SZEGO (Hungary) said that from theprocedural point of view, she felt that the mandateintended for the Drafting Committee went beyond itsactual competence. If the amendment were to be referredanywhere, it would be more appropriately referred to theinformal consultation group.

37. Sir Ian SINCLAIR (United Kingdom) said that in hisopinion the Drafting Committee had a mandate in relationto the text of the Convention as a whole. If, withoutexpressing a view on the substance of the Swiss amend-ment, the Committee of the Whole referred it to theDrafting Committee, it would be open to the latter to lookat it as an amendment either to article 30 or article 14, andmake its recommendations to the Committee on theappropriateness or otherwise of its incorporation into theConvention as a whole as a purely drafting matter. If, onthe other hand, the Drafting Committee said that in its viewnothing needed to be added, since the idea was alreadycovered by the Convention as a whole and particularly byarticle 14, that in itself would be a contribution to asolution to the problem facing the Committee of the Whole

as a result of the Swiss amendment. It would be in theinterests of the Committee of the Whole to accept theprocedure suggested by the representative of Switzerlandand await the recommendations of the Drafting Committeebefore taking a final decision.

38. Mr. MAKAREVICH (Ukrainian Soviet SocialistRepublic) said that, at the previous session, amendmentswhich were not matters of substance had not been referredto the Drafting Committee unless that had been the wish ofthe Committee of the Whole. The Swiss amendment wasnot simply a drafting amendment. The precedent set at the1977 session was that amendments by delegations could, atthe request of those delegations, be submitted to theDrafting Committee if they contained amendments ofinterest to the latter. The Committee of the Whole wouldhave to express its support for the amendment first,however.

39. Mr. MAIGA (Mali) said that the question of legaltechniques referred to by 'the representative of Switzerlanddid not arise. It was perfectly clear from paragraph 28 ofthe commentary to articles 30, 31 and 32 (ibid., p. 98) thatthe Swiss amendment was one of substance and could notbe sent to the Drafting Committee as a drafting amend-ment.

40. The CHAIRMAN suggested that the Committeemight vote on the amendment accordingly.

41. Mr. MUSEUX (France) said that he fully agreed withthe Chairman's original proposal to send the Swiss amend-ment to the Drafting Committee with the interpretationgiven by the representative of Switzerland, namely, in orderthat the Drafting Committee might consider whether theidea it contained should be taken into account in article 30or elsewhere. A vote on the substance of the amendmentwould only confuse the issue, judging from the discussionand the impression that it was intended simply to clarify apoint in paragraph 2. The Swiss delegation did not want avote. He urged the Committee to support the Chairman'soriginal suggestion and allow the Drafting Committee toprovide the answer which the Swiss delegation sought. TheCommittee of the Whole could vote later on. At the presentstage the amendment was not ready or clear enough to voteon.

42. Mr. RYBAKOV (Union of Soviet Socialist Republics)said that his delegation had no objection at all to referringthe Swiss amendment to the Drafting Committee as anauxiliary paper, but in the meantime the Committee of theWhole had to take a decision on article 30. In the absenceof other amendments, he took it that the Committee wasready to adopt article 30 as drafted by the InternationalLaw Commission and to submit it to the Drafting Com-mittee, which could consider it together with the Swissamendment; that procedure would be in line with thewishes of almost all the delegations.

43. Mr. TODOROV (Bulgaria) said that he agreed withthat view. Since the representative of Switzerland had not


insisted on a vote, a vote was not necessary. The DraftingCommittee could consider only the drafting elements inthe amendment if any. The Committee of the Whole couldnot expect to see the Swiss amendment before it again,should the Drafting Committee decide that it was not oneof a drafting nature.

44. Mr. RITTER (Switzerland) said that there appearedto be a certain amount of misunderstanding about hisproposed amendment. He had not withdrawn it, but hadsaid that to simplify matters it would be better to knowwhether or not the idea called for a textual amendment orwhether the point was already covered. He had thoughtthat the Drafting Committee should decide whether or notit was needed and, if so, where it should be placed.

45. Mr. RYBAKOV (Union of Soviet Socialist Republics)said that if the Swiss amendment was transferred to theDrafting Committee before the Committee of the Wholehad taken a decision on it, that would be an unprecedentedmove,

46. Mr. TORNARITIS (Cyprus) said that the question ofprocedure and that of principle were being confused. Thequestion of principle fell within the competence of theCommittee of the Whole and not that of the DraftingCommittee. The Drafting Committee had to give anappropriate form to any resolution taken by the Committeeof the Whole, so the latter could not refer anything to itwhich had not been decided. By referring the Swissamendment to the Drafting Committee without a decision,the Committee of the Whole would be asking the DraftingCommittee to function as its legal adviser. If that was whatthe Committee of the Whole intended, then it must give theDrafting Committee clear directions.

47. Mr. MUDHO (Kenya) suggested that, in accordancewith paragraph 3 of rule 34 of the rules of procedure(A/CONF.80/8), the Chairman be asked to give a ruling onthe matter.

48. Sir Ian SINCLAIR (United Kingdom) said that,whereas the representatives of the USSR and Cyprusseemed to feel that the Drafting Committee had a remitthat was basically confined to the preparation of draftarticles, it seemed clear from rule 47, paragraph 2, of therules of procedure that it would be perfectly proper for theCommittee of the Whole to request the Drafting Committeeto advise it on those elements of the Swiss amendmentwhich were essentially drafting matters. . Since what thedelegation of Switzerland was seeking was simply anopinion as to whether or not the current text of the draftConvention covered the concern it had sought to express inits draft amendment, he believed that the Committee of the"hole could ask the Drafting Committee to look into thematter.

49- Mr. MASUD (Pakistan) said that it appeared to him"^t other delegations, and the Swiss delegation itself, werencertain whether the Swiss amendment was purely a

drafting suggestion, or whether it also touched on mattersof substance. Perhaps it would be best to allow time fordelegations to seek advice on that point before any decisionwas taken concerning the amendment. If the amendmentwas referred to the Drafting Committee, that body wouldnaturally be able to consider only the drafting aspects ofthe proposal.

50. Mr. MARESCA (Italy) said that the Committeeshould not allow itself to be bemused by titles. Draftingcommittees had historically had differing functions, andone of the roles which it was now customary for them toplay was that of adviser to the larger bodies of which theywere organs in matters such as that which was now beforethe Committee of the Whole. It should be noted that theDrafting Committee would be asked to do no more than tosay whether, in the light of the present text of the draftarticles and the concern expressed by the representative ofSwitzerland, an amendment such as the one proposed wasnecessary. The decision whether to accept the substance ofsuch an amendment would, of course, lie with theCommittee of the Whole.

51. Mr. PfiREZ CHIRIBOGA (Venezuela) said that,when his delegation had first spoken, it had been under theimpression that the Drafting Committee would be asked toconsider the Swiss amendment only after the Committee ofthe Whole had approved the substance thereof. It nowunderstood, however, that no decision was to be taken onthe substance of the provision, and that the DraftingCommittee was to be asked to make suggestions concerningthe wording of the proposal. Although his delegationconsidered that such a procedure would constitute a liberalinterpretation of rule 47, paragraph 2, of the rules ofprocedure, it would have no objection to its adoption,providing the Drafting Committee refrained from com-menting on the substance of the proposal. Alternatively,the Swiss amendment might, as suggested by the representa-tive of Hungary, be submitted to the informal consultationgroup, if that would not unduly delay the work of theConference.

52. Mr. MUDHO (Kenya) said that he did not feel thatthe statement by the United Kingdom delegation on thecompetence of the Drafting Committee had settled thequestion whether the Swiss proposal was a substantive or adrafting amendment. His delegation would, in principle,have no objection to the submission of the amendment tothe Drafting Committee or the informal consultation group,but, before taking its final decision on that matter, it wouldwelcome a ruling from the Chairman concerning the precisenature of the amendment.

53. Mr. TORNARITIS (Cyprus) said that he would notobject to the Drafting Committee's being asked whether thepresent text of the draft Convention covered the concern ofthe Swiss delegation, since the problemof the Swissamendment would be finally settled in the DraftingCommittee if it replied in the affirmative, but would bereturned to the Committee of the Whole if the DraftingCommittee replied in the negative.


54. Mr. ECONOMIDES (Greece) said he supported theview that the Committee of the Whole could ask theDrafting Committee for advice concerning the Swiss amend-ment. If the Drafting Committee answered "Yes" to thequestion whether the amendment was already covered bythe present text of the draft articles, the matter need go nofurther. If, on the other hand, the Drafting Committeereplied "No", it should be asked whether the Swissamendment merely served to make the draft articles clearer,and if so, where it could best be incorporated in them. Butif the Drafting Committee felt, like the representative ofMali, that the amendment added a new element to the draftarticles, it would naturally have to refer the matter back tothe Committee of the Whole for further consideration.

55. Mr. RASSOLKO (Byelorussian Soviet Socialist Re-public) said that, to his mind, there was no need for theprocedural discussion in which the Committee was cur-rently engaged, since many delegations besides that ofSwitzerland were clearly of the opinion that the Swissproposal was a substantive amendment. It was, indeed,difficult to see how a proposal to add an entire paragraphto a text could be considered as anything else. In thosecircumstances, the Committee of the Whole must decidewhether it wished to retain or to reject the amendment.Perhaps, however, the Chairman of the Drafting Committeecould throw some light on the matter.

56. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that, when he had spoken on the matter at the37th meeting, he had expressed some doubt concerning thenature of the Swiss proposal. He had said that the proposalmight be sent to the Drafting Committee for the latter todetermine whether it was already covered in the draftarticles or whether, if the Drafting Committee felt it to bepurely a drafting suggestion, it required any modification.He had also said, however, that if the Drafting Committeefelt the proposal was substantive, the decision on how totreat it would be for the Committee of the Whole. As anorgan of the Conference, the Drafting Committee couldstudy only such matters as were referred to it by theConference itself or by the Committee of the Whole. It was,in particular, bound to follow the instructions of theConference or the Committee of the Whole in relation tomatters of substance. In view of the interest that had beenaroused by the Swiss proposal, it seemed advisable that theCommittee of the Whole should take a decision on thedisposition of the Swiss amendment.

57. The CHAIRMAN said that opinions were divided onthe nature of the Swiss amendment and he accordinglyinvited the Committee of the Whole to vote on thatproposal as contained in document A/CONF.80/C.1/L.44.

The Swiss amendment was rejected by 31 votes to 15,with 32 abstentions.

58. The CHAIRMAN said that, if there was no objection,he would take it that the Committee provisionally adoptedthe text of article 30 as proposed by the International Law

Commission and referred it to the Drafting Committee forconsideration.

It was so agreed.10

59. Mr. SILVA (Peru) suggested that a repetition of thedifficulties that the Committee had just encountered, andthe attendant loss of time, could be avoided in future ifrecourse were had to the good offices of the informalcontact group.

60. The CHAIRMAN said he agreed that the Conferenceshould utilize the services of any of its organs that mightfacilitate its task or save its time.

PROPOSED RESOLUTION OF THE CONFERENCE ON INCOM-PATIBLE TREATY OBLIGATIONS11

61. The CHAIRMAN invited the Committee to considerthe proposal for the resolution of the Conference onIncompatible Treaty Obligations submitted by the UnitedStates of America in document A/CONF.80/C.1/L.51.

62. Mr. PEREZ CHIRIBOGA (Venezuela) said that hisdelegation supported the proposed resolution, but hopedthat the Drafting Committee would bring the Spanishversion of that proposal into line with the English text bychanging the expression "obligaciones convencionales".

63. Mr. RYBAKOV (Union of Soviet Socialist Re-publics), on a point of order, said it was his understandingthat draft resolutions such as that now proposed werenormally considered only after work on the entire text ofthe draft convention to which they related had beencompleted. He would therefore be grateful for a ruling bythe Chairman whether the Committee should abandon thatpractice in order to examine the United States draftresolution forthwith.

64. The CHAIRMAN said that he would be willing topostpone discussion of the draft resolution if such was thewill of the Committee.

65. Mr. KRISHNADASAN (Swaziland) said that hisdelegation would have no objection to the postponement ofdiscussion of the United States or any other draft resol-utions until the text of the draft convention had beencompleted. His delegation's attitude to the substance of theUnited States proposal would be contingent upon therestriction of the scope of the proposal to article 30.

66. Sir Ian SINCLAIR (United Kingdom) said he agreedwith the representative of the Union of Soviet SocialistRepublics that formal resolutions were normally consideredafter the discussion of substantive draft articles had been

For resumption of the discussion of article 30, see 5 J I

meeting, paras. 7 and 8.1 1 Submitted by the United States of America (A/CONF-80/

C.1/L.51).


completed. However the Vienna Conference on the Law ofTreaties had established a precedent by deciding, in thecontext of the debate on what subsequently became article52 of the Vienna Convention on the Law of Treaties,12

that a particular amendment could be disposed of bytransforming certain substantive elements of the proposalinto a resolution of the Conference. It would, therefore,seem justified to examine the United States draft resolutionat the present time, particularly as it clearly related toproblems which had been raised during the Committee'sdiscussion of article 30. It might be inappropriate to take afinal decision on the draft resolution immediately, but theCommittee should be able to decide whether it felt aresolution of the type proposed was required and thenentrust the preparation of a draft text to the informalcontact group or some other body.

67. Mr. ROVINE (United States of America) said hesupported the reasoning of the United Kingdom represen-tative. Since his delegation's proposal was very directlyrelated to problems which it and other delegations saw inarticle 30 and perhaps also article 29, its final thinking onthose articles would depend on the Committee's decisionconcerning the draft resolution.

68. Mr. SILVA (Peni) said that, in general his delegationhad no objection to the substance of the draft resolution. Itdid, however, share the objection that had been raised bythe delegation of Venezuela to the Spanish version of theproposal.

69. The CHAIRMAN invited the delegations of Ve-nezuela and Peru to submit any suggestions they might havefor the improvement of the Spanish version of the draftresolution to the Secretariat.

70. Mr. RYBAKOV (Union of Soviet Socialist Republics)said that, while he continued to believe that the generalpractice was to consider draft resolutions when the work onall draft articles had been completed, he appreciated thatthere was a special link between the United States draftresolution and the articles that the Committee was in theprocess of examining. His delegation would therefore bewilling for discussion of the United States draft resolutionto begin forthwith, on the understanding that the finaldecision concerning the disposition of that provision wouldbe taken in the light of the opinions which came to lightduring that discussion.

71- Mr. BRECKENRIDGE (Sri Lanka) said he wished torepeat the strong objection which his delegation hadexpressed during the discussion of article 30 to thereference in the United States draft resolution to article 29." felt that reference raised anew the entire question of thecounter-position of the "clean slate" principle and that ofcontinuity, a matter which the Committee had alreadysettled. It also felt that the resolution, which at present had«iriost the form of a draft article, should be preceded by aPreamble setting out the reason why it had been proposed.

• .

' Article 49 of the draft articles.

72. Mr. KRISHNADASAN (Swaziland) asked whetherthe sponsor of the draft resolution felt that it could belimited to article 30 alone.

73. Mr. ROVINE (United States of America) said thatthe draft resolution could be confined to article 30, butthat his delegation would prefer to retain the reference toarticle 29 as well, since it felt that the application of thatarticle might also result in conflict between treaty regimes.


40th MEETINGWednesday, 2 August 1978, at 10.25 a.m.

Chairman: Mr. RAID (Egypt)


[Agenda item 11 ] {continued)

PROPOSED RESOLUTION OF THE CONFERENCE ON INCOM-PATIBLE TREATY OBLIGATIONS1 (concluded)

1. Mr. ROVINE (United States of America) said that hisdelegation had deleted from its proposal (A/CONF.80/C.l/L.51/Rev.l) the reference to article 29 which appearedin document A/CONF.80/C.1/L.51 in order to make itmore easily acceptable to other members of the Committee,and had also made some other drafting changes. He wouldnot press for a vote on the proposal at that meeting, asdelegations might wish to obtain instructions from theirGovernments on the matter; in the meantime the proposalmight perhaps be referred to an informal consultationsgroup.

2. Mr. SCOTLAND (Guyana) suggested that it might beappropriate to add to the text a preamble stating thereasons for the proposal and in the operative part, a phrasestarting with the words "The Conference recommends."

3. Mr. SANYAOLU (Nigeria) said that while he approvedthe principle stated in the United States proposal, hisdelegation shared the view expressed by the representativeof Brazil2, that it might be preferable to deal with thatquestion in the final clauses relating to the settlement ofdisputes or in the preamble to the Final Act of theConference. Moreover, as the proposal referred only toarticle 30 he wondered whether that was the only article

1 United States of America, A/CONF.80/C.l/L.51/Rev.l. Forthe initial proposal, see 39th meeting, foot-note 11.

2 See 38th meeting.


which concerned incompatible treaty obligations. It wasquite certain, however, that the proposal could not apply toarticle 29, which had not been conceived from the sameviewpoint as article 30.

4. Mr. HAMZA (United Arab Emirates) said that hisdelegation, believing that the problem of incompatibleobligations did not belong to the topic of succession ofStates, considered that the United States proposal apper-tained rather to the Convention on the Law of Treaties andthe question of the peaceful settlement of disputes. Hencethe Committee should therefore either reject the proposalor study it thoroughly in connexion with the question ofsettlement of disputes.

5. Mr. DIENG (Senegal) welcomed the effort made by theUnited States delegation to find a solution to all thequestions raised by article 30. He wondered, however,whether the problem had not already been solved by theVienna Convention on the Law of Treaties and the UnitedNations Charter; he saw no advantage in providing ex-pressly that possible conflicts should be solved by con-sultation and negotiation. In his opinion, the proposal hadnothing to do with succession of States in respect oftreaties, and was superfluous.

6. Mr. NAKAGAWA (Japan) supported the United Statesproposal, but pointed out that conflicting treaty obligationscould also arise under articles 31 and 32. Hence those twoarticles should perhaps be mentioned in the text of theproposal.

7. Mr. TREVIRANUS (Federal Republic of Germany)said he did not think that the question of incompatibletreaty obligations raised by articles 29 and 30 had noconnexion with succession of States. Indeed, he wonderedhow the question could be settled by the general rules ofthe law of treaties or the Vienna Convention, since in thepresent case there was not only one predecessor State, buttwo or more. Moreover, everything possible should be doneto make the text adopted by the Conference acceptable tothe greatest possible number of States, since the codifi-cation of international law did not depend solely on thework accomplished by the Conference, but also on thesubsequent conduct of States.

8. Mr. MARESCA (Italy) said he was grateful to theUnited States delegation for having tried to allay the doubtsraised by article 30, all the more so because common sensecalled for an effort to prevent conflicts. The United Statesproposal rightly referred to article 30, but to mention onearticle might mean excluding another from the applicationof the provision. Disputes might arise in connexion withany rule. The United States proposal was therefore useful,but should apply to the draft as a whole. It was in the bestinterests of States to insert provisions on the peaceful settle-ment of disputes in the body of the draft Convention.

9. Mr. PEREZ CHIRIBOGA (Venezuela) said he sup-ported the idea expressed in the United States proposal butshared the view of the representative of Guyana that, as it

stood, the proposal was more like a draft article that a draftresolution. A preamble should therefore be added and anoperative part drafted. As he had pointed out during thediscussion on draft article 30,3 in the present state of worldaffairs that article might prove to be the most importantarticle in the Convention in the not too distant future. As itcould give rise to controversy, the Conference shouldemphasize the need for direct negotiations between theparties to the treaties in question, which was the sovereignformula for the settlement of disputes. Moreover, the factthat the United States proposal emphasized article 30,could not be interpreted as preventing the parties todisputes arising under other articles from also resorting toconsultations. The comments and doubts of some del-egations regarding the United States proposal might perhapsbe justified if it was in the form of a draft article, but as aConference resolution, which was not an integral part ofthe Convention, it could not harm anyone and would ratherreflect the feeling of the Conference that disputes should besettled, first and foremost, by direct negotiations betweenthe parties.

10. Mr. KOROMA (Sierra Leone) said he subscribed tothe view of the representative of Italy on the United Statesproposal, but feared that the suggestion that it be placed ina section dealing with the settlement of disputes mightopen Pandora's box. At present, the United States proposalreferred to draft article 30, but as the Japanese delegationhad said, it could also refer to draft articles 31 and 32. Inprinciple, he approved of the proposal.

11. Mr. LANG (Austria) said he welcomed the UnitedStates proposal, which embodied some useful ideas. He wasalso glad to note that the United States delegation wasprepared to seek wide support for its text by informalcontacts. The proposal reflected the idea that a balanceshould be established between the principle of continuityand that of the consent of States to be bound by treatyobligations. It also took into account the need to avoiduncertainty of the Law, which would not serve the interestsof any member of the international community. The rightof peoples to self-determination and the need for States tomaintain friendly relations with one another supported theidea behind the proposal, namely, that the parties totreaties should, as far as possible, settle their disputes byconsultation and negotiation. He hoped that the informalcontacts would make it possible to place that idea in itsproper setting.

12. Mr. KRISHNADASAN (Swaziland) unreservedly sup-ported the view of the representative of Sierra Leone. Itwould be logical to relate the United States proposal todraft articles 31 and 32. On the other hand, he was glad theUnited States delegation had deleted the reference to draftarticle 29.

13. Mr. KASASA-MUTATI (Zaire) observed that theUnited States proposal was based on the idea that draftarticle 30, as it stood, might give rise to conflicting

3 See 38th meeting, para. 29.


interpretations by States parties to certain treaties. But thesame applied to articles 31, 32 and 33. His delegation evenbelieved that some of the provisions already adopted by theCommittee could also give rise to conflicts. He thought theproposal should be placed in a section dealing with thesettlement of disputes; as there were no provisions on thatquestion, the proposal offered a means of remedyingsituations involving conflict. It should, however, be pre-sented as a draft resolution comprising a preamble and anoperative part.

14. Mr. GHADAMSI (Libyan Arab Jamahiriya) said heendorsed the statement made by the representative of theUnited Arab Emirates, for the question dealt with in theUnited States proposal had nothing to do with successionof States in respect of treaties. It would therefore bedifficult for his delegation to support the proposal.

15. Mr. GILCHRIST (Australia) supported the UnitedStates proposal and said that whatever the outcome of thediscussions on the procedure to be followed in regard to thesettlement of disputes, that proposal would be of greatpractical value. He also approved of the suggestion by therepresentative of Guyana that a preamble could be draftedduring informal consultations, before the Committee votedon the proposal.

16. Mr. ROVINE (United States of America) said that hisdelegation had no objection to the drafting of a preambleto make its proposal into a Conference resolution, ratherthan an article in the proper sense of the term. It did notobject, either, to extending the scope of the proposal todraft articles 31 and 32, but doubted whether it wasadvisable to place it in a section of the draft dealing withthe settlement of disputes, since that would amount toassuming that draft article 30 would necessarily give rise todisputes. In most cases, conflicts between treaty obligationsresulting from a succession of States were settled byconsultation. Finally, as he had already intimated, hisdelegation saw no reason why its proposal should not bereferred to an informal consultations group.

17. Mr. BOUBACAR (Mali) said he wondered whetherthe Conference was concerned with succession of States inrespect of treaties or with succession of States in respect ofmatters other than treaties, since it followed from theUnited States proposal that the draft Convention wouldimpose incompatible obligations on successor States—amatter which would pertain more to the draft Conventionon succession of States in respect of matters other thantreaties, which was under study by the International LawCommission. Furthermore, a convention was prepared onthe basis of the principle that it would be applied in goodfaith: could a resolution, which was ultimately no morethan a recommendation, solve the problem of conflictingtreaty obligations? The informal consultations group whichWas to consider the United States proposal should bear inmind the recommendations made by his delegation whenwe General Assembly had examined the question of thedefinition of aggression and, in particular, the role of thehternational Court of Justice.

18. The CHAIRMAN said that, if there was no objection,he would take it that the United States proposal (A/CONF.80/C.l/L.51/Rev.l) was to be referred to the In-formal Consultations Group.

It was so agreed,4

ARTICLE 31 (Effects of a uniting of States in respect oftreaties not in force at the date of the succession ofStates)

19. The CHAIRMAN said that, if there was no objection,he would take it that the Committee decided to refer article31 to the Drafting Committee.

It was so agreed.s

ARTICLE 32 (Effects of a uniting of States in respect oftreaties signed by a predecessor State subject to ratifi-cation, acceptance or approval)6

20. Mr. KRISHNADASAN (Swaziland) said that withregard to articles 32 and 36, the objections of his delegationand the Swedish delegation were the same as theirobjections to article 18 and to article 29, paragraph 3. Hewould merely draw the Committee's attention to theInternational Law Commission's commentary to article 18(A/CONF.80/4, pp. 60-62), which confirmed the validity ofthose objections, and to the statement on that article madeby the representative of Swaziland on behalf of hisdelegation and that of Sweden7 at the, 27th Meeting of theCommittee.

21. He was more than ever convinced that article 32 wasundesirable and was not a good example of the progressivedevelopment of international law, for there was no legalnexus by virtue of which the mere signature of a treaty by apredecessor State enabled the successor State to ratify thetreaty. When that question had been considered in con-nexion with article 18, the amendment to that articlesubmitted by Swaziland and Sweden (A/CONF.80/C.1/L.23) had been rejected by 36 votes to 25, with 17abstentions, and paragraph 2 of article 18 had then beenadopted by 43 votes to 3, with 29 abstentions. It wasbecause that article now appeared in the draft, as also didarticle 29, paragraph 3, and for that reason only, that thedelegations of Swaziland and Sweden had decided towithdraw their amendments to articles 32 and 36 (A/CONF.80/C.1/L.23). They requested, however, that article32 should be put to the vote.

4 Foi the resumption of the discussion of the proposal, see 54thmeeting.

5 For the resumption of the discussion of article 31, see 53rdmeeting paras. 9-10.

6 The following amendment was submitted at the 1977 session:Swaziland and Sweden, A/CONF.80/C.1/L.23.

1 Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties, vol. I, Summary records ofthe plenary meetings and of the meetings of the Committee of theWhole (United Nations publication Sales No. E.78.V.8) p. 18727th meeting, para. 27.


22. Mrs. THAKORE (India) said she was opposed todeleting article 32, as proposed by Swaziland and Sweden,since that article contained a rule that was similar, mutatismutandis, to the rule in article 18 relating to newlyindependent States. Under that rule, a successor Stateformed by a uniting of States could become a party or acontracting State to a treaty signed by one of its prede-cessor States. It could thereby complete the processinitiated by the predecessor State.

23. In the opinion of the Indian delegation, that solutionwas the best for the effectiveness of multilateral treaties,the progressive development of international law andinternational co-operation. It did not interfere with theoption of the successor State to become a party to thetreaty in question or not to do so, since ratification,acceptance or approval were also sovereign acts, equivalentto accession by the successor State. Hence, the Indiandelegation did not share the misgivings expressed by thesponsors of the amendment to article 32, that a signaturesubject to ratification, acceptance or approval did notcreate a legal nexus between the treaty and the territoryconcerned, on the basis of which a successor State couldparticipate in a treaty under the law of succession. In thatconnexion, she drew attention to the statement she hadmade on article 18 at the 27th meeting of the Committeeof the Whole.8

24. The Indian delegation fully supported the viewexpressed by the International Law Commission in para-graph 32 of its commentary to articles 30, 31 and 32,(A/CONF.80/4, p. 99) that there was no valid reason for adifference in treatment between two categories of successorStates, namely, newly independent States and those formedby a uniting of States. The amendment submitted bySwaziland and Sweden, calling for the deletion of article18, had been rejected by the Committee of the Whole by36 votes to 25, with 17 abstentions, and article 18 had beenadopted without a vote. She urged the Committee to followa similar course in regard to article 32 and adopt it byconsensus.

Article 32, as proposed by the International Law Com-mission, was provisionally adopted by 52 votes to 4, •with22 abstentions, and referred to the Drafting Committee.9

ARTICLE 33 (Succession of States in cases of separation ofparts of a State)1 °

25. The CHAIRMAN invited the representatives ofSwitzerland and France to introduce their amendment toarticle 33.

Ibid., p. 187, 27th meeting, paias. 28-30.Q

For resumption of the discussion of article 32, see 53rdmeeting, paras. 11-12.

At the resumed session the following amendments weresubmitted: France and Switzerland, A/CONF.80/C.1/L.4 I/Rev. 1(this amendment to article 33 was the same as that submitted byboth countries at the 1977 session in document A/CONF.80/C.1/L.41); Federal Republic of Germany, A/CONF.80/C.1/L.52;Pakistan, A/CONF.80/C.1/L.54.

26. Mr. RITTER (Switzerland) said that the amendmentsto articles 33 and 34 submitted by his delegation and thatof France (A/CONF.80/C.l/L.41/Rev.l) touched on whatwas probably the central problem of the draft, namely thedifference between the regime prescribed in article 15 fornewly independent States and the regime prescribed inarticles 33 and 34 for the case of separation of parts of aState. That duality of regimes was, in his opinion, the mostcharacteristic feature of the draft. On that point, theInternational Law Commission, making a bold and delib-erate choice, had departed from existing international lawto propose an innovative solution involving progressivedevelopment. The Commission having thus performed itstask, it was now incumbent on States to say whether theywished to confirm the new solution proposed to them andmake it a part of positive international law, or whether theypreferred to confirm the existing law.

27. In his view, the innovative element of the draftarticles did not lie in the solution proposed in article 15 fornewly independent States. The appearance of those Stateswas, of course, one of the most notable phenomena ofcontemporary international life, but the rules of classicalinternational law on succession of States had provedperfectly well adapted to the new situation and the draftarticles had confirmed that point by retaining the tra-ditional regime for newly independent States. For the"clean slate" rule, which was the basic principle of classicalinternational law concerning succession of States in respectof treaties, had been generally applied in internationalrelations long before decolonization. The International LawCommission had pointed that out in paragraph 3 of itscommentary to article 15 of the draft (A/CONF.80/4,p. 52), citing the cases of accession to independence of theUnited States of America, the Spanish American Republics,Belgium, Panama, Ireland, Poland, Czechoslovakia andFinland.

28. The application of the "clean-slate" rule was not achoice of legal policy, but a logical consequence of theprinciple res inter alios acta, according to which a treatywas not binding on a State which was not a party to it, andno legal rule adopted without the participation of a State,for instance at a universal codification conference, couldbind that State by a treaty without its consent.

29. The principle of pacta sunt servanda was sometimesset against that of tabula rasa as though they were twocomplementary rules, between which codification had tochoose according to whether the legitimate interests of theinternational community were on one side or the other. Itwas obvious, however, that the rule pacta sunt servanda,which meant respect for treaties, applied only to a Statewhich was bound by a treaty. A State which was no longerbound by a treaty was naturally not required to respect it.Thus the pacta sunt servanda rule was applicable only in sofar as the situation was not one of res inter alios acta.

30. That was why, in the debates during the first part ofthe session, the Swiss delegation had reminded the Con-ference, whenever the occasion arose, that it associated the"clean slate" rule with the principle of res inter alios actaand not with the principle of self-determination. The


principle of self-determination was, indeed, a politicalmaxim, and one that was now universally recognized, butto attach the "clean slate" rule to such a maxim, howevermuch respected it might be, was to give that rule a politicaltinge which it did not have. There would thus be somedanger of losing sight of the fact that a State could not bebound by a treaty it had not accepted, that that rule wasabsolute and that it applied to all States, and hence to allnew States. Moreover even if the principle of self-deter-mination was taken as the basis, the solution arrived atwould be the same. For as the Government of Mexico hadpointed out in its written comments of 1975 "the right toself-determination if applicable to all peoples and, there-fore, all new States deserve equal treatment, regardless ofwhether they have been colonial dependencies or not"(A/CONF.80/5, p. 258).

31. When it passed from the case of newly independentStates to that of other new States, that was to say,according to draft article 33, to the case in which "a part orparts of the territory of a State separate to form one ormore States", the International Law Commission aban-doned the "clean slate" principle and introduced, on thecontrary, a rule of continuity. It was quite clear that indoing so it had been aware of the fact that it was notsimply reflecting the present state of the law, but wasproposing progressive development. The Commission hadalso pointed out in paragraph 26 of its commentary toarticle 33 and 34 that "In cases of secession the practiceprior to the United Nations era, while there may be one ortwo inconsistencies, provides support for the clean slaterule in the form in which it is expressed in article 15 of thepresent draft: i.e., that a seceding State, as a newlyindependent State, is not bound to maintain in force, orbecome a party to, its predecessor's treaties" (A/CONF.80/4, p. 105). Since there was no doubt that theInternational Law Commission had wished to make achange, it was first necessary to make sure that the ruleproposed would have the desired effect. He had mostserious doubts on that point. For "clean slate" rule waspart of general international law and would continue to beso, whatever solution was adopted in the Convention. Itwould therefore apply to new States which, at the time oftheir accession to independence, would obviously not beparties to the Convention. The "clean slate" rule wouldtherefore take full effect and the treaties concluded by thepredecessor State would not remain in force for thesuccessor State at the time when it acceded to indepen-dence. Could those treaties by brought back into force byvirtue of the ratification of the codification Convention bythe new State? That was no doubt the intention of theParties, but even so, the formula "any treaty in force at thedate of the succession of States ... continues in force ...",Which appeared in paragraph 1 (a) of article 33, did notcorrespond to reality and hence was not applicable, since thetreaty would not have continued in force, but would haveentered into force for the successor State at the momentwhen it acceded to the codification Convention.

**•• The debates of the International Law Commissionshowed that the solution it proposed had first beenconceived for the case of dissolution of a union of States.

But the Commission had noted that it was difficult to coverthe different cases of unions of States in a single legalformula, and it had finally proposed continuity as the solesolution for all cases of dissolution. The assimilation of onecase to another was not without difficulties, however, sincea union of States, as its name implied, was a plurality ofentities, each of which possessed separate internationalpersonality. It was therefore logical that in the case ofdissolution of a union, each of these entities should remainbound by the treaties which applied to it. In the case of aunitary State, on the contrary, the parties did not haveinternational personality and consequently were not thesubjects of obligations which they could retain after theyseceded. If the State from which a territory had separatedremained in existence, it naturally retained its obligations;if it disappeared because all its parts had separated, thesubject of the obligations no longer existed and theobligations were extinguished.

33. Several States had pointed out in their writtencomments that it was difficult to distinguish between anewly independent State and a State resulting from aseparation. Of course everyone was familiar with what thedraft designated by the expression "newly independentState", for that was a matter of political and historical fact.But no one had ever proposed an objective legal criterionfor distinguishing the newly independent State, in thatparticular sense, from other new States. The InternationalLaw Commission had been aware of that point, since inparagraph 3 of article 33 it had introduced a provisiondesigned to make the system more flexible by takingaccount of the case in which "a part of the territory of aState separates from it and becomes a State in circum-stances which are essentially of the same character as thoseexisting in the case of the formation of a newly indepen-dent State". But if the International Law Commission itselfhad noted the absence of objective legal criteria fordistinguishing between those two situations, it might beasked how those called upon to apply the Conventionwould be able to establish that distinction. Consequently,paragraph 3 of article 33 might raise insurmountableinterpretation difficulties. It was for all those reasons thatFrance and Switzerland proposed that the "clean slate" rulebe made generally valid.

34. It might be asked, however, whether there would notbe practical disadvantages in adopting that course andwhether the proposed amendment would not have theeffect of creating a vacuum in international relations bycausing the extinction of treaties whose maintenance wouldbe in the interests of the new State and of third States. Hebelieved that in reality there was no such danger and thatwhere there was a common interest, the two States wouldnot fail to reach agreement in order to ensure thecontinuity of the treaty.

35. Indeed, the practice of decolonization showed that inspite of the "clean slate" principle, most of the treatiesconcluded by the colonial Powers with third States hadbeen maintained in force by agreement between those thirdStates and the newly independent State. That, at least, hadbeen the experience of Switzerland in its relations with

54 Summaiy records — Committee of the Whole

newly independent States. It was therefore reasonable torely on agreement between the States concerned, whereas itwould be dangerous to impose on them treaties which,having been concluded by another State, might not be inthe interests of either of the parties.

36. The main concern of the co-sponsors of the amend-ments to articles 2, 33 and 34, issued as documentA/CONF.80/C.l/L.41/Rev.l, had been to adopt aneconomical solution which would make it possible toisolate the problem and limit the reflex effects, in otherwords to ensure that the proposed amendment did not haverepercussions on the other parts of the draft, particularlyprovisions already adopted.

37. The essential part of the proposal by the French andSwiss delegations was the deletion of subparagraph (a) ofarticle 33, paragraph 1, which imposed on the successorState the continuity of treaties concluded by the prede-cessor State, and of article 33, paragraph 3, which made itpossible to assimilate certain cases of separation to the caseof formation of a newly independent State—a provisionwhich would be pointless once a single regime had beenestablished.38. The co-sponsors proposed, on the other hand, thatsubparagraph (b) of paragraph 1, relating to treaties in force"in respect only of that part of the territory of thepredecessor State which has become a successor State",should be retained, since the local character of thosetreaties showed that they were of a territorial nature, orthat the territory which had separated had already enjoyedsome form of international personality under the previousregime.

39. They also proposed the retention of article 34,relating to the position if a State continued after separationof part of its territory, but that provision would become acompliment to the "clean slate" rule formulated inarticle 15, since the latter rule would have general validityand be applicable to all cases of new States. Article 34would therefore be renumbered 15 bis.

40. With regard to the consequences of the proposedamendment to the definitions in article 2, the essentialpurpose was to remodel the definition of a "newlyindependent State" so as to cover all cases of new States.The co-sponsors therefore proposed that in subpara-graph (f) of article 2, paragraph 1, the notion of a "depen-dent territory", which clearly referred to a colonialsituation, should be dropped, so that the definition wouldcover any territory, whether it was an integral part of thenational territory, a dependent or associated territory, or amember State of a union or federation, etc. In the newdefinition, they had adopted the notion of a territory "inrespect of which competence for international relations wasexercised either by a single predecessor State or by two ormore predecessor States which have not been entirelyabsorbed by the successor State".

41. In the case of a single predecessor State, that form ofwords covered either the separation of a territory whichbecame an independent State, whereas the former Statesubsisted with a smaller territory, or the dissolution of thepredecessor State, which disappeared.

42. In the case of two or more predecessor States, thewording covered the situation of which the classic examplewas the re-establishment of the sovereignty of Poland in1918, with territories detached from Germany, Austria andRussia. In contrast, the proposed amendment had toexclude the case of uniting of States covered by article 30:the co-sponsors had avoided that difficulty by inserting thewords "which have not been entirely absorbed by thesuccessor State".

43. Lastly, it was necessary to harmonize the definitionof "succession of States" itself, which appeared in subpara-graph (6) of article 2, paragraph 1, with the new definitionof a "newly independent State". The co-sponsors had doneso by reverting to the notion of "competence for inter-national relations in respect of a particular territory",instead of that of "responsibility for the internationalrelations of territory". That proposal was of some value initself and might possibly be adopted independently of therest of the amendment. The co-sponsors had in factconsidered that the notion of "responsibility for theinternational relations of the territory" was not fecilitous,since it could only apply to a composite State, not to aunitary State. It could be said, for instance, that Switzer-land exercised responsibility for the international relationsof Geneva, because Geneva, as a member State of a FederalState, had international competence in certain matters,which was exercised for it by the Swiss Confederation. Butit could not be said that France assumed responsibility forinternational relations of Bordeaux, since Bordeaux, as amere part of French territory, had no international re-lations. The expression "competence for internationalrelations in respect of a particular territory" properlycovered both situations.

44. Mr. MUSEUX (France) explained that his delegationhad reached the same conclusions as the delegation ofSwitzerland, and that any slight differences in theirpositions related only to the place of the "clean slate"principle in classical international law. The French del-egation considered that in customary international law, the"clean slate" principle co-existed with the principle ofcontinuity and that both were found in practice. Francehad opted for a mixed system, applying the "clean slate"principle to treaties concluded intuitu personae and theprinciple of continuity to other treaties.

45. The system proposed by the InternationalCommission was clearly innovative, since it applied the"clean slate" principle to newly independent States and theprinciple of continuity to other cases of succession ofStates. Generally speaking, the French delegation approvedof that system, since the rules proposed had a unifying andsimplifying effect, which met a need in the satisfactoryconduct of international relations. Any separation of partof the territory of a State implied some incompatibilitybetween that part and the territory from which it separ-ated; it was therefore logical that the part thus separatedshould not be bound by the obligations applicable to theterritory from which it had separated. In the case of auniting of States, which, on the contrary, implied a desire


to come together, it was logical to presume the applicationof the principle of continuity. Although innovative, thesystem proposed by the International Law Commission wastherefore logical. What the authors of the amendment indocument A/CONF.80/C.l/L.41/Rev.l had against it, wasthat it treated differently two identical legal situations,which were referred to, respectively, in article 15 andarticle 33, paragraph 1. Why should a State which secedednot be considered as a newly independent State? Perhapsthe International Law Commission and some delegationsparticipating in the Conference were influenced by theexistence of two opposing principles embodied in theCharter of the United Nations: the principle of self-deter-mination and the principle of the territorial integrity ofStates. Perhaps it was desired to give preference to theprinciple of self-determination by providing for applicationof the "clean slate" rule to cases of decolonization, and itwas considered that cases of secession impaired the prin-ciple of territorial integrity. In his opinion, that positionwas untenable. The two principles were of equal value andmust both be fully respected. According to article 6, whichhad already been adopted, the future Convention wouldonly apply to the effects of a succession of States occurringin conformity with international law. Consequently, all thecases of succession covered by the Convention, whether ornot they occurred in the context of decolonization, wouldbe in conformity with the Charter and would constitute anapplication of the right to self-determination. Moreover, thedifference between cases of accession to independence andcases of secesssion was tenuous, as could be seen fromarticle 33, paragraph 3, under which secession occurring incircumstances essentially of the same character as thoseexisting in the case of the formation of a newly indepen-dent State was assimilated to the latter case. To overcomethe difficulties of application which that paragraph wasbound to raise, some delegations proposed that it should bementioned in the provision on the settlement of disputes.The French delegation believed that that would be a verybad method. It would be better to treat identical legalsituations in the same way and thus eliminate suchunnecessary difficulties.

46. The amendment submitted by Switzerland andFrance had the merits of simplifying the draft, of estab-lishing objective criteria and of applying a simple legalregime. It should be noted that the "clean slate" ruleadopted in the draft was not an absolute rule: it conferred aright to succeed and did not have the disadvantages of anabsolute rule, which would create a legal vacuum. Insubmitting their proposal the delegations of Switzerlandand France associated themselves with those States whichhad made comments on article 33 from both the theoreticaland the practical points of view, in particular, Bangladeshand Swaziland (A/CONF.80/5, pp. 255 and 259).

47. Since the amendment in document A/CONF.80/C>l/L.41/Rev.l departed from the system proposed by theinternational Law Commission, it might be feasible beforetaking up drafting problems, to discuss and take a decision°n the preliminary question whether all cases of separationshould be placed on the same footing.

48. Mr. TREVIRANUS (Federal Republic of Germany)introducing his delegation's amendment (A/CONF.80/C.l/L-52), said that it had a more limited scope than theamendment in document A/CONF.80/C.1./L.47, in whichhis country had proposed a new article 36 bis, and whichhad been withdrawn on 31 July 1978. In its newamendment, the Federal Republic of Germany had en-deavoured to tackle the question by a different approachfrom that adopted by France and Switzerland. Moreover, itwas only if the amendment proposed by the delegations ofthose two countries was not adopted that the amendmentof the Federal Republic of Germany should be considered.

49. That amendment was intended to establish a dis-tinction between multilateral and bilateral treaties and tointroduce into article 33 the notion of consent whichappeared in article 23. As proposed in the amendment byFrance and Switzerland, the exception referred to inarticle 33, paragraph 1 (b) would be retained; it could,indeed, be assumed that treaties applicable only to that partof the territory of the predecessor State which had becomea successor State had been concluded in the interests of thepopulation of that part of the territory, and that theyshould be kept in force.

50. If special treatment was not prescribed for bilateraltreaties, there would have to be general recourse to savingclauses. In drafting, article 30, paragraph 2 (c), the Inter-national Law Commission had recognized that a bilateraltreaty could be extended to the whole of the territory of asuccessor State only with the consent of the other Stateparty to the treaty. The reason why his delegation nowproposed to differentiate, by analogy to article 23, betweenbilateral and multilateral treaties was that in the case ofbilateral treaties it was necessary to take account of thelegitimate interest of the contracting parties in decidingwhether such treaties should continue in force. The identityof the parties to a bilateral treaty was a very importantfactor. Generally, a bilateral treaty was intended to regulatethe rights and obligations of the parties in their mutualrelations. Hence it could not be assumed that States whichhad agreed that a bilateral treaty should apply to a certainterritory would subsequently be willing to keep it in forcewith respect to that territory when it had become anintegral part of the territory of a new sovereign. That waswhere the idea of protecting the co-contractors came in.For them, it mattered little whether they had to deal witha newly independent State, or with a new State which hademerged under the conditions set out in Part IV of thedraft. In any case, they would wish their consent to berequired. If a State broke up in the circumstances set out inarticle 33, any party to a treaty concluded with thepredecessor State would be dealing with several States, andif it could not invoke a saving clause, it could not take adecision concerning the maintenance in force of the treaty.Since saving clauses did not provide a solution in every case,that procedure could not be relied on exclusively. In hisdelegation's view, the system would only be workable if itwas supplemented by some mechanism of the kind pro-posed by the United States of America.


51. The amendment submitted by his delegation wasintended to make article 33 more widely acceptable byproviding a more balanced solution and ensuring, as far aspossible, the stability of treaty relations.

52. Mr. NATHAN (Israel), speaking on a point of order,said that the amendment of the Federal Republic ofGermany should be considered only after the amendmentof France and Switzerland, as Mr. Treviranus himself hadsuggested.

53. Six Ian SINCLAIR (United Kingdom), supported byMr. RIBAKOV (Union of Soviet Socialist Republics), saidthat it would be an advantage for the Committee of theWhole to consider the two amendments together. It wasonly when it came to voting that the amendment of Franceand Switzerland should be taken first, because it was thefurthest removed from the original proposal.

54. Mr. GOROG (Hungary) said that in drafting article33, the International Law Commission had adopted theprinciple of ipso jure continuity of all treaties, bothbilateral and multilateral, in the event of the dissolution orseparation of States. He referred the Committee to para-graph 25 of the Commission's commentary to articles 33and 34 A/CONF.80/4, p. 105). The amendment proposedby the Federal Republic of Germany, on the other hand,provided that the principle of ipso jure continuity shouldapply only to multialteral treaties, bilateral treaties re-maining in force only if the successor State and the otherState party expressly so agreed, or by reason of theirconduct were to be considered as having so agreed. Hethought that distinction was unnecessary, becausearticle 33, paragraph 2, already provided for exceptions tothe principle of ipso jure continuity. That principle was inconformity with the interests of the States concerned, aswell as those of the international community. He remindedthe Committee of the case of his own country which, onthe termination of the AustrorHungarian Empire in 1918,had continued to consider itself bound by the treaties ofthe Dual Monarchy. He was therefore in favour of article 33as proposed by the International Law Commission and hecould accept neither the amendment of the FederalRepublic of Germany nor the part of the amendment ofFrance and Switzerland which called for the deletion ofparagraph 1 (a).

55. Mrs. THAKORE (India) noted that article 33, para-graph 1, stated the principle of ipso jure continuity oftreaty obligations in the event of separation of parts of aState, whether or not the predecessor State continued toexist. In her view, a distinction should be made betweencases in which the predecessor State continued to exist,that was to say cases of separation, and cases in which itceased to exist, namely, cases of dissolution. That was thecourse which had been followed in the draft on thesuccession of States in respect of matters other than

treaties. In cases of dissolution, the "clean-slate" ruleshould be applied more widely than in other cases.

56. Subject to those remarks, she approved of the presenttext of article 33 and of that part of the amendmentproposed by France and Switzerland which would permitwider application of the "clean-slate" principle in cases ofdissolution. She would speak later on the amendmentproposed by the Federal Republic of Germany.

57. Mr. RYBAKOV (Union of Soviet Socialist Republics)said he was not sure how to interpret the amendmentproposed by France and Switzerland. The draft was basedon the "clean-slate" principle which was set out in detail inarticles 15 to 29 already adopted by the conference, and byvirtue of which newly independent States were not bound,at the time of succession of States, to maintain in force orbecome parties to treaties, but had the right to do so if theywished. The amendment submitted by France and Switzer-land seemed calculated to deprive the successor State, inthe event of separation or dissolution, of the possibility ofestablishing, by a notification of succession, its status as aparty to treaties in force, with the exception of the treatiesmentioned in paragraph 1 (6), which was of limited scope.He could not believe that France and Switzerland reallyintended to re-open discussion on the "clean-slate" prin-ciple and he would like some clarification on that point.

58. Mr. GUTIERREZ EVIA (Mexico) referred to theposition taken by Mexico in 1975 in its written comments,namely, that the right to self-determination was applicableto all peoples and that all new States deserved equaltreatment, regardless of whether they had been colonialdependencies or not (A/CONF.80/5, p. 258). Paragraph 3of article 33, as drafted by the International Law Com-mission, raised very great difficulties, because it was opento question who would decide that the circumstances inwhich a part of the territory of a State separated from itand became a State were "essentially of the same characteras those existing in the case of the formation of a newlyindependent State", and that it was therefore appropriateto apply the "clean-slate" principle. He thought it would bebetter to apply the principle of self-determination in allcases. He supported the amendment submitted by Franceand Switzerland.

COMMUNICATION BY THE CHAIRMAN ON ARTICLES 22 bisAND 7.

59. The CHAIRMAN announced that the amendment toarticle 22 bis appearing in document A/CONF.80/C.l/L.28/Rev.l had been withdrawn. Document A/CONF.80/C.l/L.10/Rev.2, which contained an amendmentto article 7, withdrawn at the 38th meeting, had beenwithdrawn from circulation.


41st meeting - 2 August 1978 57

41st MEETINGWednesday, 2 August 1978, at 3.25 p. m.




ARTICLE 33 (Succession of States in cases of separation ofparts of a State)1 {continued')

1. The CHAIRMAN drew attention to a further amend-ment to article 33, submitted by Pakistan (A/CONF.80/C.1/L.54), and to the revised version of the Franco-Swissamendment (A/CONF.80/C.l/L.41/Rev.l).

2. Mr. POEGGEL (German Democratic Republic) saidthat, while in general his delegation supported article 33 asdrafted, it would like the Drafting Committee also to takeinto account the problems of the dissolution of a State.

3. Paragraph 23 of the International Law Commission'scommentary to articles 33 and 34 read "From a purelytheoretical point of view, there may be a distinctionbetween dissolution and separation of part of a State"(A/CONF.80/4, p. 104). Such distinctions were not onlytheoretical however. In the case of separation, the prede-cessor State continued to exist and usually retained itsidentity, although there might be a significant reduction interms of its population and its territory. The question ofsuccession in respect of treaties therefore arose only to avery limited extent since, in principle, a State would remaina party to the treaty in question. In the case of dissolution,on the other hand, the predecessor State disappearedcompletely and, consequently, so did the party to thetreaty too. As a result, different legal consequences ensued.Furthermore, dissolution was not to be regarded simply asthe sum of several separations.

4- To meet that point, his delegation wished to suggestthat a reference to dissolution be included in the titles ofPart IV and of article 33, and also in the body ofParagraph 1 of the article. That would make it clear thatarticle 33 dealt with two different but generally recognizedtypes of succession, namely, separation of part of a Stateand dissolution of a State. A further reason for includingsuch a reference was that articles 16 and 25 of the draft onsuccession of States in respect of matters other than treatiesdealt explicitly with the dissolution of a State. He trusted•hat his delegation's suggestion would be favourably con-sidered particularly bearing in mind the general agreementWithin the International Law Commission and at theConference that the questions of separation and dissolution

the amendments submitted, see 40th meeting, foot-note 9-

were closely interrelated and that it was necessary to be asconsistent as possible in the use of terms.

5. His delegation was unable to accept the amendmentsubmitted by the Federal Republic of Germany(A/CONF.80/C.1/L.52) for the reasons it had alreadystated in reference to the amendment submitted by thatdelegation to article 30 (A/CONF.80/C.1/L.45).

6. Mr. SHEIKH (Pakistan), introducing his delegation'samendment (A/CONF.80/C.1/L.54), said that it dealt witha situation which his own country had known and whichconcerned the problems that might arise in regard to therights and liabilities accruing under agreements enteredinto by the unitary State. The International Law Com-mission had rightly applied the "clean slate" principle inPart III of the draft convention, and the rule of "conti-nuity" in Part IV. Yet paragraph 3 of article 33 gave rise toan anomaly for, under its terms, a successor State formed incircumstances similar to those existing in the case of theformation of a newly independent State would be treatedon the same basis as the latter. Such a successor State wasnot a newly independent State, however, since it had notbeen a dependent territory so far as the conduct of itsinternational relations was concerned. Furthermore, thelegal philosophy behind the "clean slate" principle, as itapplied to a newly independent State, was that the peopleof such a State had never exercised their inalienable right toself-determination, and their will had not been ascertainedwhen treaty obligations had been entered into. That did notapply to the people of a State who had exercised such aright; nor could it be said of separation of part of theterritory of a State, even in circumstances similar to thoseexisting in the case of the formation of a newly indepen-dent State, that the will of the people had never beeninvolved when entering into treaty obligations.

7. Consequently, his delegation considered that, in casesof separation covered by paragraph 3, the principle ofcontinuity should apply only to the extent that, if thesuccessor State had derived any benefits under a treaty, itwould have the corresponding obligations, consistent withthe maxims aequum et bonum and res cum onere transit.

8. Mr. RITTER (Switzerland), referring to the questionraised by the Soviet representative at the 40th meeting, saidhe would like to explain that the main purpose of theFranco-Swiss amendment was to ensure that a singleregime, namely that laid down in articles 15-19 for newlyindependent States, would apply not only to those Statesbut also to new States other than newly independent Statesarising as a result of succession in the case of separation.

9. Mr. RASSOLKO (Byelorussian Soviet Socialist Re-public) said that his delegation supported the general rulelaid down in article 33, which would also cover localizedtreaties.

10. It did not favour the Franco-Swiss proposal to deleteparagraph 1 {a), for attention would then be concentratedon the narrower situation dealt with in paragraph 1 {b). Norwas it able to support the amendment submitted by theFederal Republic of Germany, the effect of which would be


to accord a special status to bilateral treaties. The substanceof that amendment was in any event very similar to thatsubmitted by the Federal Republic of Germany to ar-ticle 30. The latter had, however, been withdrawn, manydelegations being of the view that its terms were in conflictwith the general principles of international law and, inparticular, with the pacta sunt servanda rule. His delegationregarded it as absolutely essential to reflect clearly in thedraft convention the principle of the continuity of treatiesand therefore to retain article 33 as drafted. Paragraph 2 ofthe article provided for exceptions to that principle, andwould thus cover the point raised in the amendmentsubmitted by the Federal Republic of Germany.

11. Lastly, his delegation saw no reason to oppose theFranco-Swiss amendment to delete paragraph 3 of thearticle.

12. Mr. DOGAN (Turkey) said that, in his view, thedrafting of article 33 was obscure, and it was necessary torefer to the commentary to learn that it dealt with cases ofsuccession arising in the event of the separation ordissolution of a State. That point could perhaps be referredto the Drafting Committee.

13. As to the substance of the article, in his delegation'sview, a distinction had to be drawn between cases ofsuccession arising, on the one hand, in the event of thedissolution or separation of a State and, on the other, in theevent of the separation of part of the territory of a State.With regard to the former, the draft convention made itclear that, so far as cases of voluntary succession wereconcerned, stability of legal relationships was of paramountimportance and the principle of continuity should prevail.States which united voluntarily should not evade theirobligations under treaties entered into by the predecessorState. That applied equally to cases of separation anddissolution, as was borne out by international practice, forexample, by the case of the union and separation of Syriaand Egypt.

14. The same argument could not, however, be adducedwhen considering the separation of a part of the territory ofa State, and the reasoning which had led to the adoption ofthe "clean slate" principle was self-evident. Internationalpractice in the matter and particularly that of the OttomanEmpire, was abundant, but it sufficed to call to mind theseparation of Montenegro, Greece, Bulgaria, and Moldaviaand Wallachia. The territories which had separated from theOttoman Empire, having energetically resisted the notion ofcontinuity, had ultimately managed to put an end to theircommitments—commitments which had, in any event, beenimposed for reasons of a political rather than a legal nature.In those circumstances, his delegation failed to see whycases of succession which differed in character, and even inorigin, should be made subject to the rule of continuity. Itsaw no valid reason for not applying the "clean slate"principle to the separated part of a State. Indeed, asinternational practice showed, the reasons which appliedunder article 15 were equally applicable in that case.

15. His delegation fully supported the Franco-Swissmendment.

16. Mr. ROVINE (United States of America) said that, inhis delegation's view, article 33 accorded with the bulk ofinternational practice. Attention had been focused on theobligations arising out of treaty relationships, and rightlyso, but it was important not to overlook the rights whicharose out of those same relationships. States which hadentered into such relationships were entitled to rely onthose rights and the continuation of the treaty. That didnot apply, of course, where the other party or parties to thetreaty had had its terms imposed upon them, irrespective oftheir will. Consequently, the "clean slate" principle, whichwould apply to newly independent States under articles15-29, was entirely just and necessary. By the same token,however, rights freely accorded under a treaty should notbe cut off because one State united with another, underarticle 30, or separated into two or more parts, underarticle 33. The central question for the Conference's con-sideration, therefore, was why the right of reliance shoulddisappear.

17. There was the further question of the equitiesinvolved. If State A entered into treaty relationships with,say, 95 other nations, a rule that would cut off the rights ofall those nations when State A divided into two parts wouldcertainly not promote stability. Reference had been madeto the undeniable right to self-determination of States inthe case of separation and secession, but the large majorityof the nations of the world, which had entered into treatyrelationships, likewise had a right in the matter of thoserelationships to self-determination. It had also beensuggested that the "clean slate" principle should apply atleast to bilateral treaties because those treaties were moresensitive and were in a special category. But it was for thosevery reasons that the rights arising under such treatiesshould be maintained.

18. The presumptions provided for in paragraph 2 ofarticle 33, whereby in certain circumstances the rule laiddown in paragraph 1 would not apply, were entirely fair, ifthe rights of the vast majority of nations were comparedwith those of a single State which separated—a far moreunusual occurrence. The representative of the FederalRepublic of Germany had asked why the successor Stateshould be compelled, under article 33, to continue bilateraltreaty arrangements. He in turn, would ask why, under theterms of that same article, the vast bulk of nations shouldforgo their rights under such treaties.

19. It was true that paragraph 3 of the article gave rise tosome difficulties but it nonetheless afforded the mostreasonable approach in the circumstances and highlightedthe need for a dispute settlement procedure. The questionhad been raised as to who would decide whether theseparation was essentially of the same character as thatexisting in the case of the formation of a newly indepen-dent State. The answer was the parties themselves, in thefirst instance, although, if they failed to agree, they wouldperhaps have to resort to assistance from a third party.

20. Lastly, there was little difference in principle, in hisview, between article 30, which had already been adopted'and article 33. Both were concerned with the application fthe rule of continuity as a means of preserving the stat'


of treaty relationships and the international legal order. Forall those reasons, his delegation supported article 33 asdrafted by the International Law Commission, and wasopposed to the amendments submitted by France andSwitzerland and by the Federal Republic of Germany.

21. Mr. RYBAKOV (Union of Soviet Socialist Republics)said that his delegation supported in principle the Inter-national Law Commission's text of paragraphs 1 and 2 ofarticle 33, although it agreed with the representatives of theGerman Democratic Republic and Turkey that the languagerequired polishing by the Drafting Committee.

22. With regard to the amendment proposed by theFederal Republic of Germany, he endorsed the views of thoseother speakers who had found it unacceptable. It was anattempt to apply the "clean slate" principle to States otherthan newly independent States emerging from the processof decolonization, that is, to violate the idea underlying theInternational Law Commission text. His delegation was alsoopposed to the Franco/Swiss amendment since the deletionof paragraph 1, subparagraph (a) of article 33, which itproposed, would destroy the whole point of the article. Asituation could then arise in which, if States A and Bunited, the continuity rule would apply in respect ofexisting treaties in conformity with article 30, but if theyseparated, they would enjoy complete freedom.

23. With regard to paragraph 3 of article 33, the problem,as the Mexican representative2 had pointed out, wasuncertainty about the meaning of the phrase "in circum-stances which are essentially of the same character as thoseexisting in the case for the formation of a newly indepen-dent State". It appeared to constitute a deviation from thegeneral idea underlying the International Law Commission'stext which was otherwise well balanced. It was superfluousand might indeed prove dangerous if retained. It was ineffect establishing a second category of States, other thannewly independent States as defined in article 2, paragraph1 if), to which the "clean slate" principle was to be applied.It was clear from the International Law Commission'scommentary to the article that paragraph 3 might come tobe applied to a predecessor State continuing to exist after aseparation of some of its parts to which there would be nowish to extend the "clean slate" principle. The entire draftconvention had been based on the premise that there wereonly two alternatives: either a State was a newly indepen-dent State or it was not. Any other approach weakened thebasic concept of the draft and opened the door tomisinterpretations which no international court couldrectify.

24. He would suggest that further consideration be givento paragraph 3, perhaps by regional groups.

2S- Mr. FONT BLAZQUEZ (Spain) said that, while itwas more logical to apply the rule of continuity to the case°f dissolution of a union of States, that should not beextended to the very different case of separation of parts ofa State. Where the emergence of a new State following


separation was concerned, clearly only the "clean slate"principle should apply.

26. Paragraph 3 of article 33, provided for the appli-cation of that principle as an exception to the rule laiddown in paragraph 1, but, in his view, it was deficient inthree respects. In the first place, it did not accord withState practice, whereby the principle of continuity wasapplied to the dissolution of unions of States and the"clean slate" principle to that of typical cases of separation.Secondly, it was not realistic, since a State which came intobeing as a result of separation would not accept the rule ofcontinuity but would insist on the "clean slate" principle.Thirdly, it could lead to serious problems of interpretation,for an international court would have difficulty in deter-mining, on the basis of strictly legal criteria, whether thecircumstances in which a part of a State separated were thesame as those existing in the case of the formation of anewly independent State. He would only remind theConference of the Customs Union between Austria andGermany3 case which, in effect, had put an end to theadvisory activities of the Permanent Court of InternationalJustice. In that case, the Court had had to consider whetherthe customs unions between those two countries would"endanger the independence" of Austria—an expressionwhich had been the subject of much political, economicand legal debate. He would not like the International Courtof Justice, or indeed any other court, to have to solve theproblems that would result from the language used inparagraph 3 of article 33.

27. The United States representative, if he had under-stood him correctly, had argued that the rights acquired bythird States under treaties with the predecessor Stateshould be protected. In effect, that would mean dispensingentirely with the "clean slate" principle in the draftconvention and imposing on newly independent States therule of continuity. He was unable to agree on that point. Ingeneral, however, he shared the views expressed by theTurkish representative.

28. Sir Ian SINCLAIR (United Kingdom) said that Statepractice in cases of separation of parts of a State was largelyinconclusive, owing to the variety of circumstances underwhich such a separation might take place. The InternationalLaw Commission's commentary to articles 33 and 34 drewattention to the classical instances of dissolution of unionswhere the guiding principle had been that of continuity. Onthe other hand, in the case of the separation of parts of aState, with the predecessor State continuing to exist, therewas a tendency to adopt the "clean slate" rule. It had beensaid that a clearer distinction should be drawn between thetwo categories, but it was difficult to see how that might bedone and his delegation agreed with the observation inparagraph 25 of the International Law Commission's com-mentary on articles 33 and 34 that the infinite variety ofconstituted relationships and kinds of "union" rendered itinappropriate to make that element the basic test fordetermining whether treaties continued in force upon the

3 Customs Regime between Germany and Austria (Protocol ofMarch 19, 1931), P.C.I.J., Series A/B No. 41, p. 34.


dissolution of a State (A/CONF.80/4, p. 104). Indeed, itappeared that State practice was not a wholly reliable guideand the international community must have regard toprogressive development rather than codification in deter-mining the basic rule.

29. Neither the International Law Commission's draft ofarticle 33 nor the Franco/Swiss proposal constituted adeparture from existing law, but if accepted, the latterwould, as had been generally acknowledged, produce aradical change in the economy of the draft Convention as awhole. The obvious objection to the Franco/Swiss proposalwas that it equated two situations which were dissimilarboth with regard to terminology and to substance. In thedraft Convention, the newly independent State was definedin terms of the historical process of decolonization and alegal regime based on the "clean slate" rule had beenapplied to it. To extend that regime to cases of separationof parts of a State would result in further destabilizinginternational treaty relations. He would remind the pro-ponents of the amendment of the observation of a formerSupreme Court Justice of the United States that the life oflaw was not logic but experience, hi that light, a furtherbreach of the continuity rule was not required. If afederation broke up in the future, it would not beinappropriate for any resultant successor State, which hadhad a voice in the formulation of the foreign policy of thefederation, to continue to be bound by treaty relations.

30. Indeed, the Franco/Swiss amendment might bedeemed to encourage secessionist movements. The appli-cation of the "clean slate" rule should be reserved forspecial circumstances essentially the same as those existingin the case of the formation of a newly independent State.Like the Soviet representative, he had considerable doubtsabout the way in which the provisions of paragraph 3 mightbe applied. The concept was not in itself too difficult andexperience showed that circumstances similar to thoseattending the emergence of newly independent States mightoccur. However, the precise scope of the paragraph was notclear and if it was retained, a procedure for the settlementof disputes would be required.

31. Although there might be an objection to the amend-ment proposed by the Federal Republic of Germany on thegrounds that it qualified the principle of continuity, hisdelegation could support it, in recognition of the fact thatcircumstances might occur under which application of thecontinuity rule to bilateral treaties could create difficultiesand also as a compromise between the original text ofarticle 33 and the Franco/Swiss amendment.

32. His delegation had not had sufficient time to studythe Pakistan amendment to paragraph 3 and it thereforereserved the right to speak again.

33. Mr. TORNARITIS (Cyprus) said that his delegationsupported both the principle and the substance of article 33as it stood, but the wording was not always clear andshould be referred to the Drafting Committee. Part III ofthe draft dealt with newly independent States, as defined inarticle 2, to which the "clean slate" principle applied:Part IV dealt with the union or separation of other States

to which the continuity principle applied. When there was aseparation of territory to form a new State, other than anewly independent State, article 33 applied; all other caseswere covered by Part III of the draft. The difference wasobvious, although the language might need improvement.The Conference should be careful not to disturb the wisestructure of the draft by inserting amendments which,purporting to clarify it, might render it more obscure.

34. Mr. STUTTERHEIM (Netherlands) said that hisdelegation supported the International Law Commission'stext of paragraphs 1 and 2. As he had already stated in thediscussions on articles 16 and 30, his delegation was infavour of the continuity principle unless there werecompelling reasons to the contrary, such as in the case ofdecolonization.

35. Paragraph 3 was superfluous since, as the Sovietrepresentative had said, it established an undesirable thirdcategory of States which fell outside the definitionsestablished in article 2 and its application would give rise todifficulties. He therefore thought it should be deleted but,if it were retained, he shared the view of the UnitedKingdom representative that a procedure for the settlementof disputes was required.

36. His first reaction to the Pakistan amendment toparagraph 3 was that it would be difficult to define theword "benefits", and that he was therefore not disposed tosupport it.

37. Mr. ECONOMIDES (Greece) said that the draftconvention was treating as dissimilar two situations whichwere essentially the same: a State formed by the separationof parts of a State was to all extents and purposes newlyindependent and the discrimination whereby a newlyindependent State under article 15 was given more rightsthan a separated State under article 33 ran counter to theprinciple of the equality of States guaranteed by theCharter of the United Nations. The provisions of article 33could rightly be applied to the dissolution of a union ofcomposite States but were ill adapted to the case ofseparation. He supported the Franco-Swiss amendment.

38. Mr. NAKAGAWA (Japan) said he agreed with pre-vious speakers that the framework of the draft conventionhad been well structured and that its delicate balanceshould not be destroyed. The continuity rule, for whichmany precedents were cited in the International LawCommission's commentary to articles 33 and 34 shouldtherefore be retained in paragraph 1. Accordingly, hisdelegation was unable to support either the Franco-Swissamendment or the amendment of the Federal Republic ofGermany which would change the structure and harmonyof the convention, and might create new problems. How-ever, paragraph 3 in its present form was not satisfactoryand therefore some drafting improvement might be necess-ary.

39. Mr. ROVINE (United States of America), replying tothe Spanish representative's comment that the United Statesapproach to article 33 was calculated to eliminate the "cl^11


slate" principle altogether, said that the right of nations torely on treaty relationships assumed that they had beenfreely entered into by the other parties. In the case ofnon-self-governing territories and colonies on which treatyrelationships had been imposed, that was clearly not the caseand the "clean slate" rule was only equitable and just. So farfrom detracting from the "clean slate" principle, the UnitedStates attitude emphasized the reasons for accepting it.

40. The United Kingdom representative was probablyright in saying in support of the amendment proposed bythe Federal Republic of Germany that the maintenance ofthe continuity rule in respect of bilateral treaties mightcause difficulties. However, the non-maintenance of suchtreaties was even more likely to cause difficulty. It wasimpossible to have a uniformly satisfactory rule, but sinceall States entered into bilateral treaties under which theyacquired rights as well as obligations, he thought that thecontinuity rule should stand.

41. Mr. MARESCA (Italy) said that the arguments putforward by the proponents of the Franco-Swiss amendmenthad been impeccable in their logic: it was undeniable that aState emerging from an internal struggle was just as much anew State as a State born from decolonization. Butinternational law was based not only on logic but onhistory, political realities and the requirements of inter-national life. It was impossible to claim that when twoStates separated which, like many of the examples quotedin the International Law Commission's commentary to thearticle, had been joined for centuries and had formed linkswith other States, they were beginning a completely newexistence just like those emerging from decolonization.

42. The amendment submitted by the Federal Republicof Germany had the merit of distinguishing, in accordancewith international law, between bilateral and multilateraltreaties. Paragraph 2 of the International Law Commission'stext was both clear and logical but the same could not besaid of paragraph 3 which suddenly abandoned the conti-nuity principle and freed certain new States of any legalties. It should be deleted.

43. Mr. DIENG (Senegal) said he could not accept theview expressed by one speaker at the 40th meeting, that theright to self-determination was a mere political maxim. Ifany principle fell into the category defined by article 53 ofthe Vienna Convention on the Law of Treaties, it was that°f self-determination. The Commission had faithfully ob-served the principle of the progressive development of•nternational law by including two separate criteria in thematter.

^4. What put newly independent States into a category°r their own was that they had emerged as a result of the^colonization process; States having separated themselvesrorn larger territories were entirely different, and it would°e totally illogical to deny that difference. However,ecause the Convention provided for two different legaljuries for basically different matters, it was difficult forl e Senegalese delegation to support the amendment

Proposed by France and Switzerland. The part of a StateWhich separated itself had to some extent participated in

the formulation of international relations, which a newlyindependent State had not. The difference between a newand a newly independent State could not be denied,although the terminology was perhaps not ideal. TheFranco-Swiss amendment in fact challenged the spirit of thedraft Convention and, if accepted, would mean that manyaccepted elements would have to be revised.

45. The amendment proposed by the Federal Republic ofGermany would undoubtedly upset the balance of theConvention and was therefore inappropriate. He reservedthe right to comment later on, on the amendment proposedby Pakistan.

46. Paragraph 3 of article 33 raised serious problems andthe International Law Commission's wording would cer-tainly have to be improved. The Commission had undoubt-edly been attempting to cover the marginal case of a part ofa territory which had never accepted its position as a partof another, but had always demanded to be made separate,as a result of which it had always been treated as a colony.Unfortunately, as a result of its attempt, the Commissionhad lapsed into obscurity and it would now be better eitherto delete paragraph 3 entirely, or to replace it by somethingless confused.

47. Mrs. BOKOR-SZEGO (Hungary) said that from thestart of its work of codifying the succession of States, theCommission had maintained the theory of different treat-ment for newly independent States, and it was clear fromthe commentary that it had had in mind only those whichhad resulted from the disintegration of colonial systems,hence the reference to the principle of self-determination.She fully agreed that that principle was no longer a politicalone but an imperative of international law, which was whya clear distinction was made between the provisions ofParts 3 and 4 of the draft as a result.

48. The reasons for making a distinction between cat-egories of newly independent States was that those born ofthe colonial system had not been able to participate in theformulation of traditional international law, but had had itimposed on them. The Conference now had a duty to thinkof the future, and in considering the possible dissolution ofStates, the continuity of inter-State relations had to besafe-guarded and the stability of treaty relations maintainedin the interests of the community of States. If theCommittee pursued its present line of discussion, it mightend by questioning the work of the International LawCommission. It should therefore maintain that clear distinc-tion between the provisions of Parts 3 and 4 of the draft,and instruct the Drafting Committee to make the wordingof paragraph 3 of article 33 clearer.

49. Mrs. PEREZ VENERO (Panama) said she agreed withthe representative of Mexico that paragraph 3 of article 33as it stood raised difficulties of interpretation. Her del-egation's position on it would naturally have to becompatible with its foreign policy position of total supportfor the principle of self-determination of peoples, whetherof newly-formed or old-established States. That did notmean that Panama did not appreciate the serious conse-


quences of the problems which might arise from theseparation of part of the territory of a State; nor did itmean that Panama would encourage the separation of partof a State in order to enable it to avoid negotiations toclarify what treaty obligations had existed for it prior tothe separation; nor, finally, did it mean that Panama didnot respect the principle of continuity or not believe thatStates should respect their treaty obligations when therewas no dispute as to what they were.

50. On the contrary, Panama had shown by its co-oper-ation with such international organizations as the UnitedNations and the Organization of American States, itsrespect for treaty obligations, patience, integrity and desirefor the peaceful settlement of disputes. But where cases ofincompatibility of treaty obligations caused by the separ-ation of part of the territory of a State, as in the casereferred to in subparagraph 2 (b) could not be settled bynegotiation, Panama supported the "clean slate" principleand self-determination, which was endangered by para-graph 3 of article 33 as it stood.

51. Mr. BOUBACAR (Mali) said that as far as he wasconcerned there was no duality in article 33. The legalarguments put forward had carefully omitted to refer to theprinciples of self-determination as set forth in the UnitedNations Charter. Professor Virally, member of the Instituteof International Law, had shown that those principles wererules of jus cogens. If the sponsors of the amendmentsbelieved that the former colonial power was still part of acolonized territory, then there was duality, but if thatpower was no longer part of the decolonized territory therecould be no question of duality. He could not support theauthors of the amendments, in their efforts to weaken the"clean slate" principle. As the law was being changed at atime of new ideas and newly independent States, States inother words which were no longer dependent, paragraphs 1and 3 had to be retained. The fears of some delegationsregarding paragraph 3 were not justified. It could not bedenied that there were different forms of decolonization.The text as drafted by the International Law Commissionshould therefore be supported.

52. Mr. LANG (Austria) said that his delegation under-stood the priority given by the International Law Com-mission to the "clean slate" principle with respect to newlyindependent States; it was justified by the particularhistorical situation in which those countries had beencreated. Once a universal international community hadbeen established, however, in conformity with the prin-ciples of the United Nations Charter, particularly that ofthe sovereign equality of States, some measure of stabilitywas necessary for the maintenance of an international orderbeneficial to all its members, whence the need to give aproper place to the principle of continuity.

53. His delegation was in favour of deleting paragraph 3of article 33 since as it stood, it could only give rise todifficulties which would not easily be resolved by any ofthe recognized methods for the settlement of disputes. TheConference should try to lay down rules that would notcomplicate matters but facilitate the process of State

succession and clarify the position of treaties affected bysuccessions. The Austrian delegation could not support anyof the other amendments, although it fully appreciatedtheir merits.

54. Mr. DUCULESCU (Romania) said that in principlehis delegation favoured the legal solutions contained inarticle 33 as it stood. The text could doubtless beimproved, particularly to bring out the distinction betweenthe separation of unions of States and the secession ofunitary States where objective criteria were necessary to anappreciation of the legality of the situation.

55. The amendments proposed by France and Switzer-land and by the Federal Republic of Germany conflictedwith the principles of continuity and the stability ofinternational relations. Self-determination and secessionwere quite different situations in international law andshould not be put into the same category.

56. As far as paragraph 3 was concerned, he was of theopinion that its scope needed to be defined more clearly.The Conference had a duty to seek legal solutions guaran-teeing both the principle of self-determination and theterritorial integrity of States.

57. Mr. FERREIRA (Chile) said that paragraph 3 wassomewhat obscure as it stood and his delegation was stillanalysing it.

58. The amendment proposed by the Federal Republic ofGermany was positive only in that it made the necessarydistinction between bilateral and multilateral treaties in thecase of part of a State separating from a larger territory,when the predecessor State continued to exist, because theapplication of the principle of continuity to those casesmeant non-recognition of the principle of self-determination since, with the text as it stood, neither of thetwo States—the successor State nor the other State party-could object unilaterally to the continuity of the bilateraltreaty in question.

59. The CHAIRMAN suggested that the Committeepostpone its decision on article 33 until the following day,and begin its consideration of article 34.

60. Mr. KASASA-MUTATI (Zaire), on a point of order,said that further clarification of paragraph 3 of article 33was obviously needed. He suggested that some recognizedauthority in the matter be asked to give further explanationso as to avoid the necessity for more statements thefollowing day.

61. The CHAIRMAN invited the Chairman of the Inter-national Law Commission to make a statement at a time ofhis choosing.

62. Mr. SETTE CAMARA (Brazil), Chairman of theInternational Law Commission said that he would make astatement the following day on article 33 as a whole. TheExpert Consultant was better qualified to speak specificallyon paragraph 3.

42nd meeting - 3 August 1978 63

ARTICLE 34 (Position if a State continues after separationof part of its territory)4

63. Mrs. THAKORE (India) said that article 34 embodiedthe ipso jure continuity rule, subject to the usual excep-tions in respect of a State which continued to exist afterseparation of a part of its territory. Since it dealt withtreaties applicable to the predecessor State and not to thesuccessor State or States, article 34 was acceptable to theIndian delegation as it stood.

64. The amendment proposed by France and Switzerland(A/CONF.80/C.l/L.41/Rev.l) appeared to be conse-quential to their amendment to article 33, and could onlybe considered by the Drafting Committee, if the amend-ment proposed by France and Switzerland to article 33were adopted.


The following amendment was submitted: France and Switzer-land, A/CONF.80/C.l/L.41/Rev.l.

42nd MEETING

Thursday, 3 August 1978, at 10,25 a.m.


Consideration of the question of succession of States inrespect of treaties in accordance with resolutions 3496(XXX) and 31/18 adopted by the General Assembly onIS December 1975 and 24 November 1976


ARTICLE 33 (Succession of States in cases of separation ofparts of a State)1 {continued)

1- Mrs. DAHLERUP (Denmark) said that her delegationsupported paragraphs 1 and 2 of article 33, which guaran-teed continuity and stability in treaty relations betweenStates which had negotiated and accepted rights andobligations of their own free will. The amendment pro-posed by France and Switzerland (A/CONF.80/C.1/L4l/Rev.l) would have the advantage of establishing asingle rule, but in cases of separation, that rule might leadto an unnecessary legal vacuum, when a whole system ofjreely negotiated treaties already existed. After the adop-tion of article 30, the amendment proposed by France andwitzerland would lead to strange results. In the case of a

UrUon of two States, their treaty regimes would bemaintained, but if the new State thus formed subsequently

r°ke up, the same treaties which had been maintained in

a m e n d m e n t s submitted, see the 40th meeting, foot-

force would no longer be applicable, which would create alegal vaccum.

2. The Danish delegation approved of the idea underlyingparagraph 3, since the situation to which it applied mightarise in the future. Nevertheless, the Drafting Committeeshould try to improve the wording, in order to prevent theabuses to which it might give rise. In any case, provisionshould be made for some means of settling the disputeswhich might result from the not very precise description ofthe situations covered by paragraph 3.

3. Mr. MASUD (Pakistan), introducing his delegation'samendment (A/CONF.80/C.1/L.54), said that article 33,paragraph 3, had raised doubts as to the true nature of thesituations it dealt with. As a matter of fact, such situationsfell within the twilight zone between part III of the draft,which dealt with newly independent States and called forapplication of the "clean slate" principle and part IV,which dealt with the uniting and separation of States andcalled for application of the continuity principle. Somedelegations considered that there was no differencebetween the situations dealt with in article 33, paragraph 3,and those covered by article 15. It was nevertheless clearthat article 33, paragraph 3, did not deal with cases offormation of a newly independent State, but with cases inwhich part of the territory of a State separated from it andbecame a State in circumstances which were essentially ofthe same character. In the former situation, the right toself-determination was exercised, and the will of the peopleof the territory which had become independent had notbeen consulted in the treaty-making process. Other del-egations considered that it was not necessary to makeprovision for the situation referred to in article 33, para-graph 3, since all such situations were covered by para-graphs 1 and 2 of the article. But the reason why theInternational Law Commission had drafted paragraph 3was, precisely, to cover the category of situations whichwere similar to cases of formation of newly independentStates, but nevertheless distinct from those cases. That waswhy it had provided for application of the "clean slate"principle to those situations.

4. Nevertheless, the wording of paragraph 3 was notentirely satisfactory. First, the idea of "circumstanceswhich are essentially of the same character" was notprecise; secondly, according to that paragraph, situationswhich were not absolutely identical would have to betreated in the same way. What the Commission hadintended was, precisely, to give situations in the specialcategory referred to an intermediate position between casesfalling under part III of the draft and those falling underpart IV. And it was in order to give a separate status to thecases dealt with in paragraph 3 that Pakistan had submittedits amendment, which proposed restricting the applicationof the continuity principle to cases in which the successorState had "derived any benefits, directly or indirectly,under a treaty". That was the case when a State hadreceived loans from another State and the part of itsterritory which had benefited from the loans separatedfrom it; it was then natural that the successor State shouldassume the corresponding obligations.


5. Mr. SETTE CAMARA (Brazil) said that in spite of thestimulating debate to which the amendments to article 33had given rise, his delegation still favoured the InternationalLaw Commission's draft of that article. The amendment byFrance and Switzerland would alter the structure of thedraft and the respective spheres of application of the "cleanslate" and continuity principles. It would extend theapplication of the "clean-slate" rule to new States emergingfrom a uniting or a separation of States. In support of thatamendment, the Swiss representative had tried to base the"clean slate" rule on the exception of res inter olios acta,thus disregarding the importance of self-determination. Asthe new State had not participated in the conclusion of thetreaty, it would constitute a res inter alios acta, whichcould not bind the successor State. But the authors of theamendment appeared to forget the sovereign presence, inthe treaty-making process, of the predecessor State, whoselegacy of rights and obligations the successor State couldnot simply brush aside. The situation was completelydifferent when a newly independent State was formed,because the will of the dependent people had beencompletely ignored in the conclusion of treaties by thepredecessor State. That was why newly independent Statesshould not inherit any treaty concluded by the predecessorState. Such treaties were much more of a res inter alios actathan those contemplated in the amendment proposed byFrance and Switzerland.

6. Furthermore, their amendment assimilated cases ofuniting and separation of States to cases of formation ofnewly independent States, which would be possible only ifcolonial territories were regarded as part of the metropoli-tan territory, in accordance with the obsolete doctrine ofoverseas territories. In paragraphs 12 and 26 of itscommentary on articles 33 and 34 (A/CONF.80/4, pages102 and 105), the International Law Commission hademphasized the evolution of trends of thought on thatquestion, observing that before the era of the UnitedNations, colonies were considered as being in the fullestsense territories of the colonial Power. Hence, the amend-ment proposed by France and Switzerland would be aregression.

7. It was easier to follow the International Law Com-mission, which based the "clean slate" rule on the principleof self-determination—a principle that was undoubtedly aperemptory norm of contemporary international law. Itwas one thing to protect newly independent States fromthe burden of treaties to which they had not given theirconsent, but it was another to use that rule to brush asideall commitments of predecessor States in normal cases ofuniting or separation of States.

8. He could not support the amendment submitted bythe Federal Republic of Germany (A/CONF.80/C.1/L.52),either, because he did not see why bilateral treaties shouldbe excepted from the general rule of continuity unless theparties so agreed, either expressly or implicitly.

9. It was obvious that paragraph 3 of article 33 was asaving clause designed to cover all kinds of accession toindependence through decolonization. It purported to doaway with any possible obstacles to the application of the

"clean slate" principle where the formation of newlyindependent States had not strictly followed the pattern ofthe decolonization process. It was true, however, that thedrafting of the provision was somewhat obscure and couldbe improved by the Drafting Committee.

10. The amendment submitted by Pakistan was inspiredby highly commendable considerations. If the successorState had derived any benefit, directly or indirectly, undera treaty, it was only equitable that it should discharge thecorresponding obligations. Nevertheless, the text of para-graph 3 was already so heavy and obscure that theamendment proposed by Pakistan could hardly be added toit. Consequently, the Brazilian delegation could not supportthat amendment.

11. Mr. HAFNER (Austria), noting that the majority ofdelegations had difficulty in determining what situationswere covered by article 33, proposed that, at the appro-priate time, the proposals to delete paragraph 1 (a) andparagraph3, contained in the amendment submitted byFrance and Switzerland, should be put to the voteseparately.

12. Mr. NATHAN (Israel) said that the considerationswhich called for application of the continuity principle incases of uniting of States also called for its application incases of separation of parts of the territory of a State: the"clean slate" rule was no more applicable in one case thanin the other. If that rule was excluded from article 30 onthe uniting of States, there was no reason for its specialapplication to bilateral treaties under article 33. Thereasons advanced by the International Law Commission insupport of the special regime established in article 23 fornewly independent States were not valid in the case ofseparation of parts of a State. Why should not thecontinuity principle also apply in the case of article 33 andof article 30?

13. It was necessary to maintain paragraph 3 of article33, because it dealt with situations which were not coveredby part III of the draft, relating to newly independentStates. In fact, part III dealt only with newly independentStates as defined in article 2, paragraph 1 (f). A newlyindependent State meant a successor State the territory ofwhich immediately before the date of succession of Stateswas a dependent territory for the international relations ofwhich the predecessor State was responsible. But paia'graph 3 of article 33 applied to the case in which part ofthe territory of a State separated from it, not to the case inwhich a whole territory acceded to independence.

14. It seemed that paragraph 3 of article 33 provided forcases of "revolutionary" separation of part of the territoryof a State, involving a clean break, whereas paragraphcovered cases of "evolutionary" separation. In both cases,new States were formed, but it was only in the former casethat a newly independent State within the meaning of thedraft was born. It might be that the two cases called f°r

different solutions: it would be interesting to have tnopinion of the Expert Consultant on that point.


15. Mr. BJORK (Sweden) said that his delegation sup-ported the International Law Commission's draft ofarticle 33. It could hardly be changed without upsetting thebalance of the future Convention. Of course, the appli-cation of the article and other related articles might giverise to difficulties, particularly article 33, paragraph 3,which introduced an intermediate category on which theremight be conflicting views. That emphasized the need tosupplement the International Law Commission's draft byappropriate rules on the settlement of disputes. In thosecircumstances, his delegation was unable to support any ofthe amendments to article 33.

16. Mr. FLATLA (Norway) supported paragraphs 1 and2 of article 33, as drafted by the International LawCommission. On the other hand, he thought it would bepreferable to delete paragraph 3, which raised certaindifficulties. Like other delegations, his delegation doubtedwhether it was desirable to introduce a new category ofStates, having regard to the element of subjectivity in-volved. But before taking a final position on the question,he would be interested to hear the opinion of theAfro-Asian group. If the Committee adopted paragraph 3, itwould be essential to lay down a procedure for thesettlement of disputes.

17. With regard to the amendment submitted by Franceand Switzerland, he was reluctant to embark on a debate ona proposal which introduced such important changes in thedraft article. The extension of the "clean slate" principlewould not contribute in any way to the stability of treatyrelations in general. The amendment submitted by theFederal Republic of Germany might disturb the balance ofthe draft and consequently his delegation had difficulty insupporting it. Finally, it could not support the Pakistanamendment, because it believed that it would be preferableto delete paragraph 3 entirely.

18. Mr. PfiREZ CHIRIBOGA (Venezuela) said that tothe logical arguments and examples drawn from Statepractice which had been advanced for or against theamendment by France and Switzerland, his delegationwished to add arguments based on justice, legal consistencyand equity, which militated against that amendment.Stressing that the comments made by his delegation duringthe discussion on the part of the draft now underconsideration were intended to facilitate the integration ofStates, not to encourage their disintegration, he observedthat the International Law Commission had decided tomake a distinction between the case of newly independentStates and that of States emerging from a separation towhich different rules applied. But it was difficult to define^1 the cases which had occurred or might occur in thefuture and to consider all the possible situations in a spherewhich was evolving as fast as succession of States. Perhapsthe International Law Commission's commentary (A/CONF.80/4, articles 33 and 34, p. 101, para. 8), explainedhe doubts of certain delegations about the advisability ofstaining paragraph 3, which seemed to them not to fit into|J|e structure of the draft. But in his delegation's opinion,"^ Committee should follow the principle of applying the

rule to the same situation. The principles of justice

and equity justified the adoption of an exception clauseapplicable to cases of separation in circumstances whichwere essentially of the same character as those existing inthe case of the formation of a newly independent State.Indeed, it would be unjust to apply to a State emerging insuch circumstances different rules from those applicable tonewly independent States. The fact remained, however,that the wording of paragraph 3 required improvement tomake it clearer.

19. There remained the question who would determinethe character of the circumstances in which a State accededto independence. His delegation believed that the Com-mittee should rely first on common sense, then on themethods of settling disputes established by internationallaw, first and foremost through direct negotiation betweenthe parties, which should produce good results in most cases.

20. Finally, for the reasons already given by otherdelegations, his delegation could not support the amend-ment submitted by the Federal Republic of Germany. Onthe other hand, the Pakistan amendment set out veryinteresting principles, which should be applied in one wayor another in the draft.

21. Mr. KOH (Singapore), describing the particular situ-ation of his country, reminded the Committee that at thetime of decolonization in 1963, Singapore had united withMalaysia, from which it had separated two years later. Upto 1965, when it became an independent State, Singaporehad never been empowered to conclude treaties. Asindicated in paragraph 18 of the International Law Com-mission's commentary to draft articles 33 and 34 (A/CONF.80/4, pp. 103 and 104), Singapore had applied the"clean slate" principle on becoming an independent State.His delegation understood the wording of paragraph 3 ofdraft article 33 where it referred to "circumstances whichare essentially of the same character as those existing in thecase of the formation of a newly independent State", to besufficiently flexible to cover the case of Singapore. Hence itconsidered that the deletion of that paragraph would leavea serious gap in the draft.

22. Mr. GAWLEY (Ireland) supported paragraphs 1 and 2of article 33 as drafted by the International Law Com-mission. Paragraph 1 rightly applied the rule of continuityin treaty relations to successor States which, beforeseparating from the predecessor State, had participatedfully in negotiating and concluding its treaties. His del-egation was unable to support the amendment submittedby France and Switzerland, as it would make for uncer-tainty in treaty relations and would release from theirtreaty obligations States which had been able to expresstheir will before the conclusion of the treaties binding thepredecessor State. The Drafting Committee should revis'ethe wording of paragraph 3 of the article.

23. Mr. MUDHO (Kenya) supported the text drafted bythe International Law Commission, but shared the concernexpressed by some delegations about the wording ofparagraph 3. He could not support the amendment sub-mitted by France and Switzerland, which eliminated the


distinction made by the International Law Commissionbetween the general case covered by paragraph 1 and aseparation of States taking place in circumstances similar tothose existing in the case of formation of a newlyindependent State. The amendment proposed by theFederal Republic of Germany was also unacceptable to hisdelegation, which saw no reason to make a distinctionbetween bilateral and multilateral treaties. Lastly, hisdelegation considered that the Pakistan amendment couldbe regarded as a drafting suggestion.

24. Mr. DOGAN (Turkey), recounting Turkey's ex-perience in the matter of the separation of States, said hewould take first of all the case of Serbia, which had beengranted independence in 1878. Serbia was to have emergedinto the international community by the application of the"clean slate" principle, except for the capitulary obligationscontracted by the Ottoman empire towards EuropeanStates. In practice, however, Serbia had rendered theperformance of those obligations completely inoperative.At the Congress of Berlin, Chancellor Bismarck, thePresident of the Congress, had made it clear that, in hisview, in case of secession, one of the principles of publicinternational law was that a part of a territory could notevade the obligations of the predecessor State in the eventof its accession to independence. The Turkish delegation,however, did not share that view and believed in theexistence of a new international society.

25. The case of Ireland and Turkey also reflected theconsensus of the international community with regard tothe consequences which might ensue from the accession toindependence of a new State. Indeed, just as Ireland haddone with the United Kingdom, Turkey had categoricallyrefused to be cound by the treaties of the Ottoman Empireand the Treaty of Lausanne2 contained provisions to thateffect.

26. It was that spirit which had inspired and evenaccelerated the decolonization process. How then couldStates which had achieved independence after many yearsof struggle be refused the benefit of the "clean slate" rule?Whether a State achieved independence as a result ofdecolonization or by any other means, it was guided by thewish to live in independence.

27. Furthermore the Turkish delegation could not sup-port the arguments put forward by the representative ofHungary, for whom the distinction between decolonizationand the other means of achieving independence lay in thefact that the decolonized countries had not participated inthe preparation of the treaties of the predecessor State. Butthe Greeks had not participated in the preparation of thetreaties concluded by the Ottoman Empire, any more thanSerbia, Ireland, Romania, Montenegro, and Bulgaria hadparticipated in the preparation of the treaties concluded bytheir predecessor States. The Turkish delegation did notsee why a State which became independent by separatingfrom another State should not be subject to the same legal

2 Treaty of Peace signed at Lausanne July 24, 1923 League ofNations. Treaty Series, vol. XXVIII, p. 11.

regime as a State which emerged as a result of decoloniz-ation.

28. The Turkish delegation therefore considered thatparagraphs 1 and 2 of the draft article under considerationshould be retained as they stood, and that paragraph 3should be reconsidered in the light of the amendment byFrance and Switzerland.

29. He supported the proposal by the representative ofAustria to put the article to the vote paragraph byparagraph.

30. Mr. FARAHAT (Qatar) said that the basic formu-lation of article 33 by the International Law Commissionwas reasonable and well balanced and could be retained. Itestablished the rule of ipso jure continuity, therebycontributing to the stability of international treaty re-lations, and made a distinction between the "clean slate"principle applicable to newly independent States and theprinciple of continuity applicable to successor Statesemerging as a result of separation. He could notsupport the amendment by France and Switzerland whichput newly independent States into the same category asthose which had become independent as a result ofseparation. Nor could he support the amendment by theFederal Republic of Germany for, in his opinion, multi-lateral treaties were as important as bilateral treaties. ThePakistan amendment embodied a very useful idea but it wasalready covered in the International Law Commission'sformulation. However, his delegation had no objection toits being considered by the Drafting Committee.

31. Mr. CASTREN (Finland) said that his delegation wasprepared to support article 33 as drafted by the Inter-national Law Commission, although it was not completelysatisfactory, since it dealt with the dissolution of a Stateand the separation of parts of the territory of a State in thesame way; paragraphs 2 and 3 fortunately contained severalreservations which slightly modified the tone of the draftarticle. His delegation could not, therefore, agree to thedeletion of paragraph 3, nor could it accept the otheramendments, which though they had some merit, also had anumber of drawbacks.

32. Mr. SCOTLAND (Guyana) said that in article 33 theInternational Law Commission had had two cases in mind,which were different from the cases covered by article 14;namely, the case of succession resulting from the separationof one or more parts of the territory of a State, where thepredecessor State continued to exist, and succession re-sulting from the dissolution or disappearance of a State.The International Law Commission had rightly provided inparagraph 1 (a) that new States emerging as a result of aseparation of territory should assume the obligationscontracted by the predecessor State and applicable to theirrespective territory before the separation. On the otherhand, it was assumed, ex contrario, in paragraph 1 (b) &&the parts of the territory of a State which separated from itto form one or more independent States might be free ocertain treaty obligations contracted by that State if u^ywere applicable solely to the part of the territory which had


not separated. It would seem logical for the predecessorState, which continued to exist after separation of part ofits territory, to continue to discharge its treaty obligations,in so far as they were not rendered impossible ofperformance, as provided for in articles 61 and 62 of theVienna Convention on the Law of Treaties. It was not onlythe existence of treaty obligations between the predecessorState and third States which determined the obligations tobe inherited by the successor State, but also the fact thatthe obligations under that treaty fell to be discharged bythe predecessor State in respect of the particular part of itsterritory which had acceded to independence. The del-egation of Guyana considered that the way in which theprinciple pacta sunt servanda was expressed in paragraph 1of the International Law Commission's text was satis-factory.

33. As to paragraph 2, his delegation endorsed theprinciple of consent stated in subparagraph (a), whichoffered an alternative to the rule in paragraph 1; on theother hand it was not altogether certain of the validity ofsubparagraph (b). That provision was similar to that em-ployed in the case of newly independent States. But, giventhe diversity of political evolution, social outlook andoft-times the absence of geographical contiguity of manyformer colonies to the predecessor State, the provisionappeared justifiable in that instance. In the case of theseparation of a part of a territory, which from the examplesgiven in the International Law Commission's commentaryreferred largely to separation of a part physically united tothe whole territory of the predecessor State, the situationwas different. His delegation had sought without success tofind an example which would show that subparagraph (a)would not meet a new situation resulting from theemergence as a new State of the part of the territory towhich a treaty had sole application. That subparagraph hadthe advantage of placing both categories of States—thesuccessor State or States and third States parties to thetreaty—on an equal footing. While he did not wish tosubmit a formal amendment, he wondered whether sub-paragraph (a) would not be sufficient to cover all the casesthat might arise and whether the point should not be givenfurther consideration.

34. Paragraph 3 of article 33 referred to the case in whicha part of the territory of a State separated from it andbecame a new State in circumstances different from thosecovered by paragraph 1, and having essentially the samecharacteristics as those contemplated in part III of thedraft. Those circumstances had not been described ordefined in the draft, and the International Law Commissionmerely said that the provisions of part III would apply insuch a case. It was, in fact, impossible to define suchcircumstances, for there were territories which were still ina classical colonial situation and did not have the faculty tomake treaties or to participate in the treaty-making process;and there were others which were not colonies and had noseParate international personality, but which neverthelesshad the faculty to participate in the treaty-making process^d to which a treaty could not be applied without theirconsent. The circumstances in which those territoriesacceded to independence were purely hypothetical, and in

the absence of objective legal criteria for determining theexistence of circumstances which could place a successorState in the category covered by part III of the draft, he didnot see how the possibility of recourse to procedures forthe settlement of disputes, other than the procedure ofnegotiation employed by States in the exercise of theirsovereignty, could be of any assistance in the case coveredby paragraph 3. The answer to the question whether a Statehad been formed "in circumstances which are essentially ofthe same character as those existing in the case of theformation of a newly independent State" might well'bedecisive for the future existence of that State, and hisdelegation did not think that any new State wouldvoluntarily submit such a question to arbitration by thirdparties. Whereas all States would assert the right to declaretheir own status, the procedure for settlement of disputessuggested by some delegations in connexion with article 33,paragraph 3, appeared to presume different conduct on thepart of the new State. The circumstances in which Statescoming under part III of the draft emerged were verydiverse, and it could not have been the intention of theauthors of paragraph 3 that only some of those circum-stances should be taken into account in deciding whether asuccessor State fell into the category of newly independentStates or not. His delegation therefore considered that theapparent ambiguity of article 33, paragraph 3, was the bestformula that the Commission could devise, given the varietyof circumstances in which a part of the territory of a Statecould become a new State.

35. The effect of the amendment proposed by Franceand Switzerland was to disregard the situation of theterritory before its accession to independence and to accordthe same treatment, at the international level, to territorieswhich had had different faculties with regard to treaty-making. His delegation favoured equal treatment for trueequals, but where as in the present case there existedinequality among the territories in question, that inequalitymilitated against the granting of equal treatment. Itconsidered, moreover, that the principle of consent was thecentral point of the treatment accorded to newly indepen-dent States in part III of the draft, and that the intro-duction of a different principle, such as that contained inthe amendment proposed by France and Switzerland,would weaken that part of the draft and diminish itscoherence. His delegation was willing, however, to considerthe definition of the expression "newly independent State"proposed by France and Switzerland to see whether thenotion of replacement "in the exercise of competence forinternational relations" could not improve the text ofarticle 2, paragraph 1 (/). In that connexion he remindedthe Committee that in the statement made by his del-egation on article 2, at the 1977 session, his delegation hadsaid that it might be more appropriate to refer to"a replacement in the exercise of competence for theinternational relations of the territory concerned".3

Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties, vol. I. Summary records ofthe plenary meetings and of the meetings of the Committee of theWhole (United Nations publication, Sales No. E.78.V.8) p. 43,5th meeting, paia. 35.


36. He shared the view of the Federal Republic ofGermany that bilateral treaties were important and shouldbe maintained, but he thought the same applied to alltreaties and that the same importance should be attached toall of them, as was done in part IV of the draft. Heconsidered that paragraph 2 (a) of article 33 already tookaccount of the principle of consent, on which the main-tenance of a bilateral treaty was based, and that paragraph2 (b) took account of all contingencies. Hence he was notconvinced of the need for the amendment proposed by theFederal Republic of Germany and was not prepared tosupport it.

37. The amendment submitted by Pakistan emphasizedin his delegation's view the difference between the case ofseparation of parts of a State, referred to in article 33, andthe case of newly independent States dealt with in part IIIof the draft. But he did not think that it could ensure thatthe successor State would respect treaty obligations morestrictly than in the context of normal treaty practice.Consequently, he would not support that amendmenteither.

38. Mr. ABOU-ALI (Egypt) supported paragraphs 1 and2 of article 33 as submitted by the International LawCommission, which emphasized the principle of continuity.Paragraph 1 stressed the continuity of treaty relations inregard to the territory to which the treaty applied. He didnot understand the reason for the amendment by Franceand Switzerland which deleted subparagraph (a) of para-graph 1 while retaining subparagraph (ft), since the purposeof those two subparagraphs was, precisely, to establish alink between the principle of continuity and the territorialscope of a treaty. In his opinion it was essential to retainparagraph 1 (a), which took account of the idea expressedin the Pakistan amendment.

39. Paragraph 3 departed from the principle of con-tinuity by introducing a more flexible but ambiguousprovision, which could give rise to different interpretationsand cause conflicts. He was therefore in favour of deletingit, as proposed by the representatives of France andSwitzerland. He could not support the amendment sub-mitted by the Federal Republic of Germany, because theVienna Convention on the Law of Treaties made nodistinction between bilateral and multilateral treaties, andhe saw no reason to do so in the present Convention.

40. Mr. KOROMA (Sierra Leone) said that the newlyindependent African States were in favour of maintainingan equitable international legal order, but they foundunacceptable the continuation of treaties which had beenimposed on them and were incompatible with their nationalinterests. They were also determined to maintain theirunity and their territorial integrity.

41. In his opinion, the process of decolonization couldnot be equated to the process of separation of States whichwere already independent. Those were two quite differentprocesses and to equate them would be to deny the successof decolonization. His delegation therefore supportedarticle 33.

42. The amendment proposed by France and Switzerlandwas, in his opinion, an attempt to resuscitate the theory ofcompetence for international relations, which had recentlybeen rejected by the International Court of Justice. But thecolonial situation could not be reduced to a mere exerciseof competence. Consequently, he could not accept thedefinition of the expression "newly independent State"proposed by France and Switzerland in their amendment toarticle 2, paragraph 1 (f).

43. With regard to article 33, paragraph 3, he could notagree that the circumstances referred to in that paragraphcould be assimilated to those existing in the case offormation of a newly independent State, for to supportthat thesis would be to degrade the process of decoloniz-ation. He therefore considered that paragraph 3 requiredfurther consideration.

44. Mr. RITTER (Switzerland) observed that, whilerecognizing the undeniable logic of the proposal putforward by France and Switzerland, several of the del-egations which had opposed it had emphasized the essentialdifference which existed, in their opinion, between newlyindependent States, as defined in the draft, and other newStates. They had criticized the amendment submitted byFrance and Switzerland on the ground that it reduced thescope of the important historical event of decolonizationby placing the situation of a decolonized State on the samelegal footing as that of any other new State. He was wellaware of the considerable importance of the process ofdecolonization, but the future Convention would not applyto existing newly independent States, only to States whichbecame independent in the future. The object of theConference was not, indeed, to codify completed decol-onization. While some decolonization remained to beaccomplished, there was no denying that the greater part ofit was done, and that the cases of separation which wouldoccur in future would follow a pattern which was at presentimpossible to foresee. It was therefore necessary to seek alegal criterion by which to distinguish one situation fromthe other, since the historical fact of decolonization wasnot a criterion in itself, and reference to the past could notconstitute a criterion for the future.

45. The criterion which had been proposed for dis-tinguishing between the two categories of new States wasthat of participation in the management of affairs, inparticular foreign policy, which was supposed to have beenpermitted to peoples which separated from a State, but notto colonial populations. He himself was surprised that itcould be maintained that non-colonial peoples whichseparated from a State had participated in the conduct ofthat State's foreign policy. As the representative of Turkeyhad very rightly observed, citing examples from the historyof his own country, it was impossible to claim, for examplethat the Greeks had participated in the conduct of theforeign policy of the Ottoman Empire. It was equallyimpossible to claim that the Poles, up to 1918, had takenpart in the deciding of foreign policy of the Russian EmpireIn any case, he thought it was impossible to reply for thosepeople and even more difficult to answer for the future.For how could it be known whether peoples whicn


separated from a State in the future under conditionsimpossible to foresee, would have had the right toparticipate in conducting the foreign affairs of that State?In any event, one thing was certain: whatever their realsituation had been, those peoples would claim, rightly orwrongly, that they had not had the right of participation, inorder to justify their separatist movement. To base theconvention on such a criterion would thus certainly giverise to disputes, for if two categories of new States weredistinguished, it could be foreseen that the States which fellinto the second category would claim to be in the first.

46. Some delegations had criticized the co-sponsors ofthe amendment, submitted by France and Switzerland, fordown-grading the principle of decolonization by making itinto a political maxim. There was nothing pejorative aboutthe expression "political maxim" however, since politicalprinciples were the motive force of history. Those prin-ciples, which had been unknown a century ago, hadsubsequently been supported by -an advanced minority andfinally accepted by everyone. The principle of self-deter-mination had changed the face of the world in 30 years,whereas legal principles, such as pacta sunt servanda and resinter alios acta, had changed absolutely nothing.

47. The delegations of France and Switzerland hadsought to remedy a paradoxical situation which consisted inattaching the "clean slate" principle to the principle ofself-determination and then confining its exercise to a singlecategory of new States. It was because they wished the"clean slate" rule to be applied without discrimination thatthe authors of the amendment had looked for a legal, ratherthan a political basis. There was indeed another principlewhich was no less respected than that of self-determination;the principle of equality of States; and it was that principlewhich should govern the codification of succession ofStates in respect of treaties.

48. It was true that a political principle became a legalprinciple when it was no longer contested by anyone, andthat was what had happened to the principle of self-deter-mination. But the best means of proving that it had becomea real legal principle, was to apply it to all States withoutdiscrimination, whereas those who opposed the amendmentsubmitted by France and Switzerland, both proclaimed thelegal nature of the principle and restricted its application toonly one class of new States.

49. There was one point on which the delegations ofFrance and Switzerland appreciated the criticisms addressedto them, because those criticisms coincided with the doubtsthey had felt themselves when formulating their proposal:that point related to unions of States. They would havePreferred, indeed, to distinguish between the case ofdissolution of a union of States and other cases ofseparation. But they had been unable to do better than theInternational Law Commission itself, which, as indicated inits commentary, had found it impossible to deal with cases°f unions of States because of their diversity. If it wasnevertheless possible to complete their amendment with aProposal which gave satisfaction on that point, the co-authors would be the first to rejoice. There was, however,°ne point which should give satisfaction to those who

shared their concern, namely, that article 33 applied to theseparation of parts of a single State. Consequently, as soonas an examination of the political or constitutional situ-ation showed that the dissolved entity had been in factmade up of a number of States, the article would not applyand each State which separated would retain the treaties ithad concluded. That situation corresponded to the onenoted by the International Law Commission in paragraph 3of its commentary to articles 33 and 34 (A/CONF.80/4,p. 100), in the case of the separation of Norway andSweden, which appeared to have been recognized as havingseparate international personalities during their union. Itwas indeed obvious that, if two or more States separated,each one retained the commitments into which it hadentered.

50. Apart from a minority of States, most of the Statesof the international community—whether European, LatinAmerican or African—had at one time or another separatedfrom another State and benefited from the "clean slate"rule. But the international community, nearly all themembers of which had enjoyed the faculty, now wished todeny it to new States in the future. In the statement he hadmade at the 41st meeting, the representative of the UnitedStates had tried to justify that position by invoking thestability of international relations. But those who sup-ported that position seemed to be attempting to bindcertain new States against their will and against theirinterests. For the stability of treaty relations was alreadysufficiently safeguarded by the free play of the consent ofStates. The proof of that could be seen in the fact that allthe international treaties, without exception, whichSwitzerland had concluded with France and the UnitedKingdom, and which those two Powers had applied tocolonial territories, had been maintained in force afterdecolonization by free agreement between the newlyindependent States and Switzerland, because there was acommon interest. In his view, that example clearly showedthat the Conference could rely on the wisdom of States,which knew where their interests lay. If it was not satisfiedwith the consent of States and was trying to impose onthem a solution prescribed in advance, that was becausethere was a desire in some quarters to bind States againsttheir interests and against their will. Moreover, thatprocedure was doubly ineffective; it was legally ineffectivebecause new States, not being parties to the Convention,would not be bound by such a provision; and it waspolitically ineffective because even if some means werefound to bind States against their will, they would rebelagainst any such attempt.

51. The cause defended by France and Switzerland wasthat of the independence, sovereignty and equality ofStates. They were in favour of international obligationsbased on the consent of States, but against internationalobligations imposed on States from outside by internationalinstruments in which they did not participate.

52. Mr. KASASA-MUTATI (Zaire) said he wished tomake a few comments on article 33 while awaiting a replyfrom the Expert Consultant to the question he had put atthe 41st meeting. In his opinion, the reason why the


International Law Commission had proposed paragraph 3of article 33 was that it had wished to provide for everypossible situation that might arise out of a separation ofStates, in order to prevent the occurrence of what therepresentative of Brazil had called a "legal vaccum". As theplenipotentiary representatives of Governments, partici-pants in the Conference were reluctant to endorse aprinciple that might be taken to mean that any populationgroup could separate from a State, which would create adifficult situation, particularly in the case of newly inde-pendent States. He therefore proposed that the Committeeof the Whole should refer article 33 to the DraftingCommittee and defer a decision on paragraph 3 of thatarticle until the meaning of the words "circumstanceswhich are essentially of the same character as those existingin the case of the formation of a newly independent State"had been clarified and a definition of the expression "newlyindependent State" had been adopted in article 2, para-graph 1 (f). He asked that if the Commission decided tovote on article 33 each paragraph should be put to the voteseparately.

53. Mr. BRECKENRIDGE (Sri Lanka) said thatalthough, in paragraph 25 of its commentary to articles 33and 34 (A/CONF.80/4, p. 105) cited by the UnitedKingdom representative at the 41st meeting, the Inter-national Law Commission had concluded that the principleof continuity should be applied equally to cases ofseparation and cases of dissolution, it was clear from theanalysis of State practice in paragraphs 26 and 27 of thecommentary (ibid., p. 105) that there was a fundamentaldifference between the two cases, and that in the case ofseparation the successor State generally tried to secureapplication of the "clean slate" principle. Moreover, thatwas what had led the International Law Commission topropose paragraph3 of article 33. Although its intentionhad been good, that paragraph nevertheless raised diffi-culties, as the representative of Brazil, himself a member ofthe International Law Commission, had acknowledged.

54. The representative of Switzerland wished to place onthe same footing the formation of a newly independentState, which was connected with the process of decoloniz-ation, and the emergence of a new State as a result of aseparation. The delegation of Sri Lanka considered thatthose two situations were fundamentally different andcould not be assimilated to one another. But it was not byrevising the definition of a newly independent State, asproposed by France and Switzerland, that the problemcould be solved. Although it was tme that the Conferencehad to carry out codification and progressive developmentof international law, as the representative of Switzerlandhad said, it would nevertheless have been logical to examineand regulate the problem of States which seceded by virtueof the principle of self-determination in the context ofpart III of the draft, which dealt with newly independentStates. It was not in the context of article 33, which dealtwith quite other matters, that self-determination andterritorial integrity should be discussed. The Committeehad not enough time left to go into the substance of thequestion; but it had to take a decision. To refer the article

to the Drafting Committee, as the representative of Zairehad suggested, would only add to the confusion. Besides,the amendment submitted by Pakistan could not be treatedas a mere drafting amendment. The best course would befor the Committee to suspend consideration of article 33for the time being, since a vote at that stage would bepointless. He therefore formally proposed that a decisionon article 33 should be deferred.

55. Mr. SCOTLAND (Guyana) referring to the statementby the representative of Switzerland that the Conventionwould not apply to already independent States, said thatthat question was not yet settled: article 7 (Non-retro-activity of the present articles) was still under consider-ation.

56. Mr. DIENG (Senegal) said he wished to reply to theSwiss representative, who had stated that a politicalprinciple became a legal principle when it was no longercontested. In his view the principle of self-determinationwhich was no longer contested had become a legalprinciple, and even a peremptory norm of general inter-national law within the meaning of article 53 of the ViennaConvention on the Law of Treaties.

57. Sir Ian SINCLAIR (United Kingdom) said he wouldbe grateful if the representative of Sri Lanka would clarifythe proposal he had just made: was he proposing that theCommittee should defer its decision on article 33 and onthe various amendments proposed or that it should vote onthe amendments, while reserving its decision on article 33?

58. Mr. BRECKENRIDGE (Sri Lanka) said he saw noobjection to voting on the amendments at once, if theCommittee so desired.

59. Mr. RYBAKOV (Union of Soviet Socialist Republics)said he thought it would be logical and in conformity withestablished practice if the Committee deferred its decisionnot only on article 33, but also on the proposed amend-ments thereto. He proposed that the Committee shouldsuspend consideration of article 33 and take up article 34.

60. Mr. YANGO (Philippines) supported that proposal.

61. Mr. KRISHNADASAN (Swaziland) said that sincethe expert consultant was due to arrive shortly, it would bepreferable for the Committee to wait for him beforecontinuing its examination of article 33.

62. The CHAIRMAN proposed that the Committeeshould suspend consideration of article 33 and take uparticle 34.

It was so agreed.4

4 For resumption of the discussion of article 33, seemeeting, paras. 32 et seq.

43rd meeting - 3 August 1978 71

ARTICLE 34 (Position if a State continues after separationof part of its territory)5 {concluded)

63. Mr. RYBAKOV (Union of Soviet Socialist Republics)observed that France and Switzerland had proposed, inparagraph 3 of their amendment to articles 2, 33 and 34(A/CONF.80/C.l/L.41/Rev.l) that the article should berenumbered, which meant placing it in part III of the draft.That proposal was based on the idea that a colony was partof the metropolitan territory-an idea which was notaccepted by all countries and was contested by the socialistcountries, in particular,

64. That idea also appeared in paragraph 3 of article 33,which was one of the reasons why his delegation doubtedthe utility of that paragraph.

65. Consequently, the delegation of the Soviet Unioncould not support the amendment proposed by France andSwitzerland.

66. Sir Ian SINCLAIR (United Kingdom) suggested thatthe Committee should refer article 34 to the DraftingCommittee with the amendment submitted by France andSwitzerland. The Drafting Committee should examine, inparticular, the words "unless; (a) it is otherwise agreed"(subparagraph (a) of article 34), the meaning of which wasclear in the case of bilateral treaties, but not so clear in thecase of multilateral treaties.

67. Mr. RYBAKOV (Union of Soviet Socialist Republics)said he had no objection to the Committee of the Wholeapproving article 34 and referring it to the DraftingCommittee, provided it was understood that the amend-ment submitted by France and Switzerland was attachedonly for reference.

68. The CHAIRMAN proposed that article 34 should bereferred to the Drafting Committee and that considerationof the proposed amendment to that article should bedeferred until a decision had been taken on article 33.

It was so agreed.6


The following amendment was submitted: France and Switzer-land, A/CONF.80/C.l/L.41/Rev.L

For resumption of the discussion of article 34, see 53rdmeeting, paias. 20-21.

43rd MEETINGThursday, 3 August 19 78, at 3.30 p. m.

Chairman : Mr. RIAD (Egypt)

ARTICLE 35 (Participation in treaties not in force at thedate of the succession of States in cases of separation ofparts of a State)1

1. The CHAIRMAN invited the Committee to examinearticle 35 and the amendment to that article which hadbeen submitted by the delegation of Finland in documentA/CONF.80/C.1/L.39.

2. Mr. HALTTUNEN (Finland) said that the amendmentproposed by his delegation was to be seen as a draftingsuggestion. It was aimed essentially at simplifying the textof article 35 as proposed by the International LawCommission, by replacing the first three paragraphs of thattext by a reference to the corresponding paragraphs ofarticle 17, which contained similar provisions.

3. The CHAIRMAN said that, if there was no objection,he would take it that the Committee agreed that theFinnish proposal should be referred to the DraftingCommittee as a drafting amendment.

It was so agreed.

4. The CHAIRMAN said that, if there was no objection,he would take it that the Committee provisionally adoptedthe text of article 35 as proposed by the International LawCommission and referred it to the Drafting Committee forconsideration.

It was so agreed.2

ARTICLE 36 (Participation in cases of separation of partsof a State in treaties signed by the predecessor Statesubject to ratification, acceptance or approval)3

5. The CHAIRMAN reminded the Committee that theamendment which had been proposed to the article by thedelegations of Swaziland and Sweden in documentA/CONF.80/C.1/L.23 had been withdrawn.

6. Mr. KRISHNADASAN (Swaziland), speaking onbehalf of his own delegation and that of Sweden, requestedthat the text of article 36 as proposed by the InternationalLaw Commission be put to the vote.

Article 36, as proposed by the International LawCommission, was provisionally adopted by 60 votes to 3,with 12 abstentions, and referred to the Drafting Com-mittee. 4

7. Mr. JOMARD (Iraq) asked whether the DraftingCommittee would be able to take into consideration the



The following amendment was submitted: Finland,A/CONF.80/C.1/L.39.

2 For resumption of the discussion of article 35, see 53rdmeeting, paras. 22-23.

The following amendment was submitted: Swaziland andSweden, A/CONF.80/C.1/L.23. Withdrawn; see 40th meeting,para. 21.

For resumption of the discussion of article 36, see 53rdmeeting, paias, 24-25.


reference in article 36, paragraph 1, to article 33, para-graph 1, a provision concerning which the Committee hadso far taken no formal decision.

8. The CHAIRMAN said that when any article hasreferred to the Drafting Committee, it was subject to theunderstanding that that body could not take up anyreferences in the article to other provisions of the draftuntil those provisions had themselves been approved by theCommittee of the Whole.

PROPOSED NEW ARTICLE 36 bis5

9. Mr. TREVIRANUS (Federal Republic of Germany),introducing his delegation's proposal for a new article 36bis (A/CONF.80/C.1/L.53) said that the purpose of theamendment was to incorporate in Part IV of the draft theideas contained in articles 19 and 20 thereof. Article 19contained a presumption that a newly independent Statemaintained the reservations of its predecessor State. Hisdelegation proposed that, in order clearly to illustrate whatwas the existing law, the same presumption should beincluded in Part IV of the draft. It also proposed that a newState formed through either of the processes contemplatedin Part IV should enjoy the right extended to newlyindependent States by article 19, paragraph 2, to shape itsown treaty profile through the modification of existingreservations or declarations or through the expression ofconsent to be bound by, or the choice of, particularprovisions of a treaty.

10. During the debate on article 196 in the light of theamendments submitted to that article by his own del-egation and that of Austria in documents A/CONF.80/C.1/L.36 and A/CONF.80/C.1/L.25 respectively, there hadbeen general acceptance of the idea that a newly indepen-dent State, stepped into the shoes so to speak, of itspredecessor State. That idea had been confirmed by thevote on article 19. The legal nexus constituting successionmeant the taking over by the successor State of treatyobligations as they existed at the date of the succession,together with the reservations which attached thereto, andthe possibility for that State subsequently to adjust itsinherited treaty regime by withdrawing reservations-something that was always possible under general inter-national law—or by modifying them in accordance with itsdomestic needs.

11. While his delegation fully understood why someparticipants in the Conference had wished emphasis to be

5 The following amendment was submitted: Federal Republic ofGermany, A/CONF.80/C.1/L.53. [At the 1977 session, the FederalRepublic of Germany had submitted A/CONF.B0/C.1/L.47 forinsertion as a new article 36 bis. It was withdrawn at the resumedsession and the amendment A/CONF.80/C.1/L.53 was submitted inits place].

6 See Official Records of the United Nations Conference onSuccession of States in Respect of Treaties vol. I, Summary recordsof the plenary meetings and of the meetings of the Committee ofthe Whole (United Nations publication, Sales No. E.78.V.8),pp. 191 et seq.

placed on the special nature of the conditions of theformation of a newly independent State, it believed thatthe situation with respect to succession, as distinct fromaccession, was identical for the States to which Parts IIIand IV of the draft referred. There could be no doubt, forthe situation was one which flowed logically from the legalcharacter of succession as such, that the contractualposition of new States of the kind with which Part IV wasconcerned was the same as that of their predecessor States.That assumption could be found in article 19, paragraph 1,article 20, paragraphs 1 and 2, articles 23, 29, 30 and 33,and even in the borderline cases of articles 18 and 32. Thesuccessor State was bound ipso jure by the individual treatyrelationship created by the predecessor State, including thereservations and other declarations made by that State andthe objections thereto entered by its treaty partners.Paragraph 1 of his delegation's amendment was merely aformal expression of that situation. The contents of theparagraph would still hold true, as part and parcel of thephilosophy of the draft as a whole, even if the paragraphitself was rejected.

12. While paragraph 2 of the amendment could not beconsidered as clarifying an existing legal situation, sincethere had been very little State practice in the area to whichit referred, the introduction of the faculty mentioned inthat paragraph was both necessary and appropriate. If newStates were able to alter the reservations and declarationsthey inherited from their predecessors, they would be ableto harmonize the various treaties to which they succeededand so continue them with a minimum of difficulty. If theydid not have that faculty, they might be compelled toinvoke the escape clauses in the treaties or to terminatethem sooner than was appropriate for the preservation of asound international legal order. Paragraph 2 of the amend-ment was, therefore, a necessary corollary to the ruleproposed in paragraph 1 and, however paradoxical thatmight seem at first sight, enhanced rather than weakenedthe principle of continuity. The amendment as a whole was,indeed, designed to preserve the stability of existing treatyrelations as far as possible.

13. Mrs. SZAFARZ (Poland) said her delegation felt thatparagraph 1 of the proposal by the Federal Republic ofGermany merely stated explicitly provisions that werealready implicit in articles 30, 31, 33 and 35. It was clear,under the principle of ipso jure continuity, that a successorState inherited the treaties of a predecessor State, togetherwith any reservations or expressions of consent or prefer-ence relating thereto. Consequently, her delegation con-curred with the view of the Expert Consultant that aprovision such as the proposed paragraph was not entirelyindispensable.

14. It disagreed profoundly with paragraph 2 of theproposed amendment, since the general aim of thaprovision was to introduce the "clean slate" principle, albeiton a limited scale, in Part IV of the draft. The modificationof a reservation or the formulation of a new reservation!which would be acceptable in the case of a newindependent State, were inadmissible in instances of "juniting or separation of States, which were covered by ">


rule of ipso jure continuity of treaty regimes. The same wastrue of expressions of consent to be bound by parts of atreaty, or of preference for certain provisions of such aninstrument. In view of those considerations, her delegationwas unable to support the proposal by the Federal Republicof Germany.

15. Mr. ROVINE (United States of America) said heassociated himself with the comments made by the rep-resentative of Poland.

16. Mr. MUSEUX (France) said that his views on theproposal were less absolute than those of previous speakers.Paragraph 1 restated a rule which seemed logical in the lightof the principle of continuity that the Committee hadalready approved. Such a restatement might, indeed, not beindispensable, but it could be considered useful for pur-poses of clarification. Paragraph 2 of the proposed amend-ment raised a special problem, inasmuch as it sought toreintroduce, to a certain degree, the "clean slate" rule.There was thus a link between that paragraph and theamendment which his own delegation and that of Switzer-land had proposed to article 33 in document A/CONF.80/C.l/L.41/Rev.l. If that later amendment was adopted,paragraph 2 of the proposal by the Federal Republic ofGermany would be applicable in theory, but pointless inpractice, since the question at issue would be covered, atleast with regard to newly independent States by articles 19and 20. In that respect, therefore, the paragraph wouldseem to have no place in the draft.

17. His delegation was, however, prepared to accept theamendment in so far as it could be considered to relate tothe cases covered in articles 31 and 32, in which the treatyof a predecessor State was not necessarily in force for thesuccessor State.

18. Mr. SANYAOLU (Nigeria) said he agreed withprevious speakers that the proposed amendment wasunacceptable. The rules which had been set out in article 19had been drafted solely for the benefit of newly indepen-dent States and were inconsistent with the ipso jure rulethat was proclaimed in Part IV of the draft.

19. Mr. BOUBACAR (Mali) said he endorsed the criti-cisms of the proposed amendment that had been expressedby other speakers.

20- Mr. TORNARITIS (Cyprus) said it was a funda-mental rule of construction that what was clear needed noHiterpretation; the first paragraph of the proposed amend-ment merely stated the obvious. He agreed with otherspeakers that the second paragraph of the amendment wasentirely inconsistent with Part IV of the draft.

21 • Mr. TAP A VAC (Yugoslavia) said he associated him-seli with the views expressed by the representatives ofPoland, the United States of America and Cyprus.

22- Mr. GILCHRIST (Australia) said that, while heaPPreciated the intention behind the proposed amendment,

he agreed with those speakers who had taken the view thatparagraph 1 of the proposal was already covered by theprinciple of ipso jure continuity laid down in Part IV of thedraft as prepared by the International Law Commission.With regard to the attempt made in paragraph 2 of theamendment to replace the continuity principle by the"clean slate" principle, of which the International LawCommission had limited the application to newly indepen-dent States, his delegation supported the continuity prin-ciple as it had been advocated by the International LawCommission.

23. Mr. TREVIRANUS (Federal Republic of Germany)said that he was gratified to see that so many members ofthe Committee felt that what was said in paragraph 1 of hisdelegation's amendment was obvious and need not bestated in the draft Convention. In view of the commentswhich had been made, there was no point in requesting thatparagraph 2 of the amendment be put to the vote, but hisdelegation did wish to state that it believed there had beenat least one case of State practice which was relevant to thatparagraph. That had occurred when the Socialist Republicof Viet Nam had informed the depositaries of the multilat-eral treaties of the entities it considered to be its prede-cessors that it wished to maintain those treaties and itspredecessors' reservations to them. Since the SocialistRepublic of Viet Nam had restated those reservations inlanguage differing from that which had been employedwhen they had first been made, his delegation consideredthat new reservations had been entered to the treaty. Itformally withdrew its amendment.

24. Mr. KRISHNADASAN (Swaziland) said that theproposal of the Federal Republic of Germany endeavouredto deal with a very real problem. As he saw it, if a successorState succeeded to a treaty with existing reservations, itsonly course would perhaps be to terminate its participationin that treaty. However, a State wishing to remain a partyto a treaty might, after having given notice of termination,re-apply to become a party to the same treaty and enter itsown reservations thereto. That in turn gave rise to thequestion what the position would be in the case of treatiesthat did not contain a termination clause. Consequently, hesympathized with the proposal of the Federal Republic ofGermany although he would have had difficulty in support-ing it, since it was contrary to the principle of continuityembodied in Part IV of the draft convention.

ARTICLE 37 (Notification)7

25. The CHAIRMAN drew attention to an amendment toarticle 37 submitted by Finland in document A/CONF.80/C.1/L.40.

26. Mr. HALTTUNEN (Finland), introducing his del-egation's amendment, said that it was for the replacementof article 37 by a single provision to the effect that theterms of article 21 should apply to any notification underarticles 30, 31 or 35.

7 The following amendment was submitted at the 1977 session:Finland, A/CONF.80/C.1/L.40.


27. Mrs. THAKORE (India) said that article 37 laid downthe procedure whereby a successor State might exercise itsrights under articles 30, 31 and 35 of Part IV of the draftconvention to establish its status as a party or contractingState to a multilateral treaty, and the term "notification"had been used in those three articles to draw a cleardistinction between newly independent States, dealt with inPart III, and other successor States, dealt with in Part IV. Inarticle 37 the International Law Commission had adaptedthe provisions of article 21, which laid down the procedurewhereby a newly independent State might make a notifi-cation of succession. The purpose of the Finnish amend-ment, which was similar to a suggestion made during thediscussion on article 37 in the Sixth Committee of theUnited Nations General Assembly, was apparently to avoidrepetition of the terms of article 21 in article 37. Herdelegation, however, considered that article 37 should beretained as drafted by the International Law Commissionsince it was more in keeping with its approach, which wasto apply the "clean slate" principle to newly independentStates and the principle of ipso jure continuity to theuniting and separation of States. The Commission's text ofarticle 37 was therefore more logical.

28. Mr. DUCULESCU (Romania) said that, while hesupported the provisions of article 37, he proposed that thewords "notification of succession" be used instead of"notification" in both the title and body of the text inkeeping with the practice followed in drafting article 21.

29. In his delegation's opinion, thought could be given tothe possibility of dealing with all the issues relating to thenotification of succession in the same part of the conven-tion, while retaining, of course, the features specific to eachcase.

30. Mr. MARESCA (Italy) suggested that the DraftingCommittee be asked to check the final phase in paragraph 2of article 37 against the corresponding formulation in theVienna Convention on the Law of Treaties. The wording"may be called upon" seemed somewhat indefinite: therepresentative of the State would either be called upon toproduce full powers or he would not.

31. The CHAIRMAN said that, if there was no objection,he would take it that the Committee agreed to refer article37, together with the amendment thereto proposed byFinland, to the Drafting Committee.

It was so agreed8

PROPOSED NEW ARTICLE 37 bis (Objections to suc-cession) 9

32. The CHAIRMAN then drew attention to a newarticle 37 bis, dealing with objections to succession,

8 For resumption of the discussion, see 5 3rd meeting, paras.26-29.

9 At the 1977 session, the United States of America hadsubmitted A/CONF.80/C.1/L.37 for insertion as a new article37 bis. At the resumed session, the United States of Americasubmitted a revised version of the amendment A/CONF.80/C.l/L.37/Rev.l. Subsequently, it submitted a second revised versionof its amendment A/CONF.8d/c.l/L.37/Rev.2.

proposed by the United States (A/CONF.80/C.l/L.37/Rev.l).

33. Mr. ROVINE (United States of America), introducinghis delegation's amendment (A/CONF.80/C.l/L.37/Rev.l);said that it had been presented by the United States Govern-ment, in a slightly different form, in 1977-A/CONF.80/C.1/L.37—on the basis that some procedure was requiredfor dealing with objections to succession by successor Statesand parties to treaties. Under paragraph 1 of the proposednew article, any such objection would be limited to thosesubmitted "on the ground of incompatibility with theobject and purpose of the treaty or on the ground that thesuccession of the State to the treaty would radically changethe conditions of its operation". It was for the Conferenceto decide whether the proposed article would undulyweaken the continuity rule embodied in Part IV of thedraft convention, or whether it would make for a workableapproach. His delegation would welcome the guidance andcomments of the Conference in that connexion.

34. Mrs. THAKORE (India) said that the proposed newarticle had been submitted to meet the United StatesGovernment's concern, as expressed in its written com-ments in 1972 and 1975 (A/CONF.80/5, p. 323), at thelack of any provision in the draft articles on the effect of anobjection to a notification of succession made on either ofthe two grounds referred to in paragraph 1 of the proposedarticle. In her delegation's view, the proposed article, byinstitutionalizing the procedures for making such objectionswould only complicate matters. It was also her delegation'sview that the law of succession should deal with substantivematters only. She would remind the Conference that theInternational Law Commission had rejected the proposalsince it felt that it would be difficult to evolve rules to dealwith objections to notifications of succession, given themultitude of treaty relationships that might be affected.That the United States Government was itself aware of thepractical difficulties involved was clear from the fact that ithad suggested, as an alternative course, that a system forthe settlement of disputes should be instituted under whichany objection to a notification of succession could behandled.

35. Mr. ME1SSNER (German Democratic Republic) saidthat his delegation was opposed to the proposed newarticle, which would impair the character of the draftconvention and create new obstacles to the exercise of theright of succession. A general right of objection of the typeenvisaged would introduce further subjective elements intothe regime of succession and could result in arbitrarydiscrimination against a successor State. Moreover, since theproposed new article was not confined to any particulartype of multilateral treaty, objection by one State onlycould hinder the successor State's succession to the moreimportant multilateral treaties. Objections, to the extentthat they were justifiable, were already covered by para-graph 3 of article 16 and other provisions of the draftconvention, which appeared to be entirely satisfactory. The

only other permissible course was to apply by analogy ê

provisions of Part III relating to notification. In the event


of any problem or dispute, the existing draft articles andthe procedure envisaged for conciliation would be adequatefor the purpose of settlement.

36. Mr. TORNARITIS (Cyprus) said that before theprocedure governing objections to succession to a treatycould be regulated, which was the purpose of the proposednew article, there had to be a substantive provision onobjections. Part IV, contained no such provision, the onlysubstantive provisions of that nature being to the effectthat the draft articles would not become operative if certaineventualities, as provided for, occurred. For that reason, hisdelegation was unable to accept the proposed new article,which was contrary to the principle underlying Part IV ofthe draft convention.

37. Mr. MARESCA (Italy) said that all those attendingthe Conference were undoubtedly only too well acquaintedwith the complexities of reality and with the frequencywith which problems arose. In the course of his own longexperience in the service of the Italian Foreign Ministry, hehad known several cases where notification of succession toa treaty had been challenged by other States which hadquestioned the right of a country to proclaim itself asuccessor State. Such difficulties were a fact of life and theConference should face up to them squarely. The proposednew article provided a very necessary procedure for thatpurpose and one which could be regarded as an element ofdiplomatic law—the law of international procedure—as itapplied to the phenomenon of succession of States. Hetherefore differed entirely from those who considered thatthe proposal was without point.

38. Mr. TREVIRANUS (Federal Republic of Germany)said that, in his view, a procedural link between escapeclauses and machinery for the settlement of disputes was aprerequisite for the successful outcome of the Conference.

39. The International Law Commission had been wise torefrain from laying down general rules governing thecontinuance in force of treaties on the emergence of a newState, bearing in mind that the position would varyaccording to the type of treaty concerned. It had insteadpaved the way for an acceptable solution to the matter bymeans of the device which he had dubbed "escape clauses".In fact, they were far more than that, being in the nature ofa general formula which could, and must, be interpretedaccording to the requirements of special situations. That, inturn, presupposed the existence of a means for settling anydisputes as to the interpretation of those clauses, with the^m of ensuring that the process of succession washarmonious and smooth. In the circumstances, the UnitedStates proposal was to be regarded as a very importantEdition to the International Law Commission's draft.

40- Mr. STUTTERHEIM (Netherlands) said that hisdelegation supported the proposed new article, whichProvided for a very necessary procedure and, if a vote weretaken, it would vote in favour of it. Provision shouldhowever perhaps be included for notification to be made to"^ depositary, where there was one, so that the Stateconcerned would not have to notify the parties directly.

41. Sir Ian SINCLAIR (United Kingdom), also support-ing the proposed new article, said that he had notedseventeen separate instances of escape, or exception, clausesthroughout the draft articles, all in identical wording. Hisdelegation had no undue difficulty with that wording butconsidered that such clauses should be complemented by aprocedural mechanism in order to introduce a degree oflegal security both for the successor State and for otherStates parties to the treaties in question. In the absence ofsuch a procedure, it would be possible, in theory, for asuccessor State or any other State party to the treaty tolodge an objection to the application of the treaty at anytime—even years after succession had occurred—on theground that it would be incompatible with its object andpurpose or with the conditions for its operation.

42. Mr. USHAKOV (Union of Soviet Socialist Republics)said that, in his delegation's view, the proposed new articlewould cause more problems than it would solve. Forinstance, the opening words of the article "An objection tothe succession" immediately prompted the question whowould lodge such an objection. In principle, under theterms of article 30 and its related articles, which theConference had already adopted, only the parties to thetreaty could decide, on the basis of objective as opposed tosubjective criteria, whether it would continue in force.Those objective criteria were that a treaty would notremain in force if it appeared from the treaty or wasotherwise established that its application would be incom-patible with the objects and purpose of the treaty or wouldradically change the conditions for its operation. It wouldbe contrary to the provisions of article 30 and its relatedarticles for a State to decide unilaterally to notify itsobjection to succession to a treaty, as provided under theproposed new article. That was particularly true in the caseof multilateral treaties, hi the circumstances, his delegationwould have great difficulty in accepting the United Statesproposal.

43. Mr. DOGAN (Turkey) said that, while it was tmethat the proposed new article would meet certain needsthat might arise in international practice, the question ofthe application of the treaty being incompatible with itsobject and purpose fell more properly within the law oftreaties. For that reason, his delegation would not be in aposition to vote in favour of the proposal.

44. Mr. FERREIRA (Chile) said that the proposed newarticle would provide a sound basis for dealing with aproblem that had already been raised by a number ofdelegations, including his own, namely, who would decidewhether the application of a treaty was incompatible withits object and purpose.

45. Mr. RANJEVA (Madagascar) said that the proposedarticle 37 bis was dangerous. He had nothing to add on thegeneral problem regarding competence to determine thecompatibility or otherwise of succession to a treaty with itsobject and purpose, but the wording of the article lent itselfto subjective and arbitrary interpretations which mightthemselves be incompatible with the fundamental prin-


ciples of international law and the law of treaties. In effect,the succession of States constitutes an accession sui generisto a treaty and it was therefore somewhat contradictoryto introduce the possibility of objection to succession.Since tabula rasa had now been established as a fun-damental principle, it was to be hoped that the suc-cession of States would not involve a violent disruptionin the legal relationships between parties to treaties; thetabula rasa principle must take account of the needs ofinternational life. To accord to States parties to treaties thepossibility of opposing succession by an objection pro-cedure was likely to destroy the delicate balance of thedraft convention for which all delegations had striven at the1977 session. His delegation would therefore have difficultyin accepting article 37 bis as drafted.

46. Mr. BUBEN (Byelorussian Soviet Socialist Republic)said that article 37 bis was an attempt to introduceunnecessarily detailed provisions for the application of thedraft convention: the original text sufficed for thatpurpose, provided all States showed goodwill. Article 37 bisincreased the possibility of creating a legal vacuum forsuccessor States, since if one such State lodged an objec-tion, it would be possible to question the whole succession.That would not promote stability in contractual relations,for it would create problems soluble only by the extremelycomplex procedure envisaged in the proposed new article39 bis (A/CONF.80/C.l/L.38/Rev.l). In fact it might beimagined that article 37 bis had been proposed in order toensure the inclusion in the draft convention of article 39bis. It was unrealistic and his delegation would not supportit.

47. Mr. PEREZ CHIRIBOGA (Venezuela) said that, as aresult of the convention on the succession of States,standards would be established for the determination of theexistence or otherwise of incompatibility of succession to atreaty with its object and purpose or the emergence of aradical change in the conditions of its operation. Someprocedure was required for the notification of objectionsand his delegation therefore supported article 37 bis.However, many speakers had expressed dissatisfaction withthe proposed text and it might be possible to find a moreacceptable working.

48. Paragraph 4 was certainly misplaced, since the resol-ution of disputes ought to apply to the whole draftconvention and not merely to a particular article. If article37 bis was put to the vote, he would ask for a separate voteon paragraph 4.

49. Mr. KOROMA (Sierra Leone) said that at first sightarticle 37 bis appeared commendable but closer inspectionrevealed its dangers. No delegation would be opposed toinstitutionalizing the procedure for objections. However ithad rightly been said that the text of article 37 bis raisedmore problems than it solved. It confused the issue byreferring to incompatibility with the object and purpose ofthe treaty and radical change in the conditions of itsoperation: his delegation had yet to be convinced that theuse of those two formulations was appropriate. The articledid not indicate any method of determining incompat-

ibility and, if it were accepted as it stood, it would tend toundermine all treaty regimes.

50. Finally, paragraph 3 deprived newly independentStates of their right under the "clean slate" principle toaccept an existing treaty if they so desired. His delegationcould not therefore support article 37 bis.

51. Mr. CHUCHOM (Thailand) said that article 37 bisprovided a useful method of determining whether suc-cession to a treaty was compatible with its object andpurpose. His delegation would vote in favour of it.

52. Mr. SILVA (Peru) said that if article 37 bis was putto the vote, he would ask for each paragraph to be votedupon separately, since his delegation thought that theproposed procedure of notification was useful but couldnot accept other elements of the article.

53. Mr. FONTBLAZQUEZ (Spain) said that the pro-posed new article 37 bis contained two doubtful points.The first was the fact that paragraph 4 appeared to bemisplaced, since it did not relate to the title of the article.The second and more important point was that he assumedfrom paragraph 1 that the treaty would apply if thesuccessor State did not lodge an objection within 12months. That imposed a considerable limitation on thefreedom of a successor State to accept or reject a treatyunder the provisions of previous articles and a consequentextension of the principle of continuity.

54. Mr. SCOTLAND (Guyana) asked that a vote onarticle 37 bis should be deferred until the following meetingin order to allow delegations more time for reflexion.

55. Mr. YANGO (Philippines) and Mr. ABOU-ALI(Egypt) supported the Guyanese representative's request.

56. Mr. MUDHO (Kenya) asked that not only the votebut further discussion on article 37 bis be deferred until thefollowing meeting.

It was so agreed.

ARTICLE 38 (Cases of State responsibility and outbreak ofminorities)

ARTICLE 39 (Cases of military occupation)10

57. Mr. GUTIERREZ EVIA (Mexico), introducing hisamendment for the deletion of articles 38 and 39(A/CONF.80/C.1/L.55), said that the inclusion of thosearticles in the draft convention had already been the subjectof written comments by a number of Governments(A/CONF.80/5, p. 263 etseq.). His delegation proposedthat the articles should be omitted because they referred tomatters outside the scope of the succession of States, as theInternational Law Commission itself recognized. Moreover,both military occupation and the outbreak of hostilities

1 0 The following amendment was submitted to articles 38 and39: Mexico, A/CONF.80/C.1/L.55.


were entirely abnormal conditions and the rules governingtheir legal consequences should not be regarded as formingpart of the general rules of international law applicable inthe normal relations between States, as the Commissionaffirmed in paragraph 4 of its commentary to draft articles38 and 39 (A/CONF.80/4, p. 108). Finally, cases of Stateresponsibility had already been covered by article 73 of theVienna Convention on the Law of Treaties, to which thenecessary reference should be made.

58. Mrs. THAKORE (India) said that articles 38 and 39made a general reservation concerning any question thatmight arise in regard to a treaty from the internationalresponsibility of a State, or from the outbreak of hostilitiesbetween States or the military occupation of a territory.Questions arising from the international responsibility of aState or from the outbreak of hostilities between Stateswere excluded from the Vienna Convention on the Law ofTreaties by article 73. Both those matters might have animpact on the law of succession of States in respect oftreaties and had therefore been excluded from the scope ofthe draft articles so as to prevent any misunderstanding asto the inter-relationship between the rules governing thosematters and the law of treaties. Military occupation of aterritory did not constitute a succession of States.

59. Her delegation was in favour of maintaining articles 38and 39 in order to remove any misunderstanding on thesubject and was not therefore in a position to support theMexican amendment.

60. Mr. ABOU-ALI (Egypt) said that to delete thearticles would be tantamount to ignoring the problem ofhostilities in the succession of States. Their maintenancewould remove any doubt that armed aggression, which wascontrary to the Charter of the United Nations andinternational law, did not provide a legal basis for anydecision relating to the succession of States. His delegationtherefore supported the Indian representative.

61. Mr. TORNARITIS (Cyprus) said his delegation alsosupported the retention of the articles.

62. Mr. LUKABU-K'HABOUJI (Zaire) said that deletionof the articles might give rise to disputes. If the Mexicanamendment was put to the vote, he would vote against it.

63. Mr. GUTIERREZ EVIA (Mexico) said that all rep-resentatives who had spoken so far appeared to be awarethat the articles were unnecessary and that then" contentsWere not in keeping with the nature of the draft conven-tion. However, in a spirit of conciliation, he was preparedto withdraw his amendment.

64. The CHAIRMAN said if there were no objections, hewould take it that the Committee wished to refer theoriginal text of draft articles 38 and 39 to the DraftingCommittee.

It was so decided.11

For resumption of the discussion of articles 38 and 39, see53rd meeting, paias. 30-33.

65. Mr. PfiREZ CHIRIBOGA (Venezuela), seconded bySir Ian SINCLAIR (United Kingdom) and Mr. TOR-NARITIS (Cyprus), moved that the meeting adjourn.

It was so decided.


44th MEETING

Friday, 4 August 1978, at 10.25 a.m.




PROPOSED NEW ARTICLE 37 bis (Objections to suc-cession)1 (continued)

In the absence of the Chairman, Mr. Ritter (Switzer-land), Vice-Chairman, took the Chair.

1. Mr. ROVINE (United States of America) said that,following the discussion at the 43rd meeting concerning thenew article 37 bis proposed by his country (A/CONF.80/C.l/L.37/Rev.l) and after consulting other delegations, hisdelegation had prepared a revised version of the text of thatprovision. No change had been made to article 37 bis,paragraph 1, but paragraphs 2, 3, and 4 had been replacedby new paragraphs 2 and 3. The new version of article 37bis would appear in document A/CONF.80/C.1/L.37/Rev.2, which had not yet been circulated. It would benoted that paragraphs 2 and 3 were similar to articles 65and 66 of the Vienna Convention on the Law of Treaties.

2. Replying to questions raised at the 43rd meeting, hesaid that article 37 bis related to objections to succession toa treaty, not to objections to a succession of States.Paragraph 1 of that article should perhaps be clearer on thatpoint. It should also be noted that the question ofobjections was entirely different from that of the settle-ment of disputes. An objection did not necessarily lead to adispute. Article 37 bis was intended to provide a regularprocedure for the objections which certain States wouldundoubtedly make in connexion with succession to treatieson the grounds that such succession would be incompatiblewith the object and purpose of those treaties or that itwould radically change the conditions of their operation.Such objections could be made by the successor State or bya party of the treaty.

1 For the list of amendments submitted, see 43rd meeting,foot-note 9.


3. After a brief procedural discussion in which Mr.NATHAN (Israel), Mr. FONT BLAZQUEZ (Spain) andMr. LUKABU-K'HABOUJI (Zaire) took part, the CHAIR-MAN suggested that the discussion on article 37 bis shouldbe postponed until document A/CONF.80/C.l/L.37/Rev.2had been circulated.

It was so decided.2

PROPOSED NEW ARTICLE 39 bis (Settlement of dis-putes)3

4. Mr. ROVINE (United States of America), introducingthe new article 39 bis proposed by his delegation (A/-CONF.80/C.l/L.38/Rev.l), said that that article was es-sential in order to protect newly independent States in thechoice they could make in accordance with the "clean-slate" principle and to protect the treaty rights of States ingeneral in the application of the principle of continuity. Asthe United Kingdom representative had pointed out,4 thedraft convention contained 17 references to the concepts ofincompatibility with the object and purpose of a treaty andof a radical change in the conditions for the opreration of atreaty. There was no doubt that the provisions containingthose references would give rise to differences of opinionconcerning their interpretation and application. Otherprovisions were vague, but they were of lesser importanceto the draft. The references to incompatibility with theobject and purpose of a treaty and to a radical change inthe conditions for the operation of a treaty were to befound not only in articles requiring the application of the"clean slate" principle such as articles 16, 17, 18, 26and 29, but also in articles requiring the application of theprinciple of continuity, such as articles 30 to 37. For bothkinds of articles, it was essential to have a provision on thesettlement of disputes.

5. According to article 16, paragraph 1, for example, anewly independent State could establish its status as a partyto any multilateral treaty which at the date of thesuccession of States had been in force in respect of theterritory to which the succession of States related. If nosuch option existed, the "clean slate" rule would be largelymeaningless. According to article 16, paragraph 2, however,paragraph 1 did not apply if it appeared from the treaty orwas otherwise established that the application of the treatyin respect of the newly independent State would beincompatible with its object and purpose or would radicallychange the conditions for the operation of the treaty. Thatlimitation, while fully justified, was nevertheless very vague.There was no doubt that its interpretation would give riseto difficulties and that a system for the settlement of

For resumption of the discussion, see 46th meeting, paias. 27et seq.

At the 1977 session, the United States of America proposed theinsertion of a new article 39 bis (A/CONF.80/C.1/L.38). At theresumed session, the United States of America submitted a revisedversion of the amendment (A/CONF.80/C.l/L.38/Rev.l); theNetherlands submitted an amendment (A/CONF.80/C.1/L.56) tothe proposed new article 39 bis.

4 See 43id meeting, para. 41.

disputes was needed. Indeed, without a system for thesettlement of disputes, it would, in practice, be difficult toestablish whether or not a newly independent State was aparty to a particular treaty.

6. The application of the principle of continuity alsorequired a system for the settlement of disputes. Withregard to article 30 on the effects of a uniting of States inrespect of treaties in force at the date of the succession ofStates, he referred to the hypothetical case in which a Statethat was bound by treaties to 100 States united withanother State that was also bound by treaties to 100 States.If the newly formed State claimed that it had notsucceeded to most of those treaties because their appli-cation would be incompatible with their object and purposeor would radically change the conditions for their op-eration, and if no provision had been made for a procedurefor the settlement of disputes, the other States parties tothose treaties would probably not be prepared simply torelinquish their rights under those treaties, for if they did,they would be allowing the successor State to reintroducethe "clean slate" principle in the provisions of Part IV ofthe draft. In the case of the future convention, a procedurefor the settlement of disputes was therefore more than anabstract ideal. The purpose of such a procedure was not toreduce the chances of negotiation; rather, it was based onthe idea that, in such disputes, negotiations might breakdown. Nor was it designed to weaken the sovereignty ofStates or to establish better international judicial orarbitration mechanisms for their own sake. Draft article 39bis was designed only to protect newly independent Statesin the context of the application of the "clean slate" ruleand States in general in the context of the application ofthe principle of continuity.

7. The mechanism proposed in the new article 39 bisenabled States to choose between the submission ofdisputes to arbitration, to the International Court of Justiceor even to the conciliation procedure. The article estab-lished a presumption in favour of arbitration and thesubmission of disputes to the International Court ofJustice, but any State could, by means of a reservation,declare that it did not consider itself bound by thatpresumption, which was nevertheless the best means ofprotecting States in the application both of the "cleanslate" rule and of the principle of continuity. It was evidentthat binding decisions provided better protection than didnon-binding decisions, which could nevertheless be of someuse. The proposed article 39 bis did not go as far as article66 of the Vienna Convention on the Law of Treaties, whichconcerned the interpretation of the concept of a peremp-tory norm of general international law. The question whichthe Committee must now decide was whether it reallydesired to protect States in the application of the futureconvention. If it did, a procedure for the settlement ofdisputes was essential.

8. Mr. STUTTERHEIM (Netherlands), introducing his

delegation's amendment (A/CONF.80/C.1/L.56) to the newarticle 39 bis proposed by the United States of America,said that his country had long been of the opinion thatinternational disputes ought to be submitted to inter'


national authorities and that provisions on the settlementof disputes should be included in treaties which might giverise to disputes. That attitude was not dictated by the factthat the International Court of Justice had its seat at TheHague. Rather, it was because the Netherlands was infavour of the international judicial settlement of disputesthat the Court had its seat in that country.

9. The United Nations General Assembly was also infavour of provisions on the peaceful settlement of disputes,as could be seen from its resolution 3232 (XXIX), in whichit had drawn the attention of States to the advantage ofinserting in treaties clauses providing for the submission tothe International Court of Justice of disputes which mightarise from the interpretation or application of such treaties.His Government had, moreover, already stressed the needfor an article on the settlement of disputes in the commentsin had made, in 1975, on the International Law Com-mission's provisional draft articles (A/CONF.80/5,pp. 313-314). The differences of opinion which hademerged in the Committee of the Whole in connexion withsome provisions had only confirmed him in that view. In sofar as possible, disputes relating to the application orinterpretation of the future convention should therefore besubmitted to the International Court of Justice. The UnitedStates amendment provided for recourse to the Inter-national Court of Justice only when the parties failed toagree on an arbitration procedure. In his delegation'sopinion, that arrangement should be reversed in the case ofdisputes concerning article 6 and article 33, paragraph 3;such disputes should be submitted to the Court unless theparties decided to settle them by means of an arbitrationprocedure. In the case of other disputes, the procedureprovided for in paragraph 1 of the United States proposalwould be acceptable. His delegation could not, however,accept paragraph 2 of that proposal, and that was why ithad submitted its own draft article 39 bis. He was notunaware of the fact that a member of delegations wouldnot welcome a provision which imposed on States anobligation to submit their disputes to the InternationalCourt of Justice, or even compulsory arbitration. Henevertheless hoped that the discussion which would takeplace would prompt those delegations to reconsider theirposition. Limits must be placed on the sovereignty of Stateswhen the interests of the international community were atstake or, in other words, when it was in the interest of goodrelations among States to find the most effective means ofsettling disputes.

!0- Mrs. THAKORE (India), referring to article 39 bis,Paragraph 4, as proposed by the United States of America,s&id that her delegation would have no difficulty in agreeingto a compulsory conciliation procedure along the lines of'hat provided for in article 66 of the Vienna Convention on'he Law of Treaties, since the future convention wouldcomplement the Vienna Convention. Her delegation wasPleased to note that the revised version of article 39 bis did°t provide for the compulsory submission of disputes toe International Court of Justice. The question whether aate was a newly independent State or had been formed in

which were essentially of the same character

as those existing in the case of the formation of a newlyindependent State was not of such fundamental importanceas the question of the existence and content of aperemptory norm of general international law; it did not,therefore, warrant a decision by the supreme judicial organof the international community. Moreover, disputes con-cerning the first of those two questions were more politicalthan legal in nature. At the eighteenth session of theAsian-African Legal Consultative Committee, some of itsmembers had rightly reached that same conclusion and hadstated that disputes regarding the future convention shouldbe settled through diplomatic negotiations.

11. According to article 39 bis, paragraph 1, any disputeregarding the interpretation or application of the futureconvention should be submitted to compulsory arbitrationor to compulsory judicial settlement. Since the inter-national community was not yet ready to accept those twoforms of settlement of disputes, her delegation welcomedthe fact that article 39 bis paragraph 2, enabled States todeclare that they did not consider themselves bound byparagraph 1, in which case the other States parties wouldnot be bound by paragraph 1 with respect to States whichhad made such a declaration. Paragraph 2 of article 39 biswas similar to article 13, paragraph 2 of the Convention onthe Prevention and Punishment of Crimes against Inter-nationally Protected Persons, including Diplomatic Agents,1973.5

12. Paragraph 3, which provided that any State whichhad made a declaration in accordance with paragraph 2could at any time withdraw that declaration by notificationto the Secretary-General, was similar to article 13, para-graph 3, of the Convention on the Prevention and Punish-ment of Crimes against Internationally Protected Persons,including Diplomatic Agents. Paragraphs 2 and 3 of article39 bis made the article more flexible and might make itmore acceptable.

13. In view of the position which her delegation hadadopted on article 39 bis, as proposed by the United Statesof America, it could not accept article 39 bis, sub-paragraph (a), as proposed by the Netherlands, for thatsubparagraph reintroduced the concept of the compulsoryjudicial settlement of disputes concerning the interpretationor application of article 6 or article 33, paragraph 3. Herdelegation was also unable to support subparagraph (b),since it provided for compulsory arbitration or judicialsettlement in the case of disputes concerning the inter-pretation or application of all the other provisions of thefuture convention; States were not entitled to declare thatthey did not consider themselves bound by sub-paragraph (b). Consequently, the whole of article 39 bis asproposed by the Netherlands was unacceptable to herdelegation.

14. Mr. PEREZ CHIRIBOGA (Venezuela) said that theConference must deal with the question of the settlementof disputes in one way or another. The proceduresproposed so far were interesting, but his delegation could

5 General Assembly resolution 3166 (XXVIII).


not support them. Venezuela had always been peace-lovingand had tried to find peaceful solutions to disputes. Itcould pride itself on never having had any internationaldisputes since its accession to independence. Generallyspeaking, direct negotiations seemed to be the best meansof settling disputes; moreover, there was an obligation onStates to negotiate. It should be noted, in that connexion,that the notion of the peaceful settlement of disputes didnot necessarily entail compulsory judicial settlement. Initself, compulsory judicial settlement was a good means ofsettling disputes, but it must not be imposed on a Statewhich had not expressly accepted it for a particularcategory of dispute. Whereas other delegations regardedcompulsory jurisdiction as a sure, prompt and definitiveguarantee of the settlement of disputes, his delegationbelieved experience showed that it was better to allow theparties concerned to choose the means they consideredmost appropriate.

15. As a lawyer, he hoped that the future conventionwould be supplemented by a procedure for the settlementof disputes. As a Government representative, however, hehad to take account of the fact that it was useless to drawup international instruments that had little chance ofentering into force. The Vienna Convention on DiplomaticRelations (1961), for instance, had been ratified by 92States, but only 31 States had signed its Optional Protocolconcerning the Compulsory Settlement of Disputes.6 If theprovisions of the Protocol had been introduced into theConvention, the latter would not have obtained the samenumber of ratifications and it would not render the servicesit was currently rendering to the international community.Clearly, States were not yet prepared to accept a system ofcompulsory jurisdiction. No one was unaware of thedifficulties encountered by the United Nations Conferenceon the Law of the Sea in devising a procedure for thesettlement of disputes concerning matters relating toState sovereignty.

16. Far from facilitating the speedy and effective settle-ment of disputes, the conciliation procedure which theUnited States delegation proposed should be annexed tothe convention represented the most roundabout way oftackling the problem. He could not accept the provision inthe second sentence of paragraph 5 of the annex proposedby the United States, because that provision in fact againgave a role to the International Court of Justice, given theconsiderable moral effect of an advisory opinion of theCourt. The power granted to the chairman of the concili-ation commission in paragraph 4 seemed to be contrary tothe very nature of a commission. Lastly, the provision inthe final sentence of paragraph 6 contained an element ofcoercion that was contrary to the very essence of genuineconciliation. He was not, therefore, in a position to supportthe proposal of the United States or the proposal of theNetherlands.

17. He was in favour of omitting from the conventionany reference to a system for the settlement of disputes, so

United Nations, Treaty Series, vol. 500, pp. 95 and 241.

as to leave the parties the greatest possible freedom inchoosing the method of settlement they deemed appropri-ate, bearing in mind the provisions of Article 33 of theCharter of the United Nations. He could, however, agree toa compromise solution under which the provisions on thesettlement of disputes contained in the annex to the 1969Vienna Convention on the Law of Treaties would bereproduced in an optional protocol.

18. Sir Ian SINCLAIR (United Kingdom) said that, as therepresentative of the United States had pointed out, thedraft convention contained a number of provisions theinterpretation and application of which might give rise todifficulties in certain cases of succession of States in respectof treaties. The discussion on article 37 bis proposed by theUnited States (A/CONF.80/C.l/L.37/Rev.l) had high-lighted the problems posed by a saving clause that appearedno fewer than 17 times in the draft articles. That savingclause was based on two criteria: succession to a treatycould be objected to either on the ground that theapplication of the treaty in respect of the successor Statewould be incompatible with its object and purpose or onthe ground that it would radically change the conditions forits operation. The first of those two criteria was similar tothe criterion that had been adopted in subparagraph (c) ofarticle 19 of the Vienna Convention on the Law of Treatieswith a view to determining the validity of a reservation inthe case of a treaty containing no provisions on reser-vations. The second was taken from article 62 of theVienna Convention on the Law of Treaties, which relatedto a fundamental change of circumstances. Those wereintended to be objective criteria which would be invoked ingood faith in certain cases, but there would doubtless becases in which a successor State or another State party to atreaty would invoke one of the two criteria to establish, toits own advantage, the non-applicability of the treaty. Amechanism must therefore be found to prevent improperuse of that saving clause.

19. Clearly, however, the problem was not limited to theinterpretation or application of saving clauses. The dis-cussion on article 6 of the draft had brought out thedifficulties raised by that article, which would undoubtedlybe a source of disputes if maintained in the convention. Thediscussion on article 33, paragraph 3, had also shown theneed to provide for machinery for the settlement ofdisputes if a provision of that kind was to appear in theConvention.

20. An effective system for the settlement of disputesmust, therefore, be established if the convention was to beof any use. That view had been shared by some members otthe International Law Commission and it was only lack ottime that had prevented the Commission from adoptinga

draft article on the settlement of disputes, as was stated inparagraph 80 of its commentary to the general features otthe draft articles (A/CONF.80/4, p. 15).

21. It might be argued that the Conference's sole taskwas to codify substantive rules and that it need not conc^11

itself with the manner in which the convention would j>applied in practice. However, the whole object of "\exercise was to prepare a convention which would ke


possible to resolve the practical problems raised by cases ofsuccession of States in respect of treaties. The Conferencemust not, therefore, adopt a convention which, it knew inadvance, would be difficult to interpret and apply withoutmaking provision for the settlement of disputes.

22. There were constructive elements in both the pro-posals before the Committee. The proposal of the Nether-lands was more radical in that it provided for disputesconcerning the interpretation or application of article 6 orarticle 33, paragraph 3, to be submitted directly to theInternational Court of Justice. It was of course based onthe assumption that those two provisions would be main-tained in the convention in their existing form. TheCommittee would therefore have to wait until it had takena decision on those two provisions before pronouncing onthat aspect of the Netherlands proposal. That proposal alsoenvisaged the solution of arbitration, with the possibility ofsubmitting the dispute to the International Court of Justiceif the arrangements necessary to permit the arbitration toproceed had not been completed within one year.

23. The proposal of the United States was more quali-fied. It also envisaged arbitration as the basic solution withthe possibility of submitting the dispute to the Inter-national Court of Justice for decision if the arrangementsnecessary to permit the arbitration to proceed had not beencompleted within a prescribed period of time. Paragraph 2took account of the objections of those who had difficultyin accepting automatic recourse to arbitration or to theInternational Court of Justice: under it, each State partycould declare that it did not consider itself bound by thatsystem. In any case, provision was made for a conciliationprocedure in the case of disputes between States whichaccepted the basic system and those which did not.

24. His delegation supported the United States proposaland would even be prepared to support that part of theNetherlands proposal providing for the direct submission tothe International Court of Justice of disputes concerningarticle 6 or article 33, paragraph 3, if those provisions wereincluded in the convention. It was, however, aware thatthat element of the Netherlands proposal might lead tocontroversy. In conclusion, his delegation suggested that aspecial ad hoc working group might be established toprepare a proposal on machinery for the settlement ofdisputes which would command general agreement. Thegroup should be representative of all trends of opinion inthe Committee.

2S- Mr. KRISHNADASAN (Swaziland) noted that theProposals of the United States and the Netherlands rep-resented an attempt to fill a gap in the draft convention andWere based on a draft article on the settlement of disputesthat had been submitted to the International Law Com-nussion by one of its members (A/CONF.80/4, p. 14). Heexperienced the same difficulties with those two proposalsas did the representatives of India and Venezuela. Like"tern, he considered that the procedure for the settlement°f disputes should be as flexible as possible and that since^sputes concerning the interpretation of the Convention"Ught be political in nature, the best means of settling them"°uld be through the normal diplomatic negotiations

procedure. He also considered that the international com-munity was not yet ready to accept a compulsory settle-ment procedure such as that which existed in internal law.

26. Turning to the conciliation procedure which theUnited States proposed to annex to the convention, he saidthat, for the reasons given by the representative ofVenezuela, he could not accept the provision in paragraph 5to the effect that the conciliation commission "mayrecommend to the United Nations that an advisory opinionbe requested from the International Court of Justiceregarding the application or interpretation of the PresentConvention". He pointed out that the annex to the 1969Vienna Convention on the Law of Treaties contained noprovision of that kind; in his view, that provision went fartoo far, given the considerable importance attached to theadvisory opinions of the International Court of Justice.

27. He also had difficulty in accepting the provision inthe last sentence of paragraph 6 to the effect that "anyparty to the dispute may declare unilaterally that it willabide by the recommendations in the report [of theconciliation commission] so far as it is concerned". Hewondered what would happen if, the conciliation com-mission having made recommendations favourable to one ofthe parties, that party declared unilaterally that it wouldabide by those recommendations.

28. The best solution might be to set out a conciliationprocedure in an annex to the convention, as proposed bythe United States, but on condition that that conciliationprocedure conformed to the procedure contained in theannex to the Vienna Convention on the Law of Treaties. Hecould not, therefore, support the proposal of the Nether-lands.

29. Mr. KOECK (Holy See) said that he unreservedlysupported any procedure likely to lead to a pacificsettlement of disputes to which the interpretation or theapplication of the convention gave rise. He considered thatthe parties should, in the first instance, be free to select, theprocedure they preferred, but was ready, in conformitywith the position taken by all the Popes, to support anyproposal providing for compulsory arbitration. While recog-nizing the merits of the negotiation procedure, he con-sidered that provision should be made for a more effectiveprocedure for the settlement of disputes to which partiesmight have recourse if negotiations failed. He was thereforegrateful to the sponsors of the proposals submitted indocuments A/CONF.80/C.l/L.38/Rev.l and A/CONF.80/C.1/L.56. In his opinion, it was high time that theinternational community renounced the use of force andsought more peaceful methods of settling disputes. TheHoly See would, consequently, support any initiative tomake provision for such a solution in the convention.

30. Mr. MARESCA (Italy) said that it was not enoughmerely to prescribe rules; efforts should also be made toensure that they were applied. Although all codificationconventions were capable of giving rise to disputes, few ofthem contained provisions relating to the settlement ofsuch disputes.


31. The method adopted in the case of the 1961 ViennaConvention on Diplomatic Relations and the 1963 ViennaConvention on Consular Relations,7 whereby provisionsrelating to the settlement of disputes were presented in theform of an optional protocol, offered certain advantages, asthe representative of Venezuela had commented, but it didnot guarantee the application of legal rules and, withoutsuch a guarantee, a rule had no more force than a meredeclaration. A method other than that of the optionalprotocol must therefore be found, and provisions relatingto the settlement of disputes must be incorporated into thebody of the convention.

32. The proposals of the United States and the Nether-lands had the merit of offering genuine solutions and ofbeing based on major international institutions such as theInternational Court of Justice and the arbitration proce-dure, which enjoyed the respect and confidence of theentire international community. However, their fault wasthat they failed to follow the hierarchical order of thevarious procedures. Those procedures could be divided intotwo categories: procedures such as good offices, mediationor conciliation, which produced a purely optional solution;and procedures such as arbitration and recourse to theInternational Court of Justice, which produced a manda-tory solution. The logical practice was therefore to beginwith the former procedures and have recourse to the latteronly when the former had failed.

33. He thought that recourse should first be had tonegotiation, which was the most natural method, then toconciliation, when negotiation had failed. In his view, it wasnot the solution provided by conciliation, but the recourseto conciliation wliich should be compulsory if diplomacyhad not succeeded. The United States deserved great creditfor setting forth that conciliation procedure in detail, but ithad been in error in presenting it as an alternative toarbitration, when it ought to precede arbitration. Hethought that stress should be laid on the conciliationprocedure, since it could be accepted by all States, and thatrecourse to arbitration or to the Internationa] Court ofJustice should be contemplated only if conciliation hadfailed.

34. He shared the view of the United Kingdom represen-tative that a working group should be set up to consider theproposals by the United States and the Netherlands and totry to find a solution acceptable to all. In his opinion, asequence should be established in the methods used tosettle disputes: the first step that should be envisaged wasmandatory recourse to conciliation, followed in case offailure, by recourse to arbitration. During the conciliationprocedure, it might be preferable not to request an advisoryopinion from the International Court of Justice so as not toinfluence the conciliation commission.

35. Mr. NAKAGAWA (Japan) observed that, during thegeneral debate wliich had taken place at the beginning ofthe Conference in 1977, his delegation had stressed theneed—subsequently recognized by a good number of otherdelegations—to include in the body of the convention a

system for the settlement of disputes,8 since some rulesmight lead to complications in application or interpret-ation. In the context of the draft convention, his delegationhad always favoured a clear and, if possible, compulsorysettlement procedure. Moreover, the United Nations Con-ference on the Law of Treaties had partly incorporated inarticle 66 of the Vienna Convention the idea, which had itsorigins in a Japanese proposal submitted at that Confer-ence, of referring to the International Court of Justice, atthe request of one of the parties to the dispute, anydisputes arising from claims under the articles concerningjus cogens, and, in any other cases concerning the interpret-ation or application of the articles of Part V of thatConvention, of referring the dispute to arbitration, if nosolution had been found after a specified period. In general,his delegation favoured the establishment of a systemenvisaging, in the first instance, negotiations and sub-sequently, if negotiations failed, compulsory recourse tothe International Court of Justice or to arbitration.However, it would be prepared to accept a conciliationprocedure as long as reference to that procedure wascompulsory.

36. In its proposal, the United States delegation hadvisualized two kinds of disputes and had embraced theprocedure embodied in Article 33 of the Charter of theUnited Nations and by the International Court of Justice,on the one hand, and the conciliation procedure, on theother. His delegation could support the Netherlands pro-posal, which envisaged a compulsory procedure, since it wasin line with the position it had taken at the Conference onthe Law of Treaties. If, however, the international com-munity considered that it was still too early to accept acompulsory procedure for the settlement of disputes,provision would then have to be made at least forconciliation procedures based on the Vienna Convention onthe Law of Treaties. His delegation could, accordingly,accept the United States proposal, but reserved the rightto revert to the question, if need be.

Mr. Riad (Egypt) took the Chair,

37. Mr. FONT BLAZQUEZ (Spain) said that the draftconvention unquestionably contained a number of ambigu-ous formulations which would have to be clarified bypolitical negotiations. While, at the national level, a judgecould interpret provisions which gave rise to misunderstand-ing, at the international level the situation was morecomplicated, since State sovereignty had to be taken intoaccount and the rights, not of individuals, but of States hadto be dealt with. That was why negotiations were the onlymethod which gave satisfaction to the parties withoutarousing their resentment.

38. Citing Articles 62 and 63 of the Statute of theInternational Court of Justice, he commented that not onlythose States which ratified the convention on succession of

7 United Nations, Treaty Series, vol. 596, p. 261.

8 Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties, vol. I, Summary records o]the plenary meetings and of the meetings of the Committee of theWhole (United Nations publication, Sales No. E.78.V.8), P>30'3rd meeting, para. 21.


States in respect of treaties but even those which merelysigned it would be affected by problems of interpretationor application raised by the convention. He drew attentionto article 18 of the Vienna Convention on the Law ofTreaties concerning the obligation not to defeat the objectand purpose of a treaty prior to its entry into force, underwhich a State which signed a treaty was required to assumea number of obligations. If, however, that State hadobligations to fulfil, it could expect to have a number ofrights. Consequently, a State which had signed the conven-tion without ratifying it would be entitled to makerepresentations to the tribunal to which the dispute arisingfrom the interpretation or application of the conventionhad been submitted. That meant that many or virtually allthe States present would appear before the Tribunal in anattempt to clarify what they had not made clear whenpreparing the convention.

39. The United States proposal envisaged two circum-stances in which recourse might be had to the InternationalCourt of Justice—submission of the dispute for decision ora request for an advisory opinion. Everyone was aware thatthe moral and legal force of the Court's advisory opinionswas comparable to that of its judgments, or, to put itanother way, that its judgments were hardly more effectivethan its opinions. In any event, however, one might wonderwhat the reaction of the International Court of Justicewould be if confronted with a whole series of ambiguousexpressions. It might deplore the fact that the participantsin the Conference had not drawn up a clearer text. For thatreason, his delegation was opposed to the United Statesproposal and was even more strongly opposed to theNetherlands proposal.

40. Mr. SANYAOLU (Nigeria) said he was of the opinionthat consultations and negotiations offered the best pros-pects for settling disputes, most of which were political innature. The United States proposal might be considered tobe superfluous if the Conference later decided to adopt aresolution based on the United States draft (A/CONF.80/C.l/L.51/Rev.2) concerning incompatible obligations andrights under treaties. His delegation also had reservations onthe Netherlands proposal since it would find it difficult toaccept the idea of compulsory methods for the settlementof disputes.

41. Mr. TORNARITIS (Cyprus) said that his delegationhad always subscribed to the principle that the parties to adispute should spare no effort to arrive at a peacefulsettlement of their differences, a principle which underlaythe Charter of the United Nations and formed thesubject-matter of Article 33. Similarly, article 66 of theVienna Convention on the Law of Treaties providedmachinery to ensure observance of that principle. Hisdelegation therefore welcomed the United States proposalconcerning a new article 39 bis, which envisaged methods°f settlement to which the parties to a dispute might resort.

42- Mr. YASSEEN (United Arab Emirates) said that,although the problem of the settlement of disputes was aEeneral one, it was preferable to resolve it separately in thec°ntext of each treaty, particularly if the treaty was a

general multilateral one. Recent practice showed, moreover,that most codification conventions prescribed particularmethods of settlement; the future convention on successionof States should be no exception to the rule, for there wasno doubt that it raised a number of problems which wouldengender disputes.

43. It would be an easy matter to make provision for thecompulsory jurisdiction of the International Court ofJustice, as the Netherlands delegation proposed, but therewas no certainty that the international community wouldaccept such a solution in the present case. It was thereforenecessary that provisions specifying a flexible method ofsettlement should be incorporated into the text of theconvention, as the United States delegation proposed. He,however, recognized that it was incumbent upon States tostrengthen the authority of the International Court ofJustice; recourse to arbitration should not therefore be thefirst resort as the United States amendment suggested. TheUnited States amendment had the advantage that it allowedStates the choice of withdrawing by declaration from theobligation to have recourse to the International Court ofJustice. As there was no doubt that a number of Stateswould refuse to be bound by compulsory methods ofsettlement, some alternative would have to be found. TheVienna Convention on the Law of Treaties provided forcompulsory recourse to conciliation, but the ConciliationCommission's report was not binding on the parties to thedispute. The United States amendment proposed certainconciliation procedure which was not quite the same as thatprovided for in the Vienna Convention on the Law ofTreaties. Since there was a close relationship between thatConvention and the convention to be adopted by theConference, it would be most practical to adopt the sameprocedure as that adopted by the Vienna Convention onthe Law of Treaties. That would facilitate the implemen-tation of the convention on succession of States in respectof treaties, for it would be possible to have a single list ofconciliators.

44. In conclusion, he expressed the hope that the UnitedStates and Netherlands delegations would hold consul-tations with a view to achieving the desired objective,without losing sight of the realities of international life.

45. Mr. LUKABU-K'HABOUJI (Zaire) said that his del-egation, which had been among the first to stress theabsence from the convention of provisions relating to thesettlement of disputes, welcomed the efforts of the UnitedStates and Netherlands delegations to make good thatdeficiency.

46. The text proposed by the United States was veryattractive at first sight, but it raised some problems: forinstance, paragraph 2 provided that each State party couldat the time of signature or ratification of the convention oraccession thereto declare that it did not consider itselfbound by paragraph 1. However, in introducing his pro-posal, the United States representative had said that it wasdesigned basically to settle disputes which might arise inconnexion with article 30. The Zairian delegation wonderedat what point a State which came into being in thecircumstances mentioned in article 30 and consequently


inherited the duties of the predecessor State, would be ableto make the declaration provided for in paragraph 2 of theUnited States text.

47. He was also concerned to note from paragraph 4 ofthe annex to the convention proposed by the United Statesthat the conciliation commission was to function as soon asthe chairman had been appointed, even if its compositionwas incomplete. That meant that, even though a party tothe dispute might not be represented in the commission, itwould nevertheless be considered to be bound by itsconclusions. Paragraphs, under which the commissioncould recommend to the United Nations that an advisoryopinion be requested from the International Court ofJustice without the agreement of the parties, also seemed tohim difficult to accept. Moreover, for reasons already statedby other speakers, he was also unable to accept the lastsentence of paragraph 6.

48. The text proposed by the Netherlands provided forthe compulsory submission of disputes to the InternationalCourt of Justice, a procedure which was quite unacceptableto the Zairian delegation. He agreed with the representativeof India that disputes arising from the interpretation orapplication of the convention would be more political thanlegal in character and should therefore be settled byarbitration. In that connexion, it was pertinent to mentionthe example of the Charter of the Organization of AfricanUnity, which did not provide for the compulsory sub-mission of disputes to a court but laid down a conciliationprocedure, whose excellent results were known to all.

49. His delegation drew the Committee's attention to thefact that draft resolution A/CONF.80/C.l/L.51/Rev.2, sub-mitted by the United States, also dealt with the settlementof disputes; it wondered what the position would be if theConference adopted both that draft and one of the textsproposed by the United States and the Netherlands.

50. It was essential to find a method of settling disputeswhich was acceptable to all. His delegation supported theproposal of the United Kingdom representative to set up asmall working group on the question.

51. Mr. ECONOMIDES (Greece) said he supported thetext proposed by the United States, because it served topromote international justice, the advancement of whichdetermined the progress of the international community ingeneral. It was true, as had been emphasized, that nego-tiation was the basic means of settling disputes. When,however, negotiations produced no results, only tworemained open: arbitration or war; there could be nohesitating between them.

52. Moreover, all major codification conventions which,like that being elaborated by the Conference, aimed atuniversality and were intended to endure ought to containrules that were as affective and as detailed as possibleconcerning the settlement of disputes which might arise outof their application or interpretation. The United Statesproposal, which at first sight seemed complicated, envisageda procedure that was both comprehensive, since it coveredall disputes, and flexible, since States could choose betweenvarious courses. His delegation therefore supported it.

53. It could also support the text proposed by theNetherlands although it was perhaps more inflexible thanthe United States proposal.

54. Lastly, it supported the United Kingdom represen-tative's proposal to set up a working group to find asolution acceptable to all.

55. Mr. SETTE CAMARA (Brazil) said that there was noscope for innovation in the matter of the settlement ofdisputes: there were a limited number of solutions, and theproblem was to combine them according to a particularorder of priorities. If the precedents in that field werestudied, it would be found, for example, that the optionalprotocols to the Vienna Conventions on Diplomatic Re-lations, on Consular Relations and the Convention onSpecial Mission9 placed recourse to the compulsory juris-diction of the International Court of Justice beforearbitration, and arbitration before the conciliation proce-dure. The Vienna Convention on the Law of Treaties, onthe other hand, provided for the establishment of concili-ation machinery, and the Vienna Convention on theRepresentation of States in Their Relations with Inter-national Organizations of a Universal Character1 ° providedfor the settlement of disputes through consultations (ar-ticle 84) or a conciliation procedure (article 85). In hisview, the Committee should, as suggested by the UnitedKingdom representative, set up a small working group, ofwhich the United States and Netherlands representatives, inparticular, should be members, to study how to bringtogether the components of the existing machinery so as tofind a solution acceptable to all.

56. As to the United States proposal, he thought that areference should be made in paragraph 1 not only todiplomatic channels but also to direct consultations, whichwere of fundamental importance. In its draft annex, theUnited States delegation had, however, proposed a soundconciliation system, closely modelled on the one set out inthe annex to the Vienna Convention on the Law ofTreaties, but with some slight differences. For instance,under the Vienna Convention on the Law of Treaties, theStates parties each nominated two conciliators for aspecified period, which was perhaps preferable to theUnited States proposal of a single conciliator for anindefinite period. Again, the annex to the Vienna Conven-tion on the Law of Treaties provided that the Chairman ofthe Conciliation Commission should be appointed within60 days, whereas the United States proposal specified aperiod of one month, which was riot perhaps altogetheradequate. His delegation had no objection to the lastsentence of paragraph 6 of the annex proposed by theUnited States, which introduced a clause that had notappeared in the Vienna Convention on the Law of Treaties,since it imposed no obligation on the parties: only Stateswishing to do so would make the unilateral declaration inquestion.

9 General Assembly resolution 2530 (XXIV).1 0 Official Records of the United Nations Conference on the

Representation of States in Their Relations with InternationoOrganizations, voL II, Documents of the Conference (UnitedNations publication, Sales No. E.75.V.12), p. 207.


57. The Netherlands proposal seemed a little too inflex-ible. He also had doubts about the advisability of estab-lishing special machinery to settle disputes concerning theinterpretation or application of particular articles.

58. Mr. KAKOOZA (Uganda) remarked that one of theweaknesses of international law was that it lacked themeans of enforcing its provisions. The Conference must,therefore, take care to adopt a method for the settlementof disputes which could be freely accepted by States withno likelihood of their regarding it as a limitation upon theirsovereignty. As pointed out by the representative of Zaire,the only procedure for the settlement of disputes under theCharter of the Organization of African Unity was concili-ation. The Ugandan delegation considered that any othermethod would be contrary to the ideology of the newlyindependent countries. In his view, it was essential that theConference should adopt a procedure for the settlement ofdisputes which took account of individual preferences,allowing States parties to choose the methods of settle-ment, and which was swift.

59. He supported the United Kingdom delegation's pro-posal to set up a working group on the matter. Theprocedure for the settlement of disputes worked out by thegroup should have the features he had mentioned; theywere not sufficiently prominent in the United States andNetherlands proposals, which were unacceptable to hisdelegation.

60. Mr. GUNUGUR (Turkey) said that, however interest-ing they might be, the drafts of article 39 bis submitted bythe United States and the Netherlands were scarcelyacceptable in their present form. The two proposalsprovided that disputes concerning the application or in-terpretation of the convention that were not settledthrough the diplomatic channel should be referred toarbitration or to the International Court of Justice. Inpractice, that procedure would amount to submitting thedispute directly to arbitration or to the jurisdiction of theCourt, as it would be an easy matter for States parties tosay that they had not succeeded in making a settlementthrough the diplomatic channel. It had surely not been theintention of the sponsors of the two drafts thus tominimize in practice the importance of negotiation.

61. Turkey was not opposed in principle to the sub-mission of disputes to the jurisdiction of the InternationalCourt of Justice. However, it considered that the disputesto which the provisions of the convention might give risewould probably be political in character, whereas thecompetence of the Court was strictly juridical. It thereforeseemed much more logical to adopt a procedure by whichthe parties to a dispute first agreed on the content of thedispute before submitting it, by mutual consent, toarbitration, or, if necessary, to the International Court ofJustice. His delegation could not, therefore, accept theUnited States and Netherlands proposals in their presentform. It reserved its right to speak on other proposals, if theq d arose.

The meeting rose at L 05 p. m.

45th MEETINGFriday, 4 August 1978, at 3.50p.m.




PROPOSED NEW ARTICLE 39 bis (Settlement of dis-putes)1 (continued)

1. Mr. TREVTRANUS (Federal Republic of Germany)said that his delegation was strongly in favour of theinclusion in the convention, of an article on the settlementof disputes, since the draft articles contained many pro-visions which could give rise to different interpretations, inparticular the escape clauses, formulae by which theCommission had intended to lay down an internationalobjective legal test of compatibility which, if applied ingood faith, should provide a reasonable, flexible andpractical rule.

2. According to paragraph 14 of the International LawCommission's commentary to article 14, "incompatibilitywith the object and purpose of the treaty" and a "radicalchange in the conditions for the operation of the treaty"were "the appropriate criteria... to take account of theinterests of all the States concerned and to cover allpossible situations and all kinds of treaties" (A/CONF.80/4,p. 51). That view appeared to be shared by the greatmajority of delegations. The bona fide clause occurredfrequently in domestic law, and provided the possibility ofa settlement by a third party if the parties concerned couldnot agree on how a general clause should be interpreted orapplied. The International Law Commission had beencompelled to a large extent to take refuge in generalclauses. That did not imply a criticism of the Commission'swork, only that it had recognized the difficulty of layingdown special rules for all possible cases arising out of thesuccession of States. The infinity of cases and the fact thatthe interests of States were not always identical meant thatsome body had to be responsible for the settlement ofdisputes as a way of providing an impartial settlementwhere no legal rules existed. The very nature of the draftconvention meant that some compulsory procedure wasindispensable. With no recourse to customary internationallaw, some way had to be found of bringing disputes to aconclusion. The relationship between the draft Conventionon the succession of States in respect of treaties and theVienna Convention on the Law of Treaties was a complexone; and thus should ideally be considered as constituting acorpus juris in the sense that in the procedural field therewas no possibility for different solutions. As far as the

1 For the list of amendments submitted, see 44th meeting,foot-note 3.


practical operation of the Convention was concerned, itwould have to include means of control in the form ofsanctions that would prevent abuse or misuse of the ratherwide general clauses.

3. His delegation welcomed the suggestion to form asmall ad hoc group to consider possible solutions, prefer-ably headed by the President of the Conference and withthe participation of the Chairman of the Drafting Com-mittee and the sponsors of the amendments.

4. As regards the criteria to be adopted, a place should begiven to compulsory rules so that it was not possible bymeans of reservations to avoid the need to submit disputesto impartial settlement as a last resort.

5. Mr. RYBAKOV (Union of Soviet Socialist Republics)said that he had been impressed by the statements of manyof the Asian, African and Latin American delegations at the44th meeting, and even of some Western European del-egations, which had expressed their views on the peacefulsettlement of disputes as applicable to the conventionunder consideration. Some representatives, notably those ofthe United States of America, the United Kingdom and theFederal Republic of Germany, had not agreed with whathad been said by the representatives of India, Nigeria,Spain, Swaziland, Uganda and Venezuela, for example,whose statements Ms delegation did indeed endorse, par-ticularly in their reference to Article 33 of the UnitedNations Charter as a fundamental provision to be includedin the convention. Had not the representative of Swazilandbeen right in saying2 that the international community, atits present stage of development, was not yet ready for abinding legal procedure, that the time was not yet ripe forcompulsory jurisdiction by the International Court ofJustice and compulsory arbitration and in emphasizing theneed to observe maximum flexibility in settling disputes?Had the representative of Nigeria not been right in saying3

that the overwhelming majority of disputes, particularly inmatters covered by the convention, could not avoid takingon a certain political flavour? Had not all those delegationsbeen right in stressing that contemporary machinery shouldtake into account existing realities and the free choice byStates as to the means of settling disputes rather than theimposition of some compulsory procedure? He fullyunderstood the representative of Swaziland's objections tothe United States proposal (A/CONF.80/C.l/L.38/Rev.l),and particularly to its first three paragraphs, and hisobjections to the entire arbitration machinery and theintervention of the International Court of Justice. He alsofully appreciated that developing countries preferred the"opting in" system as a basis for the "clean slate"approach, rather than the "opting out" system.

6. He was not prepared to support the view of therepresentative of the Federal Republic of Germany. Thematter was not one of practical implications but of theentire conception underlying the peaceful settlement ofdisputes. A clear legal philosophy required consistency in

See 44th meeting, para. 25.1 Ibid., para. 40.

the matter of disputes; the arguments put forward bydelegations which had doubted the advisability of theprocedure involving the International Court of Justice hadindeed been valid.

7. His delegation fully understood the reference by therepresentative of Nigeria to the link between the twoUnited States proposals, one on the settlement of disputes(A/CONF.80/C.l/L38/Rev.l) and the other on objectionsto succession (A/CONF.80/C.l/L.37/Rev.2). In trying torespond to questions concerning developing countries, theUnited States had said its proposal did not deal withobjections to succession as such but to succession withrespect to treaties;4 the Soviet delegation doubted whetherthat changed anything. The representative of Nigeria hadalso been correct in stating that if the United Statesproposal on incompatible treaty obligations (A/CONF.80/C.l/L.51/Rev.2) were adopted, then it was essential thatall disputes should be covered by that document. Hisargument had been extremely clear.

8. The statements made by representatives of the Asian,African and Latin American countries had in fact containeduseful and constructive ideas for a solution to the problemof the settlement of disputes under the convention. Hisdelegation was particularly interested in the ideas advancedby the represenative of Venezuela,5 in his reference toArticle 33 of the United Nations Charter, and in thesuggestion by the representative of Swaziland6 that dis-putes should be settled by means of negotiation andconsultation, but that the Committee should not discountthe possibility of laying down a procedure in a specialdocument in the form of an annex or an optional protocol,based on the "opting in" system in conformity with theUnited Nations Charter and on the sovereign equality ofStates.

9. His delegation was able to agree with the UnitedKingdom7 proposal to set up an ad hoc working group toconsider the problem, but could not agree with its otherviews. Any document prepared by the Conference shouldtake into account the feelings of the majority, and it wasimportant for all representatives of regional groups to takepart in the consultations on a balanced basis. His delegationwas fully prepared to participate. Some delegations hadreferred to certain articles of the Vienna Convention on theLaw of Treaties being used as possible models for theConference document, but account had to be taken of thefact that not all States were parties to that Convention, andthat the nature of the convention under consideration wassuch that the Vienna Convention on the Law of Treatiesdid not offer any real possibility of solving their presentproblems.

10. Mr. MONCAYO (Argentina) said his delegation feltthat the States parties had two courses of action open to

Ibid., para. 25 Ibid., paras. 14-17.6 Ibid., para. 25.7 Ibid., paia. 24.


them in connexion with the United States proposal(A/CONF.80/C.l/L.38/Rev.l), namely either to recognizethe settlement of disputes through arbitration or byrecourse to the International Court of Justice in accordancewith paragraph 1 of the proposed article, or to excludecompulsory jurisdiction by making the declaration providedfor in paragraph 2.

11. For those States which were reluctant to agree tocompulsory jurisdiction, adherence to the principle of freechoice, which the draft admitted and apparently endorsed,would only be fully achieved by recognizing the need formaking recourse to the conciliation procedure imposed bythe draft voluntary.

12. In that connexion, it could be stipulated that ifnegotiation or any other procedure proved unsuccessful,the parties should attempt to settle the dispute bysubmitting it to conciliation. They should not, however,have a procedure imposed on them whereby certaincompulsory elements were introduced, such as the inter-vention of the International Court of Justice, even in anadvisory capacity, particularly since it was open to eitherparty to the dispute to declare unilaterally that it wouldabide by the recommendations of the report of theconciliation commission.

13. In principle, his delegation agreed with the UnitedStates proposal, but considered that for it to gain generalacceptance, paragraph 4 would have to make recourse tothe conciliation procedure-the detailed rules for whichWere set out in the annex to the proposed article—subjectto the joint wish of the parties. In any event, in order toproduce a text which harmonised divergent views, hisdelegation fully supported the proposal to refer the matterto an ad hoc working group as suggested by the represen-tative of the United Kingdom.

14. Nevertheless, having studied the conciliation pro-cedure as proposed, his delegation wished to make a fewcomments on paragraph 5 of the annex to the United Statesdraft. It conferred on the conciliation commission thepower to recommend to the United Nations that anadvisory opinion be requested from the International Court°f Justice. His delegation felt that it was wrong to confer°n a conciliation commission the power to make rec-ommendations to organs of the United Nations. It shouldbe accorded the power "to request" instead of "torecommend".

15. His delegation had several doubts, some as to thePractical value of such a faculty in itself, and others of amore serious nature. A request to the International Court°f Justice by the General Assembly or the Security Council'or an advisory opinion should be a matter for discussionand should be subject to a vote. The decision to request anadvisory opinion necessarily implied that such an opinionWould be based on the merits of the case in respect of anongoing dispute between two or more States. And althoughj*e Court's opinion might not be binding, the circum-a"ces in which it would be given would weaken the force

,. nature of its advisory role. In the case of specificlsPute, such an opinion would in effect amount to a

n°n-executory judgment.

16. In addition, the opinion handed down would beaddressed not to the conciliation commission, but to theUnited Nations body which had requested it. That gave riseto two questions. Was the United Nations body requestingthat opinion to pronounce on it, or was its role to beconfined to that of a mere intermediary, conveying theCourt's decision to the commission?

17. Moreover, when the commission received theopinion, was it to abide by its terms or would it have thepower to depart from them and establish some other basisfor conciliation?

18. The possibility of recourse to the International Courtof Justice had not been included in the annex to the ViennaConvention on the Law of Treaties and the Argentinedelegation felt that the Conference should seek a solutionwhich excluded from the procedure provided for anyadvisory opinion which in itself was alien to the concili-ation method.

19. Mr. AL-OTHMAN (Kuwait) said the United Statesand Netherlands delegations were to be congratulated ontheir efforts to provide a possible solution to the problemfacing the Conference.

20. The draft convention should form a complete unit,but at present it lacked one element, and that was an articleon the settlement of disputes. Paragraph 1 of the UnitedStates proposal provided for all possible solutions at worldlevel. Paragraph 2 contained no novel idea, because manyinternational conventions already made the same provision.But it was nevertheless useful, as was the provision inparagraph 3. His delegation could not support paragraph 4,however, and considered that the Conference should adoptthe same measures as provided for in the Vienna Conven-tion on the Law of Treaties.

21. The amendment proposed by the Netherlands wassimilar to article 66 of the Vienna Convention on the Lawof Treaties, but it could not be adopted until article 6 andparagraph 3 of article 33 were adopted. He fully supportedthe proposal by the United Kingdom representative that atext acceptable to all delegations should be worked out byan ad hoc working group.

22. Mr. DIENG (Senegal) said that his delegation wouldbe willing to accept the inclusion of provisions or thesettlement of disputes in all international conventions, onthe express condition that the procedure laid down waspragmatic and took account of the fact that the inter-national community could not, by its very nature, be asrigidly structured as an individual State. It would be aparticularly serious omission not to incorporate provisionsfor the settlement of disputes in the articles underdiscussion, since most of those articles represented a fragilecompromise reached after laborious efforts and were,therefore, likely to give rise to differences of opinion.

23. In view of the requirement for flexibility andpragmatism, his delegation was unable to accept theNetherlands amendment, for it provided for automaticrecourse to the International Court of Justice, whereas theStates members of the international community were


reluctant to accept the dominion of any organ. Futher-more, since the amendment was limited to articles 6 and 33of the draft convention, it offered only a partial solution towhat was a general problem.

24. The United States amendment represented an in-genious attempt to preserve both the principle of self-determination and that of continuity. He subscribed,however, to the comments of the representative of Italy8

and of the United Arab Emirates9 concerning the internalcohesion of the proposal. On the other hand, he did notsubscribe to the presumption favourable to the Inter-national Court of Justice that the proposal contained.States parties to the future convention should have notonly the possibility accorded to them by paragraph 3 of theproposal, but also the possibility of declaring at any timethat they did not consider themselves bound by para-graph 1. His delegation was favourably disposed to theprinciple of recourse to conciliation, providing the partiesconcerned were able to retain full freedom in the choice oftheir representatives, the establishment of their mandates,and the schedule for the proceedings.

25. The suggestions concerning conciliation procedurecontained in the United States amendment seemed to him,however, to depart too widely from the correspondingprovisions of article 65 of the Vienna Convention on theLaw of Treaties and of the annex to that instrument. Hewas not sure that, by the innovations it proposed, theUnited States delegation had found the best way ofsimplifying the problem or of obtaining the approval of theCommittee. Paragraph 5 of the annex to the United Statesamendment seemed to provide, albeit in a veiled manner,for automatic recourse to the International Court ofJustice, which was something his delegation could notaccept. It was also to be noted that the paragraph saidnothing specific about the weight which a conciliationcommission should accord to an advisory opinion of theCourt: was it not likely that the expression of a point ofview by such an august body would considerably influencea commission's deliberations? Again the second sentence ofparagraph 6 of the annex to the United States proposalrepresented an innovation, which he was not sure wasappropriate, by comparison with the corresponding pro-vision of the Vienna Convention on the Law of Treaties.Subject to those considerations, his delegation consideredthat the United States proposal could serve as a basis fordiscussion within an ad hoc working group to draft acompromise text.

26. Mr. AL-KHASAWNEH (Jordan) said it was hisdelegation's belief that international agreements ought tocontain provisions for the settlement of disputes and thatbelief seemed to be shared by a large number of States, ascould be seen from document A/CONF.80/5. The need forsuch provisions in the present draft convention had beenfelt by at least some of the members of the InternationalLaw Commission (A/CONF.80/4,pp. 14-15) and the ques-tion at issue within the Committee seemed to be not so

much whether the provisions were required, as what theirspecific nature should be. His delegation agreed with muchof what had already been said concerning the particularprovisions of the draft articles that were most likely to giverise to disputes.

27. The Netherlands proposal was that which his del-egation would ideally like to see in the draft convention. Itwas reasonable to expect States to show their good faith byaccepting that their conduct under agreements that theyratified should be open to third party arbitration andadjudication. But, while its adoption would undoubtedlyenhance the effectiveness of international law, the proposalmust also be viewed in the light of the requirement tosecure the widest possible participation in the futureconvention, and of the legitimate reservations of Stateswith regard to compulsory jurisdiction, especially in re-lation to claims of an essentially political nature. He did notagree with the representative of India10 that disputesrelating to the application and interpretation of article 6and article 33, paragraph 3, could be considered any morepolitical than disputes in fields in which the authority ofthe International Court of Justice had already beenrecognized.

28. The United States proposal was worthy of specialattention as being the more likely of the two draft articlesbefore the Committee to gain general approval. Paragraph 1of that proposal presumed that States parties accepted theprinciple of arbitration and the authority of the Inter-national Court of Justice, while paragraph 2 permittedthem to refute that presumption at any time. Thatprocedure represented an improvement on the provisions ofarticle 66 of the Vienna Convention on the Law of Treaties.The United States proposal was also quite flexible, in that itmade provision not only for arbitration, but also fornegotiations and conciliation. He would leave discussion ofthe details of conciliation procedure to the ad hocworking-group which the United Kingdom representativehad suggested should be established. He did, however, wishto state his agreement with the view of the representative ofthe United Arab Emirates that the final version of thearticle should give preference to recourse to the Inter-national Court of Justice over compulsory arbitrationunless the parties otherwise agreed.

29. Mr. DUCULESCU (Romania) said that in the view ofhis delegation, it was very important that the provisions olthe convention concerning the settlement of disputes mrelation to State succession should be as flexible as possible,so as to take account of the reality of the modern world,which called for co-operation between sovereign States.What was required was a flexible procedure in which Statescould participate on the basis of their sovereign equality-That requirement could be met by insistence on negotiationas the first of the measures designed to bring about tltfsettlement of any dispute.

30. It was the firm conviction of his delegation that evethe most complex problems of international life, htn

Ibid., paras. 30-34.

' Ibid., paras. 42-44. 'ibid., para. 10.


economic, political or juridical could and must be settledthrough negotiation. It was for that reason that hisdelegation wished direct negotiation between the partiesconcerned to remain the essential means of settling thedifferences of opinion relating to State succession.

31. In view of the advantages it offered over other meansavailable to States for the settlement of pending issues,increasing recourse was being had to negotiation. It wastherefore with justification that writers on international lawreferred to a true "principle of the precedence of nego-tiation". Negotiation-the first of the peaceful meansenvisaged by Article 33 of the Charter of the UnitedNations for the settlement of disputes-rightly applied boththe concepts of sovereignty and equality of States andthose of international co-operation and mutual advantage.

32. In the view of his delegation, the provisions for thesettlement of disputes should be drafted so that theyreflected the primacy of negotiations and the consensus ofthe parties to have recourse to every means of settlement.

33. In the light of those considerations, his delegationcould not subscribe to the United States amendment. Thevery interesting draft resolution submitted by the UnitedStates in document A/CONF.80/C.1/L.51 /Rev.2 had led hisdelegation to think that its latest amendment would beginby stressing that negotiations were the rule as regards thesettlement of disputes. That, at any rate, was what must bedone in the draft convention; the primacy of negotiationsshould be stressed in the body of the instrument whilereference to conciliation should be made only, as therepresentative of Venezuela had suggested, in an optionalprotocol or annex.'1 If the possibility of recourse toconciliation was specifically mentioned in an article, itwould then be necessary to give States parties to theconvention the right to enter reservations to the article.

34. While appreciating the efforts of the Netherlandsdelegation to ensure the settlement of disputes, his del-egation realized that it could not accept the proposed text,particularly since it made no provision for the primacy ofnegotiation and agreement by the parties. For thosereasons, he found it unacceptable.

35. He supported the proposal that an ad hoc workinggroup should be established to seek generally acceptableWording for a provision on the settlement of disputes.

36. Mr. GILCHRIST (Australia) said he would remindthe Committee that his Government had acceded to the"ienna Convention on the Law of Treaties and hadaccepted its provisions for the settlement of disputes. ThereWas clearly a great need to include in the draft articlesunder discussion some generally acceptable means ofresolving disputes, for, as the representative of the UnitedK i d m had pointed out, there were at least 17 potential

of uncertainty and conflict in the present text,it must be accepted as a fact of present day

'Plomatic life that some States had strong reservationsbout automatic reference to compulsory arbitration, his

Ibid., para. 17.

delegation agreed with that of Brazil that the Netherlandsamendment was too rigid to gain general acceptance.12

37. The United States proposal, however, allowed forconsiderable flexibility in its operation, particularly byvirtue of paragraphs 2 and 3. His delegation regarded as ofgreat relevance and importance the comments by the UnitedKingdom representative that the mere existence of machin-ery for the adjudication of disputes, as an alternative tonegotiation, would constitute a powerful incentive forparties to settle their disagreements between themselves bynegotiation through the diplomatic channels. With regard toparagraph 2 of the United States proposal, his delegationalso agreed with that of the United Kingdom,13 that it waspreferable to create a presumption that States would wishto be bound by paragraph 1 of the proposal unless theydeclared the contrary. His delegation hoped that theessential parts of the United States proposal would receivewidespread support.

38. Such provisions for the settlement of disputes as theConference might adopt should be an integral part of thefuture convention, rather than an optional protocol orannex. The representative of the United Arab Emirates hadmentioned some valuable precedents in that respect. Itshould, naturally, be made clear that those provisionswould apply equally to all States, whatever the category inwhich they could be considered to fall under the terms ofthe Convention.

39. His delegation would be willing to consider improve-ments to the United States proposal and saw merit in theestablishment of a small group for a detailed study of thoseand any other relevant suggestions. It was convinced thatgenerally acceptable provisions on the settlement of dis-putes were vital to the effective operation of the futureconvention.

40. Mr. RANJEVA (Madagascar) said that the questionof the settlement of disputes was one of the main questionswhich arose in relation to the succession of States. Itseemed to him that the "clean slate" principle constitutedan obstacle to the institution of a mandatory procedure forsuch settlement, since the imposition of an obligatorycourse of action would limit the discretion of new States toaccede or not to the treaties of their predecessors. Thatbeing so, and the necessary principle of the continuity oftreaties notwithstanding, the Netherlands proposal must beruled out as being too rigid. What his delegation would liketo see was a very flexible procedure which would take intoaccount both the "clean slate" and the continuity prin-ciples, but give priority to the former.

41. Having studied the United States proposal in the lightof draft article 6, his delegation considered that it requiredthe international community to make at least an indirectpronouncement on the acceptability under internationallaw of the existence of a new State. It was not clear fromthe proposal, however, who was supposed to decide on thelawfulness of the succession. The proposal seemed to referthe matter to the International Court of Justice, but he

12 Ibid., para. 57.1 3 Ibid., paias. 18-24.


wondered whether the degree of political acceptance ofthat body was as yet such that its decisions would beeffective. His delegation would have preferred the questionof the settlement of disputes to be entrusted not to aninstitution which had not yet gained universal recognition,but to the international community as a whole, through themechanism of negotiations, good offices and mediation,and: in the final instance, conciliation.

42. Paragraph 2 of the United States proposal seemed tomake of arbitration a residual means of settling disputesand was therefore unacceptable for the same reasons asmilitated against the reference of disputes to the Inter-national Court of Justice.

43. In general, his delegation would prefer the mechan-ism for the settlement of disputes concerning successionwith respect to treaties to be linked directly to thecorresponding mechanism in the Vienna Convention on theLaw of Treaties. It could see no justification for establish-ing any special mechanism for the immediate purpose,although it did not exclude the possibility that specialprovisions might be required when dealing with mattersother than treaties. It fully supported the proposal that aspecial group should be established to see whether asolution might be found to the problem now before theCommittee.

44. Mr. BJORK (Sweden) said his Government hadrepeatedly stressed the need to include rules for thesettlement of disputes in the draft Convention, The reasonswere self-evident but he would mention in particular thatthere were a number of concepts in the draft Conventionwhich would undoubtedly give rise to disputes and that theVienna Convention on the Law of Treaties containedsimilar rules. His Government would therefore have had nodifficulty in accepting a mechanism for compulsory juris-diction when consultation and negotiation failed. TheConference could not close its eyes to reality, however, andin principle, therefore, his delegation supported the UnitedStates proposal, which was flexible and was based on thecorresponding provisions of the Vienna Convention on theLaw of Treaties. It also supported the United Kingdomproposal that an ad hoc working group be appointed todraft a text that would meet with general acceptance.

45. Mr. RITTER (Switzerland) said that his Government,which regarded the settlement of disputes as an indispens-able complement to respect for the rule of law, favoured acompulsory system of settlement—compulsory both in thesense that a State would be required to accept theinstitution of proceedings against it by another State, andin the sense that the award or judgment would of necessitybe binding. On that basis, he would have had authority tostate that his Government supported the proposal whichprovided for the system that came closest to absolutecompulsion. There were, however, certain limits whichcould not be exceeded and he therefore preferred to saythat his Government was prepared to go as far as theinternational community, as represented at the Conference,could agree to go.

46. The principle of free choice in the matter ofsettlement of disputes, though eminently worthy, shouldalways remain at the service of an effective settlement andshould never be allowed to become an obstacle to it. Thatmeant that, while the parties should be free to choose themeans of settlement best suited to a given situation, oneparty should not be allowed to persist in its preference for amethod of settlement that had been tried but had failed.Once that happened, there was an obligation on the partiesto seek another method. Moreover, a party should not beallowed to place an obstacle in the way of proceedings bydenying the existence of a dispute.

47. Both the United States and the Netherlands pro-posals were equally acceptable to his delegation, althoughthe former seemed better to reflect the requirements of theexisting international community. He noted that theNetherlands proposal provided for a dual regime in respectof disputes, under both paragraphs (a) and (£>), but won-dered whether it would not be preferable to provide for asingle regime.

48. As to the United States proposal, he shared the viewthat it was a little unusual in that it offered a choicebetween conciliation, on the one hand, and arbitrationcombined with a reference to the International Court ofJustice, on the other. Experience had shown that, evenwhere recourse was ultimately had to arbitration or somejudicial procedure, conciliation could have great practicalvalue as a first step. The United States proposal mighttherefore be improved if it were amended to provide thatall parties should begin by embarking on a conciliationprocedure.

49. The annex to the United States proposal was similarto article 85 of the 1975 Vienna Convention on theRepresentation of States in their Relations with Inter-national Organizations of a Universal Character,14 anarticle which incorporated certain amendments introducedby the Swiss delegation with a view to strengthening thetext prepared by the International Law Commission and toproviding for simple and speedy methods of settlingdisputes. The question was whether those methods could betransposed beyond the confines of diplomatic law. Theachievements of the 1975 United Nations Conference onthe Representation of States in Their Relations withInternational Organizations, and the adoption of article 85without opposition, nonetheless augured well for theoutcome of the present Conference, since they showed thata solution could be reached by both the proponents and theadversaries of compulsory settlement.

50. Paragraph 5 of the annex to the United Statesproposal had caused some surprise among certain del-egations and he too wondered whether such a provision hadbeen included in any other international instrument, pri°r

to the Vienna Convention on the Representation of Statesin Their Relations with International Organizations of a

1 4 For the text of the Convention, see Official RecordsUnited Nations Conference on the Representation of States inRelations with International Organizations, vol. II, Documenthe Conference (United Nations publication, Sales No. E.75-V.12-"p. 207.


Universal Character Convention. The underlying principlehad first been introduced in the International Law Com-mission's draft of the Convention on the Representation ofStates in Their Relations with International Organizationsof a Universal Character. It might therefore be advisable, inthe continuing work on the peaceful settlement of disputes,to refer to the International Law Commission's preparatorywork in that connexion, with a view to ascertaining itsreasoning in the matter and to determining the significancewhich it had attached to the question.

51. Responsibility for the provisions of the final sentenceof paragraph 6 of the annex to the United States proposal,which were also somewhat unusual, rested with the Swissdelegation, on whose initiative special machinery had beendevised at the United Nations Conference on the Represen-tation of States in Their Relations with InternationalOrganizations for the settlement of disputes in diplomaticlaw, with particular reference to conciliation procedures asthey applied to disputes arising out of the representation ofthe sending State to an international organization situatedin the host State. He would, however, hesitate to saywhether such machinery could usefully be extendedbeyond that particular case.

52. He realized that the United States had not includedin its proposal provisions similar to those of paragraph 8 ofarticle 85 of the Vienna Convention on the Representationof States in Their Relations with International Organiz-ations of a Universal Character, providing for any otherappropriate procedure agreed by the parties, because thechoice between conciliation and arbitration meant thatthere was now a guaranteed procedure for the settlement ofdisputes. He none the less considered, particularly whererecourse was not had to compulsory conciliation as apreliminary step, that it would be useful to open the wayfor parties to disputes to adopt the means which seemedmost appropriate to them in the circumstances.

53. Lastly, he agreed that the matter should be referredto a special ad hoc working group which, he would suggestshould be presided over by the Chairman of the Committee.

54. Mrs. DAHLERUP (Denmark) said that, in herGovernment's view, the draft convention might well give riseto disputes that could not be solved by negotiation. Ittherefore endorsed the suggestion already made by certainmembers of the International Law Commission that pro-vision should be included for the settlement of disputes.

^5. Since Denmark recognized the compulsory juris-diction of the International Court of Justice, her delegationwould have had no difficulty in supporting the NetherlandsProposal. At the same time, it appreciated the pragmaticaPproach of the United States proposal, which had arousedgeneral interest. It trusted that, on that basis, the proposedH« hoc working group would be able to arrive at asatisfactory solution.

j* 6- Mr. YACOUBA (Niger) said that any procedure for^ settlement of disputes which embodied elements ofc°ercion would obviously be self-defeating, and he knew ofn° international convention that made settlement by

arbitration or legal proceedings compulsory in the case of adispute arising out of the interpretation or application of itsterms. The United States and Netherlands proposals weretherefore a clear exception to the accepted rule thatcontracting States should be free to choose the procedurewhich appeared to them to be most suitable. Notwith-standing the saving clause in paragraph 2, the United Statesproposal would constitute a dangerous precedent and coulddisrupt the international legal order. It was his delegation'sfirm view that the future convention should not go beyondthe terms of the Vienna Convention on the Law of Treatiesso far as the settlement of disputes was concerned. ThatConvention provided for a faculty-and not an obligation-to choose among several possibilities available to Statesparties.

57. The conciliation procedure proposed by the UnitedStates would have had his delegation's sympathy but forthe unduly restrictive character of its terms, in particularparagraph 4 and the second sentence of paragraph 5.However, while his delegation was unable to give its supportto either of the two proposals, it was not opposed inprinciple to the inclusion in the draft convention ofprovisions for the settlement of disputes and it trusted thatthe proposed ad hoc working group would succeed indrafting a text which took account of the views expressed.

58. Mr. CASTREN (Finland) said his delegation agreedthat the draft convention contained many vague termswhich could give rise to differing interpretations, and that itshould therefore be complemented by an adequate mechan-ism for the settlement of disputes arising out of itsapplication. Negotiation and consultation, though veryuseful as a preliminary step, were not always successful andit would have been best to provide for compulsoryarbitration or legal proceedings. Several States were notready to adopt that method, however, and it was thereforenecessary to think in terms of the less rigid procedure ofconciliation.

59. Of the two proposals before the Committee, hisdelegation preferred that submitted by the United States,which was at once more realistic and more flexible. Henoted, however, that paragraphs 4 and 5, and the lastsentence of paragraph 6, of the annex to that proposal,relating to a proposed conciliation procedure, had been thesubject of some criticism by certain delegations. As thoseprovisions were not particularly important, they couldperhaps be deleted. Alternatively, annex A could bereplaced by the corresponding provisions of the annex tothe Vienna Convention on the Law of Treaties.

60. Lastly, he endorsed the proposal that a small ad hocworking group be appointed.

61. Mr. DE VIDTS (Belgium) said his delegation con-sidered it essential, in a convention that sought to codifythe law on succession of States in the matter of treaties, toprovide for a procedure for the settlement of disputes basedon, or similar to, that laid down in the Vienna Conventionon the Law of Treaties. It was therefore very much infavour of the proposal to appoint an ad hoc working group,which would certainly be able to arrive at an acceptable


solution on the basis of the proposals submitted by theNetherlands and the United States.

62. Mr. AL-NASHERI (Yemen) said he endorsed theremarks of the representative of the United Arab Emirates,and would have great difficulty in accepting either of theproposals submitted by the Netherlands and the UnitedStates. He agreed, however, that an ad hoc working groupshould be appointed with a view to finding an acceptablesolution.

63. Mr. SMALLWOOD (Liberia) said his country, whichhad always favoured the settlement of disputes throughnegotiation, would welcome the inclusion in the draftconvention of some mechanism for settlement along thoselines. The Netherlands proposal, however, was whollyunacceptable to his delegation for the reasons alreadystated by other delegations, particularly in regard toparagraph (a), which provided for the automatic referral ofdisputes to the International Court of Justice whensettlement through the normal diplomatic channels failed.His delegation, while more sympathetic to the UnitedStates proposal, would also have difficulty in acceptingparagraphs 2 and 4 of the Annex to that proposal, whichset forth a proposed conciliation procedure. It supportedthe proposal that the question be referred to an ad hocworking group and would suggest that the African group berepresented by its Chairman, the representative of Niger, orby a person to be appointed by him.

64. Miss GRAINGER (New Zealand), supporting theproposal for the appointment of an ad hoc working group,said her delegation considered it vital to include in the draftconvention some provision for a dispute settlement pro-cedure. It had no difficulty with the Netherlands proposalbut appreciated that that proposal went somewhat furtherthan many delegations could accept. In the circumstances,it considered that the United States proposal offered areasonable compromise.

65. Mr. NATHAN (Israel) said the inclusion of a disputesettlement clause in the draft convention was an obviousnecessity and it sufficed to refer to article 6, article 33 (3)and to the many exception clauses to appreciate only someof the difficulties that were likely to arise.

66. The procedure adopted for the settlement of disputesshould be realistic, to take account of the realities of thepresent-day international community and of its sensitivities,yet at the same time should be as effective as possible. Ingeneral, the United States proposal met those requirements.

67. So far as the proposed conciliation procedure wasconcerned, however, he would have preferred to follow, inwhole or in part, the corresponding provisions of the annexto the Vienna Convention on the Law of Treaties, for thefollowing reasons. In the first place, paragraph 1 of theannex to the United States proposal did not provide for thecase where a State party to a dispute failed to designate aperson to serve as a member of the conciliation com-mission. That omission could cause the entire conciliationprocedure to be abortive; paragraph 4 had been included to

fill the lacuna but it too might lead to very unsatisfactoryresults. Secondly, the last sentence of paragraph 5 whichprovided for an advisory opinion to be requested of theInternational Court of Justice, would make the conciliationprocedure unduly cumbersome, subject it to considerationby political organs such as the United Nations GeneralAssembly, and introduce certain elements of compulsorythird party procedure into the conciliation process by theback door as it were. He did not think that was theintention of the draftsmen. Thirdly, he failed to understandthe meaning of the last sentence of paragraph 6. If theconciliation commission decided in favour of one party,that party would undoubtedly abide by its recommen-dations—but without legal effect, if the losing party did notdo likewise. In his view, the corresponding provisions of theVienna Convention on the Law of Treaties were of a farmore forceful character. Furthermore, the annex to thatConvention provided for interim measures to be indicatedby the conciliation commission and also for third parties toa treaty to be invited to express their opinion before such acommission. Both those provisions were extremely usefuland should certainly be included in the draft convention.

68. Lastly, while the Netherlands proposal was deservingof every praise for its idealistic approach, it had to berecognized that the international community was not as yetready for such far-reaching provisions.

69. Mr. MARESCA (Italy) said he agreed entirely thatmachinery for the settlement of disputes was, in a sense, aguarantee of the rule of law.

70. The conciliation procedure envisaged differed some-what from the traditional understanding of that concept, inthat it was at once compulsory, in the sense that the partieswould be required to bring their dispute before a concili-ation commission, and also optional, in the sense that thefindings of the commission would not be binding on theparties although they would have considerable moral force.

71. The CHAIRMAN said that, if there was no objection,he would take it that the Committee agreed in principle tothe appointment of an ad hoc working group to considerthe inclusion in the draft convention of a provision on thesettlement of disputes. The exact composition of the adhoc working group could be decided at the beginning of thefollowing week.

It was so agreed.


46th MEETINGMonday, 7 August 1978, at 10.40 a.m.



46 th meeting - 7 August 1978 93



PR.OPOSED NEW ARTILCLE 39 bis (Settlement of dis-putes)1 (continued)

1. Mr. POEGGEL (German Democratic Republic) saidthat, in principle, his delegation supported the idea thatStates should be under an obligation to settle any disputesregarding the application or interpretation of the Con-vention by peaceful means. In the light of the fundamentalprinciples of international law, in particular the sovereignequality of States and their obligation to co-operate withone another in peace and settle their disputes by peacefulmeans, it would be helpful to include in the Conventionprovisions imposing on the parties to a dispute an obli-gation to hold consultations and resort to a conciliationprocedure. Provisions of that kind were to be found inother conventions, either as an integral part of theinstrument itself or as an optional protocol, and therelevant articles of the Vienna Convention on the Rep-resentation of States in their Relations with InternationalOrganizations of a Universal Character2 could provide auseful basis for discussion.

2. His delegation was not in a position to support theNetherlands proposal (A/CONF.80/C.1/L.56), because itdoubted whether it was proper to authorize only one partyto a dispute concerning the interpretation or application ofthe Convention to seek a binding decision from theInternational Court of Justice. Moreover, the number ofStates which accepted the compulsory jurisdiction of theInternational Court of Justice had fallen to 45, or less thana third of all States. The United States proposal (A/CONF.80/C.l/L.38/Rev.l), on the other hand, was moreflexible and deserved further discussion, though his del-egation would prefer a procedure that was already more orless accepted internationally. That was one reason why itwas in favour of following the model of the ViennaConvention on the Representation of States in theirRelations with International Organizations of a UniversalCharacter.

3. Lastly, his delegation supported the idea of setting upa small working group to examine the various proposals anddraft a new article.

4. Mr. SCOTLAND (Guyana) said he thought delegationswere bound to have different views on the subject underconsideration; for while some States were reluctant to beconfined within a system that would govern the settlementof future disputes without knowing what the future held instore for them, others argued for a regime to which theycould have recourse and which offered some certainty as to

Foi the amendments submitted, see 44th meeting, foot-note 3.

See 45th meeting, foot-note 14.

the course for settling any dispute arising under theConvention. It was also clear that no delegation wished toexclude the possibility of recourse to the diplomaticchannel. His own delegation considered that any system forthe settlement of disputes adopted within the framework ofthe Convention should take account of the followingelements. The principle of the consent of States should beapplied at all stages of the procedure and it should bestressed that the best way of settling disputes was throughthe diplomatic channel. Account should also be taken ofthe situation in which one party to a dispute was in aweaker position than the other, so one of the parties shouldnot be allowed to accept the recommendations of aconciliation commission and apply them unilaterally. If theparty in the weaker position continued to reject therecommendations of the conciliation commission, a returnto direct negotiations might be the best method of settlingthe dispute once and for all. But it was obvious that, in anysituation, the absence of any dispute-settlement facultywould be prejudicial to the weaker party. The same wasalso true where the dispute-settlement faculty providedneither for automatic and compulsory recourse to judicialproceeedings nor for compulsory implementation of thedecisions given by the body to which the disputes wasreferred. However, it was obvious that the internationalcommunity had not reached a degreee of maturity whichwould lead it to adopt provisions to that effect as a matterof course in treaties such as the draft under consideration.

5. The delegation of Guyana was in favour of a systemfor the settlement of disputes by third parties, butconsidered that not all disputes lent themselves to thattreatment; since international legal procedure was such thatit precluded consideration of non-legal factors having abearing on the case, it should be made clear in article 39 bisthat the dispute in question was a legal one before referringit to a judicial body, even though the body might alwaysgive a preliminary ruling on the legal or non-legal characterof the dispute. The machinery for settlement of disputesprovided for in the convention should therefore takeaccount of the fact that the diplomatic channel was theprinciple means of settlement and must remain open to theparties if other means of settlement failed. It must alsoreflect the need for the consent of the parties to theprocedure envisaged and take account of the possibilitythat three categories of disputes might arise: legal, politicaland mixed i.e., legal and political, notwithstanding thefact that a legal dispute might be influenced by politicalconsiderations. Lastly, a party should not be entitledto apply unilaterally a recommendation which was notbinding on the parties and had not been accepted by theother party.

6. Examining the United States proposal paragraph byparagraph, he said that paragraph 1 was not entirelysatisfactory, because it made no distinction between dis-putes which might be settled by arbitration and thosewhich might not. He also doubted whether notification ofone party by the other was really sufficient for thesubmission of a dispute to arbitration; if it was, he was notsure that the arbitration procedure would yield successfulresults. He felt that the same weakness was inherent in


authorizing one party to refer a dispute unilaterally to theInternational Court of Justice. Paragraphs 2 and 3, on theother hand, raised no difficulties. The conciliation pro-cedure provided for in paragraph 4 could lead to asettlement only if aU parties to the dispute agreed to haverecourse to it. Paragraph 1 of the annex to the Convention,proposed by the United States delegation raised no problemfor the delegation of Guyana, and paragraphs 2 and 3 calledfor no comment. With regard to paragraph 4, however, hecould remember several cases in which the decisions taken bya conciliation commission under those conditions had nothad the expected effect, and he must once again stress theprinciple of the consent of the parties. Paragraph 5 posedseveral questions for his delegation: What would be therelationship between the conciliation commission and theUnited Nations? To which organ of the United Nationswould the conciliation commission apply for transmissionof its request for an advisory opinion to the InternationalCourt of Justice? In what form would it submit itsrequest? Would the request be submitted on behalf of theparties? And what would be the role of the conciliationcommission after the International Court of Justice haddelivered its advisory opinion? Would the Commissionaccept that opinion, disregard it or deviate from it? Hisdelegation could not agree to disputes being referred to theInternational Court of Justice in that way. Paragraph 6contained some positive elements: the six-month time-limit,in particular, would make for quick settlement. While it waswise to provide that the recommendations of the con-ciliation commission would not be binding on the parties, itwas totally unacceptable to his delegation to provide thatone of the parties could unilaterally accept and implementthe commission's decisions.

7. Those comments also applied to the Netherlandsproposal. He was not sure that subparagraph (a) dealtcorrectly with the problems which might be raised byarticle 33, paragraph 3, regarding the reference of disputesto the International Court of Justice. Could the Court ruleon the circumstances in which a new State had enteredinternational life? The lack of any objective criterion fordetermining whether a State had attained independenceunder the same conditions as a newly independent Statewould give rise to serious difficulties.

8. Lastly, he thought it would be useful to set up a smallworking group to consider the elements which should beincluded in the system for the settlement of disputes andreach a compromise.

9. Mr. MUDHO (Kenya) said that the problem of thesettlement of disputes was not peculiar to the draftConvention: both the Charter of the United Nations andthat of the Organization of African Unity containedexplicit provisions on the matter, as also did the ViennaConvention on the Law of Treaties. But the authors of theproposals under consideration had pointed out that thoseprovisions could not be reproduced in the draft convention,because it contained certain concepts, such as incompati-bility with the object and purpose of the treaty, which wereso formulated that differences in interpretation would beinevitable. For that reason, the attitude of certain del-

egations to the draft convention eventually adopted,including that of the Kenyan delegation, would dependlargely on the system adopted for the settlement ofdisputes.

10. His delegation recognized that there was a problemwhich it was the duty of ail delegations to solve in asatisfactory manner. Consequently, in a spirit of compro-mise, it lent its full support to the United Kingdomrepresentative's suggestion, that an ad hoc working groupbe set up to study the problem and submit recommen-dations to the Committee. His delegation was willing tocontribute to the efforts made to find a satisfactorysolution; but if they were to commend themselves to asmany delegations as possible, any recommendations madeto the Committee must take account of the legitimateconcerns of all States and the facts of the modem world.The solution would probably be similar to the proposalmade by the United States delegation, which, althoughunacceptable to his delegation its present form, neverthelessprovided a better basis for discussion than the Netherlandsproposal, which was too idealistic to merit serious study.Lastly, he fully endorsed the views expressed by therepresentative of Guyana on the various aspects of the twoproposals submitted.

11. Mr. LUBIS (Indonesia) said that, like the UnitedStates and Netherlands delegations, he considered it necess-ary to include a system for the peaceful settlement ofdisputes in the future convention, as in any other con-vention, and he commended the efforts made by those twodelegations in that direction.

12. Having carefully studied the United States proposaland the Netherlands proposal, he had come to theconclusion that, if it were necessary to choose betweenthem, he would favour the former, because the Netherlandsproposal was more rigid and tended to neglect politicalrealities, whereas the United States proposal allowed theStates parties to a dispute concerning the interpretation orapplication of the convention more room to manoeuvre,Paragraph 1 of the United States proposal dealt with thevarious stages of the procedure to be followed in thepeaceful settlement of disputes before having recourse tothe International Court of Justice. Paragraph 2 contained areservation clause which, in his delegation's opinion, wasvery important and should be included in the futureconvention and in every other convention.

13. His delegation's basic objection to the United Statesproposal was that it led eventually to the compulsoryjurisdiction of the International Court of Justice, which hisGovernment was not yet able to accept, save in very specialcircumstances. His Government's position was that, for anydispute to be submitted to international arbitration, theconsent of both parties thereto must be secured first, asprovided for in the peaceful settlement clauses of theTreaty of Amity and Co-operation in South East Asia,signed in Bali in February 1976.

14. It was because the United States proposal wouldallow a dispute to be submitted to arbitration without the

prior consent of both parties that his delegation was unable


to support it. Nevertheless, it supported the UnitedKingdom representative's suggestion that a working groupbe set up to examine the question. Whatever new draft wasproposed by that group, his delegation hoped that it wouldinclude the reservation clause contained in paragraph 2 ofthe United States proposal.

15. Mr. MAIGA (Mali) said he believed that a procedurefor the settlement of disputes should be provided for in thefutuie convention, as some members of the InternationalLaw Commission had already suggested. But he did notthink disputes should be submitted to compulsory arbi-tration by the International Court of Justice, since theCourt's arbitration rules were based on the legislation of theadvanced countries and were not suitable for newlyindependent countries. In his opinion, priority should begiven to conciliation, as the Italian representative had verylightly said, and a solution should be sought which tookaccount of the various legal systems in force in theinternational community, for it was only thus that inter-national law would be able to serve the interests of thedifferent members of that community.

16. Mr. YANGO (Philippines) said he considered itnecessary to provide for a procedure for the settlement ofany disputes that might arise out of tile interpretation orapplication of the convention. The Philippines, which hadbeen one of the first States to sign the Charter of theUnited Nations and had accepted the compulsory juris-diction of the International Court of Justice, had alwaysadopted, in the various organs of the United Nations, aposition resolutely in favour of the peaceful settlement ofdisputes. The question of the peaceful settlement ofdisputes was one of the most important items now underconsideration by the Special Committee on the Charter ofthe United Nations and on the Strengthening of the Role ofthe Organization, and his delegation trusted that theGeneral Assembly would hold a special session on thatquestion. It was accordingly grateful to the delegations ofthe United States and the Netherlands for having submittedproposals concerning a procedure for the peaceful settle-ment of disputes. It hoped that the working group set up toexamine those proposals would arrive at a positive solution•n keeping with the Vienna Convention on the Law ofTreaties and acceptable to all States.

17- Mr. KOROMA (Sierra Leone) said that, as theInternational Law Commission had observed in paragraph52 of its introduction to the draft articles, "The task ofcodifying the law relating to succession of States in respect°f treaties appears, in the light of State practice, to berather one of determining within the law of treaties the""Pact of the occurrence of a 'succession of States' thanVlce versa", and consequently, "in approaching questions ofSUccession of States in respect of treaties, the implications

1 the general law of treaties have constantly to be borne inmind." The International Law Commission had further^ that "As today the most authoritative statement ofthe general law of treaties is that contained in the Viennaj;°nvention on the Law of Treaties (1969), the Commission

bound to take the provisions of that Convention as an

essential framework of the law relating to succession ofStates in respect of treaties" (A/CONF.80/4, p. 9).

18. He believed that articles 65 and 66 of the ViennaConvention on the Law of Treaties provided a sufficientmodus operandi for the settlement of disputes that mightarise out of the application of the future convention.Although the Vienna Convention had not yet been ratifiedby all States, no delegation had been opposed, in principle,to article 65 of that Convention. He would suggest that theemphasis should be on conciliation—even on compulsoryconciliation-which was the emerging trend in regard tosettlement of disputes in the various United Nations fora.

19. The different methods of settling disputes all hadtheir advantages and disadvantages, and in choosingbetween them it was necessary to consider what States wereprepared to accept at the present stage of internationalrelations. The method of compulsory conciliation was initself an important development in settlement procedure,and that would seem to be what the majority of States wereprepared to accept at the present time. It therefore seemedpreferable to keep to the provisions of the ViennaConvention on the Law of Treaties.

20. The delegation of Sierra Leone supported the pro-posal that a working group should be set up to study thequestion of settlement of disputes and find a generallyacceptable solution.

21. Mr. ROVINE (United States of America) thankedmembers of the Committee for their comments andsuggestions, and assured them that his delegation wouldtake account of all the views expressed. He was sure thatthe working group would reach a solution acceptable to thegreat majority of delegations.

22. With regard to direct negotiation, his delegation fullyendorsed all that had been said on the value of thatmethod, which was the one most frequently used andpreferred by the great majority of States. It was to thatmethod that recourse should be had in the first instance,and his delegation would have no objection to stressing thatpoint in paragraph 1 of article 39 bis. It did seem necessary,however, to provide for another procedure, in case thenegotiations failed.

23. Some delegations thought it necessary to establish ahierarchy in the methods of settlement of disputes byproviding, first, for negotiation; secondly, for conciliation;thirdly, for arbitration; and, lastly, for reference to theInternational Court of Justice. In his view, however, such aclassification would give rise to difficulties, since it wouldimply, in the last resort, compulsory reference to theInternational Court of Justice, which most delegations wereunable to accept. He pointed out that the United Statesproposal did not provide for compulsory arbitration or forcompulsory reference to the International Court of Justiceand that, under paragraph 2 of article 39 bis, a disputecould only be submitted to arbitration or referred to theInternational Court of Justice for a decision with theconsent of the parties. He recognized that the internationalcommunity was not yet ready to accept compulsory


arbitration, but thought it was necessary to move in thatdirection.

24. Referring to the question raised by the representativeof Zaire, concerning the application of paragraph 2 ofarticle 39 bis in the case of a uniting of States covered byarticle 30,3 he said that if State A united with State B,there would be no problem if both States had made adeclaration under paragraph 2 or if neither of them haddone so. A problem would arise only if State A had made adeclaration, but State B had not. But in that case thesuccessor State A-B was free to choose, and could negotiatea settlement with the other parties to the Convention.

25. In conclusion, the United States delegation waswilling to seek a compromise solution within the workinggroup the Committee had decided to set up.

26. The CHAIRMAN proposed that consideration ofarticle 39 bis should be suspended until the Ad Hoc Groupon Peaceful Settlement of Disputes set up to study thatarticle had completed its task, and that the Committee ofthe Whole should resume consideration of aricle 37 bis.

It was so agreed.

PROPOSED NEW ARTICLE 37 bis (Objections to suecession)4 (concluded)*

27. Mr. NATHAN (Israel) said that the new version ofarticle 37 bis would make a valuable contribution to theprovision of machinery for the application of the con-vention in regard to one of its most complex subjects,namely, objections to succession to a treaty. Unlike thosedelegations which considered that such a provision wouldbe unnecessary if there was an article on the settlement ofdisputes, his delegation believed that article 37 bis wasuseful, since it was intended to settle specific questions. Inthe absence of a procedure under which States would beobliged to give notification of their objection, it would bedifficult to know whether a particular treaty was in force ornot. It should be noted that all objections did notnecessarily give rise to disputes. One example was theobjection raised in regard to the participation of Malawi inthe European Convention for the Protection of HumanRights and Fundamental Freedoms, which was referred toin paragraph 11 of the International Law Commission'scommentary to article 16 (A/CONF.80/4, p. 57).

28. It seemed to him that in so far as the article referredto an objection made by the successor State, it concernedthe case of succession to a treaty within the context ofpart IV of the draft; under part III, a newly independentState became party to a treaty only by notification ofsuccession. If that were indeed so, it should be made clearin the text of article 37 bis.

29. Articles 31 and 37 provided for a procedure wherebynotification had to be made to the depository, if there was


For the amendments submitted, see 43rd meeting, foot-note 9.* Resumed from the 44th meeting.

one, and he saw no reason for departing from that principlein article 37 bis.

30. Since not all objections would necessarily impose anobligation to engage in negotiations or consultations, oreven to have recourse to traditional methods of thesettlement of disputes, the other States parties should firstof all set a time-limit for rejection of the objection. If it wasnot rejected, the treaty should cease to apply as betweenthe objecting State and the State or States which had notrejected that objection. It was only in the event of rejectionof the objection that the procedure of negotiation orconsultation should be initiated.

31. Mrs. SLAMOVA (Czechoslovakia) said she thoughtarticle 37 bis raised difficulties, even in its new version(A/CONF.80/C.l/L.37/Rev.2). The article was linked withthe provisions of part IV and constituted an exception tothe application of the principle of continuity, but, itswording suggested that it also applied to part III. If thatwere so, it would impair the "clean slate" principle and thefreedom of every newly independent State to decide foritself whether or not it wished to participate in the treatiesof the predecessor State.

32. Article 37 bis also raised difficulties in regard toprocedure. In short, it created more problems than itsolved, so her delegation could not support it.

33. Mr. CHUCHOM (Thailand) pointed out that a Statecould be required to co-operate in the performance of atreaty to which it was not a party, and that that treatycould be the subject of a succession between two otherStates. It followed that it should be possible for anobjection to succession to a treaty to be made not only bya State party, but also by a third State. Consequently, thewords "party or parties", in paragraph 2 of draft article 37bis, should be deleted.

34. Mr. NAKAGAWA (Japan) said his delegation wouldsupport the proposed new article 37 bis, which wouldimprove the draft Convention.

35. Mr. BRECKENRIDGE (Sri Lanka) said that, in hisview, article 37 bis upset the balance between the "cleanslate" rule and the principle of continuity. That article, likethe article on the settlement of disputes, concerned theright to challenge a succession. Both were important,especially from the political point of view, but they hadalready been discussed at length and should perhaps be putto the vote. It would be helpful if the Expert Consultantcould explain why the International Law Commission hadnot proposed an article on objections to succession.

36. Mrs. SAHOOLY (Democratic Yemen) said she wasconvinced that article 37 bis would raise more problemsthan it would solve, because it introduced subjectivcriteria. It would allow any State which was a party t0

treaties to decide individually whether succession of a Sta <jto those treaties was incompatible with their object anpurpose and whether such succession would radicalchange the conditions of their operation. Article 37 bis *therefore unacceptable.


37. Mr. MAIGA (Mali) said that the future Conventionshould confirm the process of decolonization. Article 37 bisnot only upset the balance of the draft, but dealt with aquestion which the International Law Commission had leftaside. Since the article could be invoked at any time, itconstituted a further element of instability in relationsbetween States. Consequently, it was unacceptable.

38. Mr. SCOTLAND (Guyana) drew the attention ofrepresentatives to the three examples of application of theprinciple of incompatibility which the International LawCommission had cited in its commentary to article 16(A/CONF.80/4, pp. 57-58). No doubt that enumerationwas not exhaustive, but any other examples that might begiven must at least be of a similar nature. None of the caseswhich the International Law Commission had had in mindseemed susceptible of judicial settlement, but his delegationbelieved they could be settled peacefully by other means. Ifsuccession to a treaty gave rise to objections, it would bethe States parties to that treaty which would exclusivelyassert the right to arrive at a settlement. He did not believethat States parties to a treaty-regime as sensitive as onewhich contemplated an exclusive membership would permitthe question of membership in that regime to be the subjectof judicial scrutiny and binding judicial decision.

39. An analysis of paragraph 1 of the proposed newarticle revealed the following: notification of an objectionmust be given in writing; that such notification could begiven by the successor State or any other State party to thetreaty; and that an objection or the rejection of anobjection must be made within twelve months from thedate of the succession.

40. It was normal practice for a State wishing to givesuch notification to ensure that all the other parties to thetreaty were informed of its intention, either directly orthrough the depository, and to give its notification inwriting. The procedure to be followed was laid down inarticle 77, paragraph 1 (c), and article 78, subparagraph (a),of the Vienna Convention on the Law of Treaties. Articles21 and 37 of the draft gave further particulars concerningthe notification of succession. He felt confident that thesame procedure would be followed by States in notifyingan objection.

41- According to paragraph 1 of article 37 bis, anobjection to succession to a treaty could be notified by thesuccessor State or by the other States parties. Thatprovision was dangerously ambiguous. Why would a suc-cessor State object to a notification of succession? It coulddo so, of course, only if it had been informed that it hadsucceeded to a treaty and did not agree. That situationmight arise for a State which came into being by separationfrom another State, but his delegation did not see how itc°uld arise for a newly independent State. Among thearticles of parts III and IV of the draft that containedsaving clauses on incompatibility or radical changes, in allout two, the initiative lay with the successor State, either tobecome a party to a treaty or ratify it, or to givenotification of succession. In all the articles of part III, theAccessor State was seen as expressing its consent to

become a party to treaties without any assistance from theStates that were already parties. An exception was to befound in part IV, in articles 30 and 34, which concernedthe uniting and the separation of States respectively. Therewas a presumption that treaties continued to be applied. Itwas only in the cases covered by those two articles that theother States parties could notify the new State, or a Statewhich continued to exist after separation of part of itsterritory, that the application of a particular treaty wouldbe incompatible with its object and purpose or wouldradically change the conditions of its operation. Para-graph 1 of the article 37 bis was unacceptable since ittreated the cases coming under parts III and IV of the draftin the same way, and his delegation remained opposed toany attempt to merge the ideas contained in those twoparts.

42. Finally, paragraph 1 of article 37 bis set a time-limitof twelve months from the date of the succession of Statesfor notification of an objection by the successor State and,it would appear too, a time-limit for the rejection of anobjection. Except in article 28, concerning the terminationof provisional application, paragraph 3 of which providedthat reasonable notice for such termination was twelvemonths, the International Law Commission had carefullyavoided specifying time-limits. During the Conference onlythe two amendments relating to article 16 had given rise toa discussion on time-limits, but those amendments had beenwithdrawn, for it had been acknowledged that fixedtime-limits would cause hardship. It could take a State,particularly a newly independent State, a very long time toreview all of the predecessor's treaties that applied to itsown territory, in order to determine which of them itwished to maintain in force. For those reasons, hisdelegation considered that the time-limit specified inparagraph 1 of article 37 bis was unacceptable.

43. Paragraph 2, which concerned recourse to con-sultation and negotiation, presented no difficulty, but hisdelegation reserved its position on paragraph 3 pending theoutcome of the discussion on article 39 bis.

44. Mr. RANJEVA (Madagascar) said that the newversion of article 37 bis was an improvement, in so far as anobjection to succession to a treaty did not put an end torelations between the successor State and the other Statesparties, but obliged them to negotiate. But that improve-ment was not enough, for the notion of an obligation tonegotiate implied that the decision of a successor State tobecome a party to a particular treaty was open todiscussion. If article 37 bis was finally adopted, its appli-cation should be made subject to rigorous conditions.

45. Mrs. BOKOR-SZEGO (Hungary) endorsed theopinion of the delegation of Czechoslovakia. It was notclear whether the United States proposal was intended toapply only to part IV of the draft, or to part III as well, inwhich case it was unacceptable. In view of the linksbetween the proposed articles37 bis and 39 bis, it might beadvisable to suspend consideration of article 37 bis until thead hoc group set up to study article 39 bis had completedits work.

98 Summaiy records — Committee of the Whole

46. Sir Francis V ALL AT (Expert Consultant), replyingto the delegation of Mali, said that the International LawCommission had not considered the question of objectionsto succession. As could be seen from paragraphs 80 and 81of its introduction to the draft articles (A/CONF.80/4,p. 15), the International Law Commission had been willingto consider the question of the settlement of disputes at its27th session and would no doubt have examined thequestion of objections at the same time, but the GeneralAssembly had decided not to wait any longer beforeconvening the Conference.

47. Mr. PEREZ CHIRIBOGA (Venezuela) said that,when the United States delegation had submitted its draftarticle 37 bis, the Venezuelan delegation had supported it,because it had considered that the proposal did notintroduce any new principle or call accepted principles inquestion. It still believed that the idea contained in theproposed article was good and should be embodied in theconvention. In view of the difficulties raised by para-graph 1, however, the Committee would certainly not beable to approve the article as it stood, and it should perhapsbe redrafted by its sponsor. His delegation reserved itsposition on paragraphs 2 and 3 until a decision had beentaken on paragraph 1.

48. It might perhaps be easier to find a solution if thetitle of the draft article were amended so that it no longerreferred to objections, but, for example, to participation ina treaty signed by the predecessor State, when a Stateconsidered that there would be incompatibility with theobject and purpose of the treaty.

49. Mr. VREEDZAAM (Suriname) said he believed thatan objection to succession to a treaty could be made only ifthe treaty itself so provided. Adoption of the United Statesproposal would only add to the existing difficulties inmatters of succession. His delegation could not support theproposal and suggested that it should be referred to the adhoc group set up to study draft article 39 bis.s

50. Mr. MARESCA (Italy) said he did not share thedoubts expressed by many delegations concerning theproposed article 37 bis. It was a procedural article that wasquite appropriate in the draft.

51. As to the question whether the proposed articleapplied to all cases of succession, its position in the draftclearly showed that it would not apply to cases in whichthe successor State was a newly independent State and thatit in no way affected the application of the fundamental"clean slate" principle to such States.

52. Paragraph 2 of the draft article was not superfluous,for as the representative of Madagascar had pointed out, itstated a new obligation: when an objection had been made,a State party could not simply reject it, but must enter intoconsultations and negotiations.

53. Some speakers had held that the successor State hadno reason to make an objection to succession. On the

See 45 th meeting, para. 71.

contrary, in the cases covered by articles 30, 31 and 35,where the principle of ipso jure continuity applied, thesuccessor State must be able to raise an objection when itconsidered that succession was incompatible with theobject and purpose of the treaty or would change theconditions of its operation.

54. Paragraph 3 was not superfluous either, for anobjection was not a dispute, even though it might give riseto a dispute. Paragraph 3, which provided that the generalprocedure for the settlement of disputes should be appliedif no solution was reached within a period of twelvemonths, was entirely logical.

55. Mr. KOROMA (Sierra Leone) said that his delegationwas still opposed in principle to article 37 bis, which wouldhave the effect of depriving newly independent States ofthe benefit of application of the "clean slate" rule. Evenadmitting, for the sake of argument, that the article wasuseful, it still raised difficulties. Part IV of the draftconvention, particularly the provisions relating to theuniting of States, was predicated on the principle of thecontinuity of treaty relations. What would happen if, aftertwo States had agreed to unite, one of them, which had notbeen a party to a particular treaty, found a reason forobjection to succession to that treaty which was not one ofth two reasons specified in article 37 bis, but fell underpart II, section 2, of the Vienna Convention on the Law ofTreaties? Might not the proposed new article have arestrictive effect in that case? Would not the other partiesto the treaty be able to invoke the principle that themention of one or two texts implied the exclusion of theother? If so, why should only two grounds for objection toa succession be specified in article 37 bisl And if thegrounds stated in part II, section 2, of the Vienna Con-vention on the Law of Treaties were considered valid inthat context, what was the use of adopting article 37 bisl

56. Mr. AL-KHASAWNEH (Jordan) said he had beenglad to hear the Expert Consultant confirm his delegation'simpression that there was a link between draft articles 37bis and 39 bis. He therefore supported the proposal by therepresentative of Hungary that consideration of article 37bis should be suspended until the ad hoc group hadcompleted its examination of article 39 bis.

57. Mr. DOG AN (Turkey) said that while he appreciatedthe efforts made by the United States delegation, hethought it would be preferable to adopt a settlementprocedure that was applicable to all disputes, rather thantry to find a specific solution for each individual case. Theobjections which his delegation had raised concerning 3°bis also applied to article 37 bis.

58. Mr. ECONOMIDES (Greece) supported the proposalthat article 37 bis should be referred to the ad hoc groupset up to study article 39 bis.

59. Mr. ROVINE (United States of America) thank1*1

those delegations which had taken part in the discussion <>J

the proposed new article 37 bis. As the proposal (CONF.80/C.l/L.37/Rev.2) had not received ffife


support, his delegation withdrew it, while expressing hopethat when objections to succession to a treaty were actuallymade, the States concerned would settle the matter bynegotiation and that, if the negotiations failed, they wouldapply the procedure for settlement of disputes which hisdelegation hoped the Conference would adopt.

60. The CHAIRMAN asked the delegations concernedwhether they wished to maintain their proposal that article37 bis should be referred to the ad hoc group set up tostudy article 39 bis.

61. Mr. GOROG (Hungary) and Mr. VREEDZAAM(Suriname) replied that, since the United States delegationhad withdrawn draft article 37 bis, they withdrew theirproposal.

The meeting rose at 1 p.m.

47th MEETINGMonday, 7August 1978, at 4.05p.m.




PROPOSED NEW ARTICLE 401

1. Mr. STUTTERHEIM (Netherlands), introducing hisdelegation's proposed new article 40 (A/CONF.80/C.1/L.57), said that several articles of the draft conventionlaid down the same rules as the Vienna Convention on theLaw of Treaties, 1969. But in the course of its discussions,there had been cases where the Committee had not deemedit necessary to restate the rules but had, as in article 19,cited the specific rules of the Vienna Convention whichwere applicable. He would remind the Committee, that,during the discussion on that article, he had proposed thattile Drafting Committee be asked to add a rule aboutobjections to objections.2 The Drafting Committee haddiscussed the matter but had not deemed it necessary tochange the wording of article 19. It had stated in its reportthat general international law, and particularly the rules setout in the Vienna Convention,3 were applicable.

The Netheilands submitted an amendment proposing theWsertion of a new article 40, A/CONF.80/C.1/L.57.

Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties, vol. I, Summary records of•fe plenary meetings and of the meetings of the Committee of theWhole, p. 198, 28th meeting, para. 32.

Ibid., pp. 236-237, 35thmeeting, paras. 16-23.

2. Article 73 of the Vienna Convention on the Law ofTreaties (1969) could be interpreted as excluding theapplication of that Convention to a succession of States.That was why his delegation had submitted its amendment.The text merely set out the idea and if the Committeeapproved it, the Drafting Committee could improve thewording. It might, for example, be preferable to say thatthe rules of the 1969 Vienna Convention would beapplicable, since it was not impossible that a State whichwas not a party to the 1969 Vienna Convention mightbecome party to the convention under consideration.

3. Mrs. BOKOR-SZEGO (Hungary) said that the essentialpoint of the Netherlands amendment was that it filled thegaps in the draft convention in cases where a problem arosewhich was linked with the law of treaties and was notcovered by the provisions of the present draft. Nevertheless,for purely legal reasons, her delegation could not supportthe proposal.

4. It might be anticipated that in the future there wouldbe many cases of application of the present draft conven-tion affecting States which were parties to it but were notbound by the Vienna Convention on the Law of Treaties.In the interests of legal clarity, it would therefore be amistake to refer in general terms in a special article of thepresent draft convention to another convention when theparties to the two conventions were not identical. Certainprovisions of the present draft convention already men-tioned specific articles of the Vienna Convention. However,the idea underlying the Netherlands amendment could beinserted into the preamble of the draft convention. Thus,the preamble might refer on the one hand to customaryinternational law relating to the law of treaties, and on theother hand, it might mention the existence of the ViennaConvention. Both concepts must appear in view of the factthat the Vienna Convention did more than merely codifythe existing customary rules on the subject. She thereforehoped that the Netherlands and other delegations wouldconsider her suggestion, particularly bearing in mind para-graphs 52 and 54 of the International Law Commission'sintroduction to the draft articles (A/CONF.80/4,pp. 9-10).

5. Mr. MONCAYO (Argentina) said that in preparing thepresent draft convention, the International Law Com-mission had filled a gap in the codification of internationallaw which had been explicitly left by article 73 of theVienna Convention of the Law of Treaties. In his del-egation's view, there was no reason why the Conference,having settled individual rules, should not decide that theVienna Convention would govern any matters which werenot otherwise provided for. Hie Netherlands amendmentmerely generalized the criterion embodied in article 19,paragraph 3, in its reference to articles 20 to 23 of theVienna Convention. In general terms, therefore he couldsupport the Netherlands amendment. There was, however,one point which required clarification. The reference to theVienna Convention on the Law of Treaties implied that thegeneral rule of interpretation for the present draft conven-tion would be that embodied in articles 31 to 33 of theVienna Convention. The basic rule was that contained in


paragraph 1 of article 31, namely, that a treaty should beinterpreted in good faith in accordance with the ordinarymeaning to be given to the terms of the treaty in theircontext and in the light of its object and purpose. Thatcriterion made it possible, notwithstanding the ancillaryapplicability of the Vienna Convention, for the solution ofsituations not provided for in the present draft conventionto be sought first in accordance with its own rules beforebeing referred to the Vienna Convention.

6. The draft convention did not consist of a series ofexceptions to the rules laid down in the Vienna Conventionon the Law of Treaties: on the contrary it was a coherentset of rules to be applied in conformity with its own termsand in the light of its own object and purpose. The fact thatthe Vienna Convention specifically excluded succession ofStates from its purview indicated that it was a specialsubject where principles such as self-determination andequality of States should be taken into account as well asthe principle of continuity. Any automatic reference to theVienna Convention would detract from the independenceof the present draft and might prevent a solution inharmony with the latter's own rules—a result which wouldbe contrary to the correct interpretation of article 31 of theVienna Convention itself. Therefore, while supporting theNetherlands amendment, he would suggest for the consider-ation of the Drafting Committee that the word "specific",which appeared in that amendment, be deleted and thatlanguage be inserted to the effect that the solution of anyproblem in connexion with a treaty arising out of asuccession of States should, in the absence of a relevantprovision in the present convention, be referred to theVienna Convention only after it had proved incapable ofsolution when the treaty concerned was interpreted in goodfaith in accordance with the ordinary meaning to be givento the terms of the convention in the light of its object andpurpose.

7. Mr. YASSEEN (United Arab Emirates) said that in hisview the Netherlands amendment was unnecessary inrespect of the rules of customary international law em-bodied in the Vienna Convention on the Law of Treaties.What was more important, however, was that it misrep-resented the position with regard to the new rules estab-lished by that Convention.

8. It was true that rules of customary international lawcontinued to govern those matters for which there wereno specific provisions. Several codification conventionsmade reference to that practice in a paragraph of theirpreambles. That example should perhaps be followed, and aparagraph set aside for that purpose at the end of thepreamble.

9. However, what was more important was that theamendment misrepresented the position as regards the newrules established by the Vienna Convention on the Law ofTreaties. Those rules had the force of conventional rulesonly. Moreover, the Vienna Convention on the Law ofTreaties was not yet in force and, even if it were, theprinciple res inter alios acta implied that such rules wouldapply only to States parties to the Convention, and it was

possible that the States which might become parties to theConvention being prepared by the Conference might not bethe same as those that were parties to the ViennaConvention on the Law of Treaties.

10. Mr. ECONOMIDES (Greece) said that the compre-hensive reference to the Vienna Convention on the Law ofTreaties proposed by the Netherlands was tantamount toincorporating it in the draft convention to the extent that itsupplemented the latter. Such a step caused no difficultiesto liis delegation since Greece was already a party to theVienna Convention, but it might well do so for Stateswhich were not bound by that Convention and whichtherefore might not wish to see the incorporation of thoseof its provisions that were binding only on States parties toit; articles embodying customary international law were ofcourse binding on all. He therefore appreciated the argu-ments which had been put forward by the representativesof Hungary and the United Arab Emirates. However, itmight be possible in the present draft convention tosupplement the general reference to customary inter-national law which was usual in codification conventions bythe statement that those rules of customary law relating totreaties codified in the Vienna Convention would governany matters not covered in the present convention. Hehoped that such a provision would meet the point raised bythe Netherlands representative.

11. Mr. PEREZ CHIRIBOGA (Venezuela) said that, inhis delegation's view, the proposed new article would beeither unnecessary or unduly restrictive, paradoxical thoughthat might seem. If it was unnecessary, then, as pointed outin particular by the representative of the United ArabEmirates, there was obviously no point in including it in thedraft convention.

12. He was, however, more concerned that the proposalperhaps went too far and could thus give rise to difficultiesfor those countries, such as Venezuela, which had notsigned and ratified the Vienna Convention on the Law ofTreaties. As his delegation had repeatedly stressed, it wasessential when seeking to legislate to have constantly inmind that the aim was a viable international instrument,capable of commanding a wide measure of support amongGovernments with a view to its ultimate signature andratification. Consequently, while not denying the import-ance of the Vienna Convention or of its relationship withthe draft convention, his delegation considered it extremelyimportant to ensure, so far as possible, that the fact that acountry had difficulty in becoming, or did not wish tobecome, a party to the Vienna Convention should notdebar it from becoming a party to the convention beingprepared by the Conference. In that connexion, theHungarian representative's suggestion that a reference beincluded in the preamble rather than in the body of thearticles seemed to offer an acceptable middle-of-the-roadsolution.

13. Mr. TREVIRANUS (Federal Republic of Germany)said that the general considerations involved in the compe

topic of the relationship between the Vienna Conventio


on the Law of Treaties and the draft convention were setforth in paragraphs 53-56 of the International Law Com-mission's introduction to the draft articles (A/CONF.80/4,pp. 9-10). Under article 73 of the Vienna Convention,which had purposely been drafted in very general terms, theprovisions of that Convention did not apply to questionsrelating to succession of States as such. In other words, therules laid down in the draft convention would be lexspecialis. That distinction, however, though sound in itself,would not suffice to resolve all the doubts that would arisefrom the simultaneous application of both conventions.

14. A list compiled by his delegation of articles in thedraft convention bearing some relationship to the pro-visions of the Vienna Convention—which list includedarticles 1-5, 7, 8, 10 (paragraph 2), 11, 13 and 14, and theescape clauses scattered throughout the draft-showed that,despite a number of cross-references, the nature of therelationship was not always clear, and he doubted whetherit would be possible, in a simple formula, to define therelationship between the two conventions. Indeed, it wouldseem inadvisable to seek to do so in a draft conventionwhich, in his view, should be seen as an instrumentembodying rules that were lex specialis vis-a-vis the ViennaConvention rather than an all-embracing work of codifi-cation. The International Law Commission had wiselyrefrained from such a concept and had been supported inthat approach by delegations. On that basis, he wouldsuggest that a provision along the following lines might beincluded in the preamble to the draft convention:

Noting that under article 73 of the Vienna Convention on theLaw of Treaties the provisions of that Convention shall not prejudgeany question that may arise in regard to a treaty from succession ofStates, and that accordingly questions that may arise in regard to atreaty from a succession of States and covered by specific provisionsof the present Convention are not governed by the ViennaConvention on the Law of Treaties.

15. Mr. RANJEVA (Madagascar) said that, so far as thesubstance of the Netherlands proposal was concerned, hefeared that a general reference to the Vienna Convention onthe Law of Treaties might discourage those States whichdid not wish to participate in the Vienna Convention fromacceding to the present draft convention. He noted that thelast paragraph of the preamble to the Vienna Conventionprovided that the rules of customary law would continue togovern questions not regulated by its provisions. In otherWords, the rules on succession of States prevailing at thedate on which the Vienna Convention was adopted wouldcontinue to be governed by customary law. Once thoserules had been codified, however, the question could arisewhether they derogated from the Vienna Convention.

16. Fot that reason, while he was grateful to theNetherlands delegation for seeking to fill a possible legallacuna, he considered that it would be preferable to couchany such provision in more general terms, and to provide'hat any question that might arise in regard to a treaty froma succession of States for which the draft convention didn°t lay down any specific provisions should be referred not0 the Vienna Convention on the Law of Treaties but to the

relevant provisions of the law of treaties. That would

encompass both customary law and the provisions of theVienna Convention.

17. He would also suggest that the Netherlands andHungarian representatives be requested to study the bestway of resolving the problem, from the technical point ofview, and that the question then be referred either to theCommittee, for a brief discussion, or to the DraftingCommittee.

18. Mr. PAPADOPOULOS (Cyprus) said that hithertoStates, in their arguments for or against State succession,had referred to rules of customary international law and insome cases, including that of his own country, even togeneral principles of international law. Consequently, sincethe Vienna Convention on the Law of Treaties codified therules of customary international law, his delegation believedthat a general reference to its terms was desirable. It couldtherefore support the idea contained in the proposed newarticle, provided that some suitable wording was workedout in the Drafting Committee. As to the placing of such areference in the present convention, his delegation wasprepared to abide by any consensus that might emerge froma discussion on that point.

19. Mr. MARESCA (Italy) said that the Netherlandsproposal was to be welcomed on two grounds. First, it hadthe noble aim of filling a lacuna-noble because, in terms ofinternational law, any lacuna was a mortal sin. Secondly, itconstituted an act of faith in the Vienna Convention on theLaw of Treaties. It had been said that the ViennaConvention had still not come into force and that manyStates would never become parties to it in any event. Butthe Vienna Convention was not the isolated treatise ofsome jurist, divorced from reality. It existed; and, even hadhis country not ratified that Convention long since, it couldnever have ignored it. The Vienna Convention, like all otherconventions agreed by the United Nations, was a legalreality; it formed an integral part of existing internationallaw and constituted an authority of the highest moralorder. The draft convention could therefore not be con-sidered apart from the Vienna Convention.

20. The proposed new article was, however, defective ona technical point. Although it provided for a purely formalrenvoi, as opposed to a material renvoi, the complexities ofthat doctrine as it applied in the field of conflict of lawswere only too well known. One of the dangers was renvoiinto the void. That, unfortunately, was the case with theproposed new article, for article 73 of the Vienna Conven-tion on the Law of Treaties meant in effect that thatConvention abdicated all responsibility in the matter. It wasdoubtful whether renvoi was possible in those circums-tances. It had been suggested that a suitable reference tocustomary law should instead be included in the preamble.That was a tried and trusted method but there was more tothe modern law of treaties than customary law, and toconfine a reference in the preamble to customary law alonewould be to meet the problem only half way. Conse-quently, he would agree that the Netherlands proposalshould be recast, omitting any mention of the ViennaConvention, to refer in general terms to the law of treaties,

102 Summary recoids — Committee of the Whole

or alternatively, that a wider reference to the law oftreaties, taking account of modern realities, should beincluded in the preamble.

21. Mr. KOROMA (Sierra Leone) said that, while hisdelegation sympathized with the spirit of the Netherlandsproposal, it had certain doubts as to its necessity andvalidity. Assuming that States A and B were parties both tothe Vienna Convention on the Law of Treaties and to theconvention being prepared by the Conference, and that thedispute in question could not be resolved under the termsof the latter, the parties would naturally turn to the ViennaConvention. If that did not provide the answer, thenpresumably they would have recourse to the rules ofcustomary international law, as provided for in the pre-amble to the Vienna Convention. If that thinking werecorrect, would it not be simpler to provide that disputeswhich could not be resolved under the treaty wouldcontinue to be governed by the rules of customaryinternational law? That point was further strengthened inthe case where States A and B were parties to the conven-tion being prepared by the Conference but not to theVienna Convention, or where only one was a party.Obviously, in such cases, the rule embodied in article 34 ofthe Vienna Convention would apply.

22. His delegation considered that, instead of including aseparate article in the draft convention to cover the point,it would be preferable to follow the approach adopted inthe Vienna Convention and refer to the matter in thepreamble.

23. Sir Francis VALLAT (Expert Consultant) said that,while he hesitated to intervene in such an importantdiscussion, the occasion was perhaps one which requiredthe veil of the formal report of the International LawCommission to be drawn aside so that delegations couldhave some insight into the thinking behind it.

24. The question raised in the Netherlands proposal hadnot been considered formally by the Commission but, aswould be seen from Section 4 of the introduction to thedraft articles (A/CONF.80/4, pp. 9-10), members had givenvery serious thought to the matter, and much discussion ofthe topic had taken place privately and also informally inthe Drafting Committee. He himself had been very much infavour of an article along the lines of that proposed by theNetherlands but the more he had discussed the conceptwith his colleagues the more he had become convinced thatit would be virtually impossible to draft such an articlewithout tearing the delicate fabric of the relationshipbetween the draft convention and the general law oftreaties. It was not without relevance that Section 4 of theCommission's introduction to the draft articles was entitled"Relationship between succession in respect of treaties andthe general law of treaties", for the question involved thedraft convention's relationship not only to the ViennaConvention but also to customary law and possibly to othertreaties to which parties to the draft convention wouldlikewise be parties. Consequently, it was the majority viewin the Commission that some extremely complicateddrafting would be required to deal with that relationship

satisfactorily by way of a normative rule that could beincluded in the draft convention. Many members didconsider, however, that the idea might be expressed in thepreamble, but it was not the Commission's practice toundertake the task of drafting preambles for futureconventions.

25. Lastly, as an indication of the lines along whichmembers of the Commission had been thinking, he wouldrefer the Committee to paragraphs 52-56 of section 4 of theintroduction to the draft articles and, in particular, to thefirst sentence of paragraph 54, the second, third and lastsentences of paragraph 55 and to the last sentence ofparagraph 56 (ibid,).

26. Mr. MAKAREVICH (Ukrainian Soviet Socialist Re-public) said his delegation agreed that the proposed newarticle was not altogether necessary. It also considered thatit would bind States that were not parties to the ViennaConvention on the Law of Treaties. Moreover, its termswere already covered by article 5 of the draft convention,which referred parties to the convention to general rules ofinternational law. That article was entirely acceptable to hisdelegation which was therefore unable to support theNetherland's proposal.

27. Mr. ARIFF (Malaysia) said that the Netherlandsproposal apparently sought to link the draft convention tothe Vienna Convention on the Law of Treaties, and had thelaudable aim of filling a lacuna. None the less, he had toagree with the representative of the United Arab Emiratesthat it would serve no useful purpose, particularly in viewof the terms of article 3 of the Vienna Convention.

28. Sir Ian SINCLAIR (United Kingdom) said that theNetherlands proposal had given rise to a very interestingdebate, from which two main points had emerged. First, itwould clearly be difficult, as a matter of treaty law, to statein the body of the draft convention that any situationarising in relation to a treaty from a succession of States forwhich the draft convention did not specifically providewould be governed by the Vienna Convention on the Lawof Treaties. That was so because the States which agreed tobe bound by the draft convention might not be the same asthose which had accepted the Vienna Convention on theLaw of treaties. Secondly, considerable thought must begiven, in connexion with the formulation of the preambleto the draft convention, to the rather delicate question ofthe relationship between customary and treaty law. TheCommittee would have to bear in mind in that respect theprinciple laid down by the International Court of Justice, inthe North Sea Continental Shelf Cases,* that, in certaincircumstances, and in certain very closely defined con-ditions, particular types of multilateral treaties couldgenerate rules of customary international law. It must alsobear in mind that the Court, in its advisory opinion in the

4 North Sea Continental Shelf, Judgment. LC.J. Reportsp. 3.


Namibia case5 and in its judgments in the FisheriesJurisdiction cases6 had said that certain provisions of theVienna Convention on the Law of Treaties were generallyto be regarded as declaratory of general international law.The preamble must indicate the precise relationship be-tween customary international law, those rules of generalinternational law that were embodied in the ViennaConvention on the Law of Treaties, and the rules in thedraft convention itself. In other words, it would bedesirable and, indeed, necessary to state in the preamblethat any question arising from a succession of States inrespect of treaties that was not specifically governed by thedraft convention should be considered as subject to therules of customary international law, including any relevantprovisions of the Vienna Convention.

29. Mr. MIKULKA (Czechoslovakia) said that his del-egation saw no need for an article such as that which wasnow proposed. In view of the provisions of article 73 of theVienna Convention on the Law of Treaties, the proposedarticle 40 could only be a source of uncertainty. Further-more, if the Vienna Convention became in general asubsidiary text to the draft convention, which would be thecase if the Netherlands proposal were adopted, the necess-ary division between the field of succession in respect oftreaties and the field of treaty law would be lost. TheVienna Convention on the Law of Treaties could be appliedonly to questions concerning that law, and not to mattersconnected with the law of succession, the rules of whichwere often different from those in the Vienna Convention.

30. Mr. STUTTERHEIM (Netherlands) said that hisdelegation would not have made its proposal had it beenaware of the difficulties which the International LawCommission had encountered in trying to draft a similararticle. The basic reason why the proposal had been madewas his delegation's fear that it might one day be claimedthat a rule in the Vienna Convention could not be appliedto State succession. In view of the apparent generalagreement that the Drafting Committee should discuss thatpoint in connexion with the preamble to the draftconvention, his delegation formally withdrew its proposal.

31- The CHAIRMAN said that, if there was no objection,he would take it that the Committee agreed that theDrafting Committee should attempt to cover the pointraised by the Netherlands proposal in the preamble to thedraft convention.

It was so agreed.

ARTICLE 33 (Succession of States in cases of separation ofparts of a State)7 (continued)*

32. The CHAIRMAN invited the Committee to resumeits consideration of article 33, with the assistance of theExpert Consultant.

33. Sir Francis VALLAT (Expert Consultant), referringto the clarifications concerning paragraph 3, which therepresentative of Zaire had requested8 of the Committee,said that the problem posed by the paragraph was not oneof deciphering its wording as such, but rather of proph-esying in what cases the provision would apply. As with anytreaty provision, the paragraph must be interpreted in thecontext of the treaty as a whole and, in particular, of thearticle in which it appeared. Article 33 concerned the treatyrelations of the successor State or States formed when partor parts of a State separated from it. Paragraphs 1 and 2 ofthe article had to do with the continuity principle andexceptions to it, while paragraph 3 set aside that principlein favour of the "clean slate" principle. The essentialbalance in the draft convention was between those twoprinciples, and the International Law Commission hadconsidered it desirable to adhere to one or other of them inparticular cases, and not to try to innovate.

34. While that was clear, problems arose with paragraph 3when it came to the test for cases in which the "clean slate"principle would apply, for that test was not clearly defined:since the draft convention in general held that the "cleanslate" principle would apply to newly independent States,paragraph 3 not unnaturally stated that it would also apply"in circumstances which are essentially of the samecharacter as those existing in the case of the formation of anewly independent State".

35. The key to how the International Law Commissionhad come to adopt that position lay in what, in ] 972, hadbeen articles 27 and 28,9 and in the reservations whichsome members of the Commission had expressed to thethen article 28, paragraph 2. The former article 27 hadconcerned the dissolution of a State and had applied thecontinuity principle in the event of such dissolution. Theformer article 28 had concerned the separation of part of aState and had, in its second paragraph, applied the "cleanslate" principle to a new State emerging from such aseparation, which had been considered as being in the sameposition as a newly independent State. However, somemembers of the Commission had questioned whetherparagraph 2 should apply automatically and in all cases tothe separated State and had reserved their position on thatpoint until the Commission had received the views ofGovernments.10 Some Governments had indeed raised

Legal Consequences for States of the Continued Presence ofSouth Africa in Namibia (South West Africa) notwithstandingpurity Council Resolution 276 (1970), Advisory Opinion. I.C.J.KePorts 1971, p. 16.

Fisheries Jurisdiction (United Kingdom v. Iceland), Juris-™ti°n of the Court, Judgement. LC.J. Reports 1973, p. 3, and

Isheries Jurisdiction (Federal Republic of Germany v. Iceland),Ju"sdiction of the Court, Judgment. LC.J. Reports 1973, p. 49.

7 For the list of amendments submitted, see 40th meeting,foot-note 9.

* Resumed from the 42nd meeting.8 See 41st meeting, para. 60.9 Yearbook of the International Law Commission, 1972, vol. II,

pp. 230 ef seq., Document A/8710/Rev.l, chap. II, sect. C.1 ° Ibid., p. 298, article 28, para. 12 of the Commentary.

104 Summary lecoids - Committee of the Whole

doubts concerning the soundness of the concept containedin the former article 27 and of the distinction betweencases made in the former articles 27 and 28. Of thosearticles, article 27 had been largely based on old precedentsin relation to the union of States, while the Commissionhad found little State practice in the United Nations periodto serve as a basis for article 28.

36. In those circumstances, the International Law Com-mission had concluded, at its 26th session (A/CONF.80/4,pp. 104-106), that there was no distinction of principlebetween dissolution and separation of part or parts of aState and that the distinction which had been considered toexist in that respect had been based on out-modedterminology and was not in accordance with either themodern constitutional structure of States or current doc-trine. The Commission had, therefore, rearranged thesubject-matter of the former articles 27 and 28 in thepresent articles 33 and 34j which laid down uniform rulesfor all cases of separation. It had decided that, in instancesof separation, there was, in principle, always a continuationof the legal nexus between the new State and the territorywhich had existed prior to the succession, and that it wouldtherefore be contrary to the doctrine of the sanctity oftreaties to apply the "clean slate" principle except inspecial circumstances. Such circumstances would arise if aterritory which was not technically dependent secured itsindependence from the rule of the imposing Government incircumstances comparable to those of the formation of anewly independent State.

37. The commentary to article 33 and 34 (ibid.,pp. 99-106) showed that most of the examples of separ-ation prior to the United Nations era concerned Stateswhich had emerged from a colonial or quasi-colonialsituation, and that most cases of separation in the UnitedNations period concerned States which had emerged from acolonial, trusteeship or protected status through the gate-ways of Chapters XI and XII of the Charter of the UnitedNations. He submitted that, in the body of practice and lawwhich had developed in the field, at least some guidancecould be found for rules to be applied to States formed inthe circumstances to which article 33, paragraph 3, re-ferred. It would be invidious to give specific examples, butit should be clear that there might be cases, such as that inwhich a State emerged after a long struggle for indepen-dence, in which it would be contrary to nature to apply theprinciple of continuity.

38. He was conscious of the imperfections in the draftingof article 33, paragraph 3, as proposed by the InternationalLaw Commission and would welcome suggestions for itsimprovement. He would, however, regret, any reversion tothe doctrine which the International Law Commission hadadopted in 1972, and in particular any return to theuniversal application of the "clean slate" principle that hadbeen advocated in the former article 28, paragraph 2.

why the first of the similar exceptions mentioned inarticle 30, paragraph 1 (a), and article 33, paragraph 2 (a),would apply if "the other State party or States parties" soagreed, whereas the second of those exceptions wouldapply if "the States concerned" so wished. Did the term"the States concerned" include States which, for somereason or other, had an interest in the treaty in question,but which were not parties to it?

40. Mr. KASASA-MUTATI (Zaire) said that, followingthe Expert Consultant's explanation of the reasons behindthe proposal made in article 33, paragraph 3, his delegationfelt that its fears that the inclusion of that provision in thedraft convention would be tantamount to incitement tosecession within even a unitary State were at least partlyjustified. He therefore wished to know what would be theeffect on the draft convention if that provision weredeleted.

41. Sir Francis VALLAT (Expert Consultant) said thathe could not recall any particular reason for the differencein working mentioned by the representative of Venezuela,although a similar difference had existed between theformer articles 27 and 28. He suggested that the matter beinvestigated by the Drafting Committee and that that bodyrefer the question to the Committee of the Whole if itconsidered the discrepancy to be based in any way ongrounds of substance.

42. As to the question put by the representative of Zaire,his personal view was that, if the principle of continuitywas to apply in all cases of separation, there would be somecases in which article 33 would be unworkable. Theexception provided in paragraph 3 of that article wasnecessary to cater for cases similar to that in which aterritory broke away from a parent State or cases in whichit would, as he had already said, be contrary to nature toapply the continuity doctrine.

43. Mr. KOH (Singapore) said he would remind theCommittee that, as he had pointed out,11 Singapore was apractical example of the application of the exceptionprovided for in article 33, paragraph 3.

44. Mr. USHAKOV (Union of Soviet Socialist Re-publics), observing that paragraph 1 of article 33 stated thatthe article would apply "whether or not the predecessorState continues to exist", asked the Expert Consultant forhis personal opinion concerning the need for paragraph 3 ofthe article in the event of the complete dissolution of aState. Would not the retention of that provision have theeffect of extending the "clean slate" principle to all parts 01

the predecessor State?


39. Mr. PEREZ CHIRIBOGA (Venezuela) asked the Ex-pert Consultant whether there was any particular reason See 42nd meeting, para. 21.


48th MEETINGTuesday, 8 August 1978, at 11 a.m.




ARTICLE 33 (Succession of States in cases of separation ofparts of a State)1 {continued)

1. Sir Francis VALLAT (Expert Consultant), replying toa question put by the representative of the Soviet Union,2

said that from the wording of article 33 and the commen-tary to it, it was clear that paragraph 3 was not intended toapply to the case where a predecessor State ceased to exist.Consequently it would not apply to the case of dissolutionof a State. In paragraph 32 of its commentary to article 33,the International Law Commission had stated: "By contrastwith cases under paragraph 1 where the predecessor Statemay or may not survive the succession of States, in cases towhich paragraph 3 applies, the predecessor State wouldalways continue to exist." (A/CONF.80/4, p. 105).

2. Mr. ROVINE (United States of America) said that hisdelegation had fully supported paragraphs 1 and 2 of article33 but had expressed doubts about paragraph 3. Thosedoubts had been confirmed by the discussion on the article.Paragraph 3 presented difficulties from the theoreticalviewpoint, from the political viewpoint and from theviewpoint of secession generally.

3. From the theoretical viewpoint, the "clean slate"principle, as conceived by the International Law Com-mission, seemed to be based essentially on the concept ofconsent. Since a colonial territory had not necessarily givenits consent to be bound by the treaties applicable to it,other States could not, once that territory had acceded toindependence, insist on their treaty rights. In that case, theapplication of the "clean slate" principle was only just.Logically, the circumstances in which the treaties had beenconcluded should have been taken into account but thatwould have constituted interference in the domestic affairs°f States. For that reason, the International Law Com-mission had found itself obliged to shift the emphasis toanother question, that of the circumstances in which a part°f a State separated and became a State. That was an easierquestion, but it was perhaps not the right one. In hisdelegation's view, paragraph 3 did not really square withJoe "clean slate" concept as it appeared in articles 15 to 29.i o take his own country as an example, during the periodAllowing the creation of the United States of America, it

For the list of amendments submitted, see 40th meeting,[°ot-note 9.


was the South which provided the leadership of the countryand negotiated international agreements. Eighty-five yearslater, the South had separated from the Union in circums-tances which, it could be argued, were essentially of thesame character as those existing in the case of theformation of a newly independent State. Should the rest ofthe international community then have forgone its rights,although it was in fact the South which had concluded thetreaties whose objections it now wished to evade?

4. From the political viewpoint, it might be consideredthat it was not realistic that a successor State should bebound by the treaty obligations of the predecessor State, asthe Expert Consultant3 had observed at the previousmeeting. But neither was it just that a great number ofStates should lose their treaty rights. Thus a very seriouschoice had to be made. Perhaps it was better to be unjust toone State than to a very large number of States.

5. From the viewpoint of secession in general, it wasobvious that paragraph 3 of article 33 was not intended toencourage the separation of parts of a State. Nevertheless, ithad the effect of making secession a little easier for theseceding State in the event of a secession of that kind.Consequently, the question might be asked whether theConference could adopt a provision which would facilitatesecession in the case of separation of parts of a State.

6. For those three reasons, and unless some very convinc-ing arguments were put forward in support of paragraph 3,his delegation would vote against it, if it was put to thevote.

7. Mr. DOGAN (Turkey) said he would like the ExpertConsultant to explain the purpose of paragraph 3 of article33 in the light of the following question: could the Stateswhich had emerged after the First or the Second World Warinvoke that provision? Would States which had becomeindependent through separation of part of the territory of aState enjoy the benefit of the "clean slate" rule, irrespec-tive of the date of their accession to independence and theway in which they had become independent?

8. If article 33 was put to the vote, each of its paragraphsshould be voted on separately.

9. Sir Francis VALLAT (Expert Consultant) said that,under the non-retroactivity rule laid down in article 7,paragraph 3 of article 33 would not apply to States whichhad become independent after the First or the SecondWorld War. On the other hand, it might be that part of theterritory of a State which had thus acceded to indepen-dence might secede, in which case article 33 would apply.

10. The rule stated in paragraph 3 of article 33 was notbased either on established practice or on precedent; it wasa matter of the progressive development of internationallaw rather than of codification. Paragraph 3 of article 33was thus a saving clause for the application of thecontinuity principle. It was for the Conference to decidewhether to retain the provision or not.

See 47th meeting, paias. 33-37.


11. Mr. RYBAKOV (Union of Soviet Socialist Republics)said that, with the exception of article 33, paragraph 3, thearticles drafted by the International Law Commission hadbeen generally well received by the Committee of theWhole and had not given rise to any lengthy discussions.When the International Law Commission had draftedparagraph 3 of article 33, substantial differences of opinionamong its members had become apparent. Some hadexpressed doubts as to the usefulness of the provision.Those doubts, which he shared, had not been dispelled bythe explanations given by the Expert Consultant. He wasmore than ever convinced that in some cases the paragraphcould do harm. Moreover, it was completely at variancewith the general trend of the draft with regard to therespective spheres of application of the "clean-slate" ruleand the continuity principle. In the case of Singapore, itwas to be noted that the "clean slate" rule had been appliedto the treaties of the British Empire with the exception ofthe Malaysian treaties. All the problems which had arisen atSingapore had been settled as provided in article 15 of thedraft. It might be considered that paragraph 3 of article 33was unnecessary.

12. There was an internal contradiction in article 33between paragraphs 1 and 2 on the one hand and para-graph 3 on the other. Paragraphs 1 and 2 provided one andthe same regime for cases of separation of a part of theterritory of a State or dissolution of a State, whereasparagraph 3 provided a totally different regime for cases ofseparation of a part of the territory of a State. But thedistinction between dissolution and separation was verydifficult to draw and was bound to give rise to disputesbetween States. It was to be feared that the case dealt within paragraph 3 would cause a great many difficulties inpractice. Furthermore, the paragraph did not cover the casewhere a part of the territory of a State separated from it inorder to unite with a newly independent State. In preparingits draft on succession of States in matters other thantreaties, the International Law Commission had recon-sidered those questions of the various types of successionand discussed them at great length. They were too delicatefor the Committee of the Whole to think of settling them atthe present stage of its work. In the circumstances, hisdelegation could only endorse the view of those delegationswhich thought that paragraph 3 of article 33 raised moreproblems than it solved and should consequently bedeleted.

13. Mr. VREEDZAAM (Suriname) said that before ac-ceding to independence in 1975, in circumstances essen-tially of the same character as those existing in the case of aformation of a newly independent State, his country hadbeen first a Dutch colony and then a part of the Kingdomof the Netherlands. Paragraph 3 of article 33 would havebeen applicable to the succession of States caused by theaccession of Suriname to independence; furthermore the"clean slate" principle had been applied in that case.Consequently, he fully supported paragraph 3.

14. Mr. SHEIKH (Pakistan) said that the discussionshowed that paragraph 3 deserved careful thought. Mostdelegations already appeared to be in favour of deleting it.

In the circumstances, each paragraph of article 33 should bevoted on separately. His delegation's amendment to para-graph 3 (A/CONF.80/C.1/L.54) dealt specifically with thecase where an independent State separated into two States,like Pakistan and Bangladesh. His delegation would notpress its amendment if paragraph 3 were deleted.

15. Mr. SAHOVIC (Yugoslavia) said that his delegationfound article 33 acceptable, although it appreciated thedifficulties paragraph 3 could cause for certain delegations.The reason why the International Law Commission hadincluded article 33 was to take account of the variety ofcircumstances in which a part of the territory of a Statemight separate and become a State, for the future conven-tion must deal with all the practical problems that mightarise. Not only was paragraph 3 an exception to para-graph 1, it was a genuine saving clause. The InternationalLaw Commission had been right to provide, in paragraph 3,for the exceptional application of the "clean slate" rule.Perhaps the wording of the paragraph was not entirelysatisfactory and the Drafting Committee could improve it.

16. Mr. DIENG (Senegal) said that his delegation hadalready expressed its support for paragraphs 1 and 2 ofarticle 33 and its doubts regarding paragraph 3.4 Theconditions in which a part of the territory of a Stateseparated from it to become a State on its own continuedto cause problems. Nowhere in either the draft conventionor the commentaries of the International Law Commissionwas any detailed information provided about the circum-stances referred to in paragraph 3. In the absence of a cleardescription of those circumstances, paragraph 3 rather lentitself to varying and conflicting interpretations. Whereas inthe third and fourth parts of the draft it was quite clear towhat cases the "clean slate" and the ipso jure continuityprinciples applied, the situation appeared to be veryconfused in paragraph 3, which established a third, hybrid,category of States, quite distinct from that of Statesemerging as a result of decolonization and that of Statesborn of the separation of a part of the territory of a State.In his opinion, it was impossible to produce a clearer text,because the situation was itself confused. The paragraphshould therefore be deleted. He supported the proposal fora separate vote on paragraph 3.

17. Mr. AHIPEAUD (Ivory Coast) said he agreed thatparagraph 3 could encourage separation and secession andinjure the rights of creditors. He endorsed the argumentsput forward against the retention of the paragraph andwould vote for its deletion.

18. Mrs. BEMA KUMI (Ghana) said that if paragraph 3were deleted, it would not harm the convention as a wholein any way. If they tried to cover all possible cases o*succession of States, they would create more problems thanthey could solve. Paragraph 3 did not directly encourag6

secession, but there was no doubt that it would facilitatematters for separatists once they had achieved their &&'

See 41st meeting, paras. 43-46.


They could easily reject obligations imposed on them bytreaties, particularly economic treaties, on the pretext thatthe part of the territory which had seceded had become anewly independent State, and consequently was not boundby such treaties. It was clear that the problem was more ofa political one, but as the case of newly independent Stateswas dealt with in article 15, paragraph 3 could easily bedeleted.

19. Mr. YANGO (Philippines) said the argument thatparagraph 3 of article 33 could encourage secession was avery powerful one, and very damaging, because it was notthe policy of members of the United Nations to encouragesecessions. His delegation would therefore vote accordingly.His delegation asked that, when the separate vote was takenon paragraph 3, it should be by roll-call. Also paragraph 3would have to be voted on before the amendment byPakistan.

20. Mr. BRECKENR1DGE (Sri Lanka) said he regrettedthat the International Law Commission had used ananalogous description in paragraph 3 of article 33. If, as theExpert Consultant had said, the situation dealt with in thatprovision had the characteristics of a colonial, trusteeshipor protected territory and of a dependency which had had aprolonged struggle for independence, it might be wonderedwhether it was the analogy or the action itself that wasunder discussion. Was not the situation of such territories infact identical with that of the newly independent States towhich the "clean slate" principle applied?

21. The General Assembly in its resolution 1541 (XV)had indicated the forms in which the decolonizationprocess could be completed: the emergence of a territory asa sovereign independent State, free association with anindependent State, or integration with an independentState. The act of separation was never mentioned and wassubsumed in the emergence of the State, no matter whatthe form or method of the emergence. Separation in thatcontext was dealt with in Part III of the draft convention.It was a pity that the General Assembly had not given anyprecise guidance in the matter. If the International LawCommission had examined the question in the light ofthose considerations, it would not have established thatunfortunate link between the provisions on the separationof States in section 5 of Part III of the draft articles (Newlyindependent States formed from two or more territories)and section 3, and the confusion would have been avoided.

22. The International Law Commission had endeavouredto balance the "clean slate" principle against that ofcontinuity, and it had been no part of its task to determinewhen decolonization had taken place. That, however, waswhat their analogy in paragraph 3 of article 33 led to, and itdid no service at all to the States in that situation,Singapore and Bangladesh, for example.

23. The Expert Consultant had drawn the Committee'sattention to the fact that the International Law Com-mission had not only sought to codify existing practice, butt o contribute to the progressive development of inter-national law. But what was the progressive development"tot resulted? It was clear from the comments by

Singapore and Bangladesh that those countries had appliedthe "clean slate" principle. The analogy drawn in para-graph 3 was not needed therefore and only served toemphasize the danger of secession, which was not the point,so that States hesitated to endorse the paragraph.

24. Resolution 742 (VIII) dealt with the circumstances inwhich Administering Powers were obliged under article73 (e) of the Charter of the United Nations to provideinformation on the Territories they administered. In theannex to the same resolution, the General Assembly hadalso attempted to define the factors to be taken intoaccount in deciding whether a territory was or was not aTerritory whose people had not yet attained a full measureof self-government. On the subject of paragraph 3, ofarticle 33, Bangladesh, among other States, had pointed out(A/CONF.80/5, p. 255) that a definition of newly indepen-dent State was needed in article 2, which would cover allcases. Resolution 742 (VIII) referred to the independentconduct of international relations as a characteristic ofindependence. That aspect of the question might have to belooked at at the appropriate time in relation to article 2.

25. Mr. SANYAOLU (Nigeria) said he would like to askthe Expert Consultant whether or not the formulation bythe International Law Commission of the rule in para-graph 3 of article 33 took account of the definition ofnewly independent State given in draft article 2.

26. Mr. MARESCA (Italy) said he recognized that para-graph 3 of article 33 was open to controversy but he didnot entirely share the fears expressed by many delegationsduring the discussion. A legal text could never provoke arevolution or start a civil war. The real weakness ofparagraph 3, and the reason why the Italian delegationhesitated to support it, was that it was illogical, as there wasan absolute contradiction between the paragraph as it stoodand the definition of newly independent State given inparagraph 1 (/) of article 2. Take the case of an islandwhich separated from the territory of a State; could thatisland, which until its independence had participated in thepolicy-making and diplomacy of the country to which ithad belonged, be placed on the same level as a newlyindependent State? Those were the reasons why, from thevery beginning of the discussion on article 33, he had notbeen able to support paragraph 3.

27. Sir Francis VALLAT (Expert Consultant), replyingto the question by the representative of Nigeria, said thatthe International Law Commission' had not endeavoured toput States emerging as a result of the separation of a part ofthe territory of another State and newly independent Stateson the same level, and had confined itself to drawing ananalogy, clearly recognizing that the situation was not thesame. He would draw attention to the last part of paragraph32 of the International Law Commission's commentary toparagraph 3, where it was stated that "in cases to whichparagraph 3 applies, the predecessor State would alwayscontinue to exist. That was implicit in the idea of"dependency" which provided the key to the meaning of"newly independent State" as defined in article 2, para-graph 1 (/)" (A/CONF.80/4, p. 16). The International Law


Commission had not intended that to cover the dependentnature of the part of the territory of a State which hadseceded, but to indicate that, in some circumstances, thepart which had seceded could be in a situation comparableto that of a newly independent State. The InternationalLaw Commission had therefore suggested including anescape clause in the continuity rule.

28. Mr. FARAHAT (Qatar) said that the discussion hadrevealed the concern felt by delegations at the exception tothe "clean slate" principle in the case of separation of apart of the territory of a State, in paragraph 3 of draftarticle 33. That paragraph was liable to prejudice thestability of international commitments. Perhaps theDrafting Committee should review the wording and studythe cases in which States formed by the separation of a partof the territory of a State were in a similar position to thatof newly independent States.

29. Mr. ARIFF (Malaysia) said he thought paragraph 3 ofarticle 33 was superfluous since it was self-evident. He wastherefore in favour of deleting it.

30. Mr. MAHUNDA (UnitedRepublic of Tanzania) saidhe had no difficulty in accepting paragraph 3 of article 33.However, he had noticed that most delegations were againstit and he wondered whether it was wise to seek to imposeon some States a provision which they found unacceptable.Consequently, he was in favour of deleting paragraph 3.

31. Mr. AL-NASHERI (Yemen) said that he would voteagainst paragraph 3 of article 33 if it was put to the vote.

32. Mr. KOH (Singapore) said he thought that, ifparagraph 3 of article 33 were deleted, some other waywould have to be found of providing for the type ofsituation covered by that paragraph. He was grateful to therepresentative of the Soviet Union for saying that Singaporecould regard itself as a newly independent State and benefitfrom the provisions of article 15. But he must point outthat, according to the definition given in article 2, para-graph 1 (/), newly independent State meant "a successorState the territory of which immediately before the date ofthe succession of States was a dependent territory for theinternational relations of which the predecessor State wasresponsible". He would like to ask the Expert Consultantwhether, in the light of that definition, the Soviet represen-tative's interpretation held good.

33. Mr. FONT BLAZQUEZ (Spain) said that the cases towhich the International Law Commission referred in itscommentary to articles 33 and 34 were very clear cases ofseparation from a union of States and not of separation of apart of the territory of a unitary State. In the cases quoted,therefore, practice justified the continuity rule set out insubparagraphs (a) and (b) of paragraph 1 of article 33. Butthe cases referred to in the title itself of article 33, and inthe opening lines of paragraph 1 of the article, were notcases of separation from a union of States, but cases ofseparation of one or more parts of a State. Consequently,the rule which applied in those cases was the "clean slate"

rule. Nevertheless, the International Law Commission hadintroduced the continuity rule for such cases in para-graph 3. Indeed, it was clear that if the Commission hadretained the continuity rule solely for cases of separationfrom a union of States and the "clean slate" rule solely forcases of separation of parts of a State, paragraph 3 wouldhave been superfluous.

34. Mr. GILCHRIST (Australia) said he understood theviewpoint of the representative of Singapore and saw somevalue in retaining paragraph 3 of article 33. In his opinion,the International Law Commission had introduced theparagraph into the draft in order to make provision forsituations which had already arisen or which would arise inthe future. In so doing, it had acted in accordance with itsbrief which was to codify existing customary law and toformulate rules to deal with all succession problems likelyto arise. It had established a logical distinction between the"clean slate" rule, which applied in the Part III of the draftand the ipso jure continuity rule, which applied in Part IV.But exceptions to rules were inevitable and in his del-egation's opinion, the exception provided for in para-graph 3 of article 33 was acceptable and necessary. Part IIIof the draft dealt with newly independent States formed asa result of decolonization, whereas Part IV basically dealtwith the separation of States which had earlier decided tounite. But what was to be done if there was a secessionin a non-colonial situation analogous, but not identical,to the situation provided for in Part III of the draft?His delegation thought that paragraph 3 of article 33offered a pragmatic solution which seemed acceptable. Likethe Expert Consultant, it thought the paragraph tended tostrengthen the continuity principle in Part IV of the draftconvention by introducing an indispensable saving clausewhich would in practice constitute the exception whichproved the rule.

35. Sir Francis VALLAT (Expert Consultant) said he wasunable to reply to the question raised by the representativeof Singapore, since in his capacity as Expert Consultant hecould not express an opinion of the application of a rule toa particular case.

36. Mr. MAIGA (Mali) said that the explanations givenby the Expert Consultant5 showed that article 33 was ahybrid article in which the International Law Commissionhad tried to combine two principles—that of continuity andthat of the "clean slate". According to those explanations,paragraph 3 would apply to a situation similar to that ofcountries under trusteeship or mandate. However, in spiteof those explanations and the International Law Corn-mission's commentary, paragraph 3 still seemed to himambiguous and obscure. He therefore asked the ExpertConsultant whether, in the light of State practice, para-graph 3 referred only to trusteeship or mandated territories.

37. Sir Francis VALLAT (Expert Consultant) said thatparagraph 3 did not apply only to mandated territories,since such territories came under the category of newly

See 47th meeting, paras. 23-25.


independent States for which paragraph 3 would be su-perfluous. But there might be cases where a part of theterritory of a State was kept under the control of the Statein the same way as a colony. It was therefore necessary tointroduce an exception clause to deal with that type ofsituation in the future.

38. The CHAIRMAN invited the Committee to vote onthe first part of the amendment by France and Switzerland(A/CONF.80/C.l/L.41/Rev.l, para. 2), the proposal todelete paragraph 1, subparagraph (a) of article 33.

The amendment was rejected by 69 votes to 7, with9 abstentions.

39. Trie CHAIRMAN invited the Committee to vote onthe amendment by the Federal Republic of Germany toparagraph!, subparagraph (b) of article 33 (A/CONF.80/C.1/L.52).

The amendment was rejected by 57 votes to 5, with 20abstentions.

40. The CHAIRMAN put to the vote paragraph 1 ofarticle 33.

Paragraph 1 of article 33 was approved by 77 votes to 3,with 5 abstentions.

41. The CHAIRMAN put to the vote paragraph 2 ofarticle 33.

Paragraph 2 of article 33 was approved by 80 votes tonone, with 3 abstentions.

42. The CHAIRMAN suggested that voting on article 33be suspended and resumed at the next meeting.

It was so agreed.


49th MEETINGTuesday, 8 August 1978, at 5 p.m.



[Agenda item 11] {continued}

ARTICLE 33 (Succession of States in cases of separation ofParts of a State)1 {concluded)

!• The CHAIRMAN invited the Committee to continuevoting on the amendments to article 33 and to vote first of

For the list of amendments submitted, see 40th meeting,foot-note 9.

all on the second part of the amendment by France andSwitzerland (A/CONF.80/C.l/L.41/Rev.l, para. 2), theproposal to delete paragraph 3 of the article. At the requestof the Philippines delegation a vote would be taken byroll-call on the amendment by France and Switzerland todelete paragraph 3.

2. Mr. KOH (Singapore), said he wondered whether itwas appropriate to vote on the amendment by France andSwitzerland at the present juncture since, in his view, it wasconsequential on the amendment of the definition of"newly independent State".

3. Mr. VREEDZAAM (Suriname) said he also questionedthe correctness of voting first on the joint amendment.

4. Mr. RITTER (Switzerland) said that in his delegation'sview that part of the joint amendment to delete para-graph 3 was not consequential on any other amendment,except perhaps, insofar as the renumbering of article 34 andarticle 15 bis was concerned. His delegation had made itclear, when introducing its amendment, that the amendeddefinition of paragraph 1, subparagraph (f) of article 2could be taken separately.

5. Mr. ABOU-ALI (Egypt) proposed that the Committeevote first of all on paragraph 3 of the article underconsideration.

6. Mr. MUSEUX (France) supported that proposal.

7. Mr. RYBAKOV (Union of Soviet Socialist Republics)said that although such a procedure would be logical, itwould conflict with the rules of procedure. If paragraph 3were deleted as a result of the vote on the joint amend-ment, there would be no question of voting on paragraph 3at all. From a procedural point of view therefore, theCommittee should vote first on the joint amendment.

8. Mr. MASUD (Pakistan) said he could not support theproposal to vote first on paragraph 3. Not only would it beagainst the rules of procedure as they concerned voting onamendments, but it would affect his own delegation'sproposed amendment, which would not be pressed if theFranco-Swiss amendment were adopted.

9. Mr. TODOROV (Bulgaria) said he was in favour ofvoting on the joint amendment as the proper course ofaction. If that was rejected, paragraph 3 would stand, andthe Committee would then have to vote on Pakistan'samendment (A/CONF.80/C.1/L.54).

10. The CHAIRMAN said that the Committee appearedto be generally in favour of voting first on the second partof the amendment by France and Switzerland(A/CONF.80/C.l/L.41/Rev.l, para. 2), the proposal todelete paragraph 3 of article 33. A vote would therefore betaken by roll-call and, according to the result a vote wouldthen, if necessary, be taken on Pakistan's amendment.

Zaire, having been drawn by lot by the Chairman, wascalled upon to vote first.


In favour: Angola; Argentina; Austria; Bulgaria; Burundi;Byelorussian SSR; Canada; Cuba; Cyprus; Egypt; Ethiopia;France; German Democratic Republic; Germany, FederalRepublic of; Ghana; Greece; Hungary; Indonesia; Iraq;Italy; Ivory Coast; Kenya; Liberia; Libyan Arab Jamahiriya;Madagascar; Malaysia; Mali, Mexico, Netherlands, Niger,Nigeria, Norway, Pakistan; Panama; Peru; Philippines;Poland; Portugal; Romania; Senegal; Sierra Leone; Spain;Switzerland; Tunisia; Uganda; Ukrainian SSR; Union ofSoviet Socialist Republics; United Arab Emirates; UnitedRepublic of Tanzania; United States of America; Yemen;Zaire.

Against: Australia; Finland; Japan; Papua New Guinea;Singapore; Suriname; Trinidad and Tobago; Venezuela;Yugoslavia.

Abstaining: Belgium; Brazil; Czechoslovakia; DemocraticYemen; Denmark; Guyana; Holy See; India; Ireland; Israel;Jordan; Kuwait; Lebanon; New Zealand; Republic ofKorea; Somalia; Sri Lanka; Swaziland; Sweden; Thailand;Turkey; United Kingdom of Great Britain and NorthernIreland.

The amendment was adopted by 52 votes to 9, with 22abstentions.

11. The CHAIRMAN said that, paragraph 3 having nowbeen deleted, Pakistan's amendment automatically fell. Heinvited the Committee to vote on article 33, as a whole, asamended.

Article 33 as a whole, as amended, was adopted by 73votes to 4, with 6 abstentions.

12. Mr. KOH (Singapore), speaking in explanation ofvote, said that Singapore had voted against the deletion ofparagraph 3 because Singapore had become an independentState in circumstances closely analogous to those existing inthe case of the formation of a newly independent State. Itstreaty practice accorded with that of a newly independentState and the practice had been recognized by theinternational community.

13. Mr. ECONOMIDES (Greece), speaking in explanationof vote, said he had abstained in the vote on the jointamendment proposed by France and Switzerland because,although he could accept it in respect of new States legallyformed by the separation of parts of a territory of a State,he could not do so in the case of the dissolution of a unionof States or other composite States. He had also abstainedin the vote on paragraph 1 of the International LawCommission's text for article 33 since that likewise failed tomake the necessary distinction. He had voted in favour ofthe deletion of paragraph 3 of the Commission's text forarticle 33 because, although it sought to rectify theomission in paragraph 1, it was likely to prove ambiguous ininterpretation.

14. Mr. NAKAGAWA (Japan), speaking in explanation ofvote, said that he had voted against the deletion ofparagraph 3 of article 33 because he considered that itwould be better to have a safeguard clause in one form or

another in the event of cases analogous to those of newlyindependent States occurring in the future, despite the factthat the present formulation of paragraph 3 might not besatisfactory. However, he understood the position of themajority and would be ready to accept its decision; he hadtherefore voted in favour of the article as a whole.

15. Mr. PEREZ CHIRIBOGA (Venezuela) said he hadvoted against the deletion of paragraph 3 for reasons whichhe had already explained at an earlier meeting2. Heregretted that paragraph 3 had been deleted from article 33of the draft as it would have constituted a positive rule. Hehad, however, voted in favour of the article as a whole sinceit would be a useful provision.

PROPOSED NEW ARTICLE 30 bis (Settlement of dis-putes)3 (concluded)*

16. The CHAIRMAN announced that the composition ofthe Ad Hoc Group on Peaceful Settlement of Disputes,4 ascommunicated to him by the President of the Conference,was as follows: Brazil, Bulgaria, Czechoslovakia, Guyana,Iraq, Mali, Malaysia, Netherlands, Niger, Sri Lanka, Swazi-land, Union of Soviet Socialist Republics, United Kingdomof Great Britain and Northern Ireland, United States ofAmerica and Venezuela, as well as States having a particularinterest in the subject.


2 See 42nd meeting, paras. 18-20.

For the list of amendments submitted, see 44th meeting,foot-note 3.

* Resumed from the 46th meeting.


50th MEETINGMonday, 14 August 1978, at 5 p.m.



[Agenda item 11 ] (continued)

FIRST REPORT OF THE INFORMAL CONSULTATIONSGROUP (A/CONF.80/C.1/L.59)1

1 Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties, vol. I, Summary records ojthe plenary meetings and of the meetings of the Committee oftnWhole (United Nations publication, Sales No. E.78.V.8), p- 2ii'34th meeting, paras. 7-8.


Article 6 (Cases of succession of States coveredby the present articles)2 and

Article 73

1. The CHAIRMAN noted that at the 1977 session, theCommittee of the Whole had decided to refer articles 6, 7and 12 of the basic draft prepared by the International LawCommission and the amendments relating thereto to anInformal Consultations Group, established under the chair-manship of the Vice-Chairman of the Committee of theWhole.4 He invited the Committee to consider the Group'sfirst report, which related to articles 6 and 7 (A/CONF.80/C.1/L.59). That over-all examination should not preventthe Committee, in due course, from pronouncing separatelyon each of these articles, in accordance with its method ofwork.

2. Mr. RITTER (Chairman of the Informal ConsultationsGroup) said that the first report of the Informal Consul-tations Group related to the first two of the four pointswhich the Group had been instructed to examine. As far asarticle 6 was concerned, the Group recommended theCommittee of the Whole to adopt the text proposed by theInternational Law Commission without change. As toarticle 7, the Group recommended the Committee of theWhole to adopt the text proposed in variant A. Noconsensus had been reached on the addition to paragraph 1proposed in variant B.

3. Mr. YASSEEN (United Arab Emirates) endorsed therecommendation of the Informal Consultations Group thatthe text of article 6 proposed by the International LawCommission should be adopted without change, since thetask of the Conference was to formulate rules whichapplied only to lawful cases of succession of States.

4. With regard to article 7, he commended the Group andits Chairman on their outstanding work. At the 1977session, the Conference had been hesitant to adopt a ruleinvolving a general declaration of the nonretroactivity ofthe future convention, since it had considered that, in viewof the many cases of succession of States which had alreadyoccurred, such a rule might narrow the scope of theconvention by limiting its application to cases of successionwhich occurred after its entry into force. The United ArabEmirates had advocated a solution which would allow the

The following amendments were submitted at the 1977session: Australia, A/CONF.80/C.1/L.3 (withdrawn at the 7th meet-'"E); Romania, A/CONF.80/C.1/L.5; Ethiopia, A/CONF.80/p-l/L.6; Union of Soviet Socialist Republics, A/CONF.80/C.1/L.8(withdrawn at the 9th meeting); Singapore, A/CONF.80/C.1/L.17.

The following amendments were submitted at the 1977session; Byelorussian SSR, A/CONF.80/C.1/L.1; Malaysia,A/CONF.80/C.1/L.7; Cuba, A/CONF.80/C.1/L.10 and Rev.l and 2A; ' a t t e r a ' s 0 co-sponsored by Somalia); United States of America,*'CONF.80/C.1/L.16. The United Kingdom of Great Britain and

°rlhern Ireland submitted a working paper in connexion withwticle 7, A/CONF.80/C.1/L.19.

4Official Records of the United Nations Conference on Suc-

,!"'on of States in Respect of Treaties ... {op. cit.) p. 76,luth meeting, para. 56.

convention to be applied to certain cases of successionwhich had not been settled, and the United States hadmade a proposal along those lines (A/CONF.80/C.1/L.16).He noted with satisfaction that the Group had succeeded inoffering an acceptable solution, which was consistent withthe fundamental rules of international law governing theprinciple of non-retroactivity. That, in his view, was anundisputed principle in domestic law which indisputablyapplied in international law. It was not, however, aprinciple of jus cogens since it bound the judge, but not thelegislator. Accordingly, it could be waived by agreement.

5. He could therefore accept the provision appearing inparagraph 2 of the text proposed by the Group in variantA, to the effect that States could agree to apply theprovisions of the convention to successions which hadoccurred before its entry into force. In that connexion, hestressed that it was the provisions of the convention, andnot the convention itself, which would be applied retro-actively.

6. Paragraph 3 of the text proposed by the Group, underwhich two or more States could agree to apply theprovisions of the convention provisionally, was based onarticle 25 of the Vienna Convention on the Law of Treaties.The provision breached no peremptory rule of internationallaw and might enable certain problems to be solved.

7. He considered that the addition proposed in variant Bwas superfluous, since it was already implicit in paragraph 1of variant A. In his opinion, the solution proposed by theGroup was technically acceptable, since it was based oncollateral agreements, by which States could decide toapply any provision of a convention in their mutualrelations. His delegation was therefore in favour of the textsubmitted by the Group in variant A.

8. Mr. NAKAGAWA (Japan) said that his delegation hadalready emphasized, particularly in connexion witharticle 7, that in view of the diversity of State practice inregard to succession of States, the Conference was engagedmore in the progressive development of international lawthan in the mere codification of existing practice.5 TheCommittee should therefore take care that the outcome ofits work did not prejudice the treaty relations existingbetween States. However, it should also take account of thefact, that, as the International Law Commission hadobserved in paragraph 3 of its commentary to article 7, theadoption of a rule similar to that set forth in article 28 ofthe Vienna Convention on the Law of Treaties wouldprevent the application of the present articles to a newlyindependent State, since the entry into force of theconvention for such a State would inevitably occur afterthe date of its independence (A/CONF.80/4, p. 23). TheInternational Law Commission had proposed a solution tothat problem by making provision, in article 7, for "partialretroactivity", in other words, by restricting the applicationof the convention to cases of succession of States whichoccurred after the general entry into force of that con-vention. It had thus taken into consideration the need notto bring into question the effects of a succession of States

s Ibid., p. 75, 10th meeting, para. 48.


which occurred in the past, while taking account of thenewly independent States which would attain independencebefore the general entry into force of the convention. Inthat connexion, his delegation was ready to support thetext proposed by the International Law Commission.

9. As far as the two variants set out in the report of theInformal Consultations Group were concerned, his del-egation was unable to support the Argentine proposal,which appeared in variant B, since such extensive retro-activity might create difficulties for many States.

10. Although it preferred the International Law Com-mission's text, his delegation was prepared, in a spirit ofconciliation, to agree to the United Kingdom proposalwhich appeared in variant A. It considered, however, thatthe text still contained a number of obscure points whichshould be clarified. For instance, at the beginnning ofparagraph 3, the words "at the time of signing the presentConvention" should, in its view, be replaced by the words"at the time of expressing its consent to be bound by thepresent Convention", which had appeared in the originalproposal by the United Kingdom. As the text now stood, asuccessor State might ultimately not become a party to theconvention, although it had applied the convention pro-visionally up to the time when it had terminated itsprovisional application by a unilateral notification; thatwould create unstable treaty relations between the Statesconcerned. His delegation was, however, ready to acceptthe text now proposed by the Group in variant A, whilereserving the right to make further drafting suggestions forthe consideration of the Drafting Committee.

11. Mr. STUTTERHEIM (Netherlands) noted that, in itsstatement on 8 April 1977 at the 6th meeting, his del-egation had said that it was concerned by the provisions ofdraft article 6,6 since it was not impossible for a new Statecreated under conditions contrary to international law toinvoke that article in claiming that the provisions of articles11 and 12 on boundary regimes and other territorialregimes did not apply to it. The discussions held in theInformal Consultations Group on that article had shownthat other delegations had not subscribed to that view, andhis delegation hoped that its misgivings would be un-founded.

12. As far as article 7 was concerned, his delegationendorsed the text proposed by the Group in variant A. Onthe other hand, it had doubts about the application of theprovision proposed in variant B, since a new State comingunder that provision might have to wait a long time for theconvention to enter into force, while being already boundby it. It therefore preferred paragraph 1 of variant A.

13. Mr. LUKABU-K'HABOUJI (Zaire) said that he was incomplete agreement with the comments made by therepresentative of the United Arab Emirates. As far asarticle 6 was concerned, he had no difficulty in acceptingthe text of the International Law Commission, as theInformal Consultations Group proposed. With regard to

article 7, he could agree to the text proposed by the Groupin variant A, on the understanding that paragraph 2 of thattext took account of the concerns which had been the basisfor variant B.

14. Mr. SAHOVIC (Yugoslavia) said he was pleased tonote that the Informal Consultations Group recommendedthe Committee of the Whole to adopt the text of article 6proposed by the International Law Commission withoutchange, since he considered that that text would help toreinforce international lawfulness.

15. With regard to article 7, he unreservedly supportedthe text proposed by the Group in variant A, which wouldhelp to bring about the speedy application of the con-vention. He agreed with the representative of the UnitedArab Emirates that the addition proposed in variant B wasnot essential, since the solution, in his opinion, lay in theconsent of the parties to the convention.

16. Mr. DUCULESCU (Romania) said that his delegationwould not press its amendment to article 6 (A/CONF.80/C.1/L.5), the main purpose of which had been to emphasizethe need to interpret and to apply the principles ofinternational law enunciated in the Charter of the UnitedNations in the light of subsequent texts adopted by theGeneral Assembly, more particularly the Declaration onPrinciples of International Law concerning Friendly Re-lations and Co-operation among States in accordance withthe Charter of the United Nations7 and the Charter ofEconomic Rights and Duties of States.8 In view of the stagenow reached in the development of international law, suchan interpretation was the only one conceivable, even if thepresent text of article 6 was retained.

17- As to article 7, he unreservedly supported the textproposed by the Informal Consultations Group in vari-ant A, for it met the requirements of progressive devel-opment of international law and of unification of practicein matters of State succession. At the first session of theConference, his delegation had stressed the need to findsolutions that applied both to present and to future casesof succession of States, in order to take due account of theinterests of newly independent States.9

18. Like the representative of Zaire, he considered thatthe situation dealt with in variant B was already fullycovered by paragraph 2 of variant A.

19. Mr. FLEISCHHAUER (Federal Republic of Ger-many) observed that, at the 1977 session, his delegationhad said that draft article 7 as proposed by the Inter-national Law Commission was acceptable but did not g°quite far enough.10 A convention of the kind underconsideration should have some measure of retroactivity.

6 Ibid., p. 48, 6th meeting, para. 18.

7 General Assembly resolution 2625 (XXV).8 General Assembly resolution 3281 (XXIX).9 Official Records of the United Nations Conference on Sue-

cession of States in Respect of Treaties ... (op cit.), P-12th meeting, para. 19.

10 Ibid., pp. 68-69, 9th meeting, paras. 42-49.


and the draft article made allowance for that by referring tothe original entry into force. However, it did not specifyhow the convention could be made operable with effectbeyond that date, either after or before the original entryinto force. The saving clause "except as may be otherwiseagreed" did not give sufficient indication of the decisionsand complex procedures required for that purpose.

20. The Informal Consultations Group had been suc-cessful in its work. On the basis of a proposal originallysubmitted by the United Kingdom, it had made additionsto draft article 7 which related in particular to the ex tuneapplication of the convention beyond its entry into force,both after the entry into force of the convention for theparty concerned and on the basis of provisional application.The method chosen for that purpose was the mutualconsent of the parties, which implied some measure of splittreaty relations that could give rise to difficulties. However,such situations were not new and experience showed thatthey were not insurmontable.

21. Variant B of paragraph 1 related not to the entry intoforce of the convention but to the opening of theconvention for signature. His delegation preferred theparagraph as proposed by the International Law Com-mission. It was in fact already uncommon to refer to thedate of the original entry into force in an article concerningthe applicability in time of a treaty, and a possiblydangerous precedent would be created if reference wasmade to the much earlier date of the opening of theconvention for signature. Some situations might remainuncertain for a long time, and that would run counter tostability in treaty relations. It should be noted, however,that that question was closely related to a problem that hadnot yet been considered, namely, the number of ratifi-cations required for the future convention to enter intoforce. His delegation considered that the number should befairly high and, for that reason, it favoured variant A.

22. Mr. NATHAN (Israel) said that variant B of para-graph 1 would oblige States to apply the conventionretroactively from the date of the opening for signature andit would thus lead to uncertainty. Even if the conventionWas to enter into force shortly after it had been opened forsignature, successor States which had not become parties tothe convention at the time of its entry into force would beable to accede to it later on. States which were alreadyparties would then be obliged to apply the conventionretroactively, which might require some readjustment ofrights and obligations. The situation would be even moreserious if a lengthy period elapsed between the opening ofthe convention for signature and its entry into force. Injjiat connexion, he noted that under article 22, entitledEffects of a notification of succession", a newly indepen-

dent State was considered a party to the treaty from the!«te of the succession of States or from the date of entry"rto force of the treaty, whichever was the later date, butthe operation of the treaty was none the less considered assuspended until the date of making of the notification ofRecession, unless the treaty might be applied provisionally.« paragraph 8 of the commentary to that articleWCONF.80/4, p. 75), the International Law Commission

had put forward considerations that also applied in respectof article 7. It had emphasized that article 22, in its earlierversion would have given retroactive effect to a notificationof succession by a newly independent State so that, even ifthe notification of succession occurred long after the dateof the succession of States, a multilateral treaty would as ageneral rule be regarded as in force between that State andother parties with effect from the date of the succession ofStates. In that respect, the International Law Commissionhad added, other parties to the treaty would have had nochoice, but the newly independent State would have beenable to choose a later date if the retroactive application ofthe treaty was inconvenient from its point of view. Thatrule would create an impossible legal position for the Statesparties to the treaty, which would not know during theinterim period whether or not they were obliged to applythe treaty in respect of the newly independent State. Thelatter might make a notification of succession years afterthe date of the succession of States and, in thosecircumstances, a party to the treaty might be held to beresponsible retroactively for breach of the treaty. Hewished to add that such retroactive application of theconvention would hardly be of any practical advantage tothe successor State, in view of the terms of article 2,paragraph 2.

23. His delegation approved variant A, which was basedon the principle of provisional application of the con-vention, the parties being allowed the freedom to apply itinter se before the date of entry into force. The provisionwas based on mutual consent and it was not mandatory.

24. Lastly, his delegation favoured article 6 as proposedby the International Law Commission.

25. Mr. MONCAYO (Argentina) said that his delegationunreservedly supported article 6. In its opinion, onlyterritorial changes occurring in conformity with inter-national law were covered by the concept of succession ofStates, within the meaning of the future convention. Thecriterion of lawfulness was that territorial change shouldconform to the general norms of international law and,more particularly, to the principles of international lawembodied in the Charter of the United Nations. Territorialchanges which occurred as a result of force or of violationof the territorial integrity of a State were thereforeexcluded from the scope of the future convention.

26. Article 7 posed delicate problems, for it concernedthe application of legal rules in time. On several occasionsattention had been drawn to the need to supplement thatprovision by a transitional regime which would permit theapplication of the future convention to newly independentStates or to territorial chances which occurred between theconclusion of the treaty and its entry into force.

27. The general principle of non-retroactivity of juridicalnorms was not a peremptory norm of international law; itdid not bar agreement to the contrary. In its initial form,article 7 had already provided for a certain degree ofretroactivity by permitting the application of the con-vention to any succession of States occurring after its entryinto force. It therefore represented an advance in relation


to article 28 of the Vienna Convention on the Law ofTreaties. Moreover, article 7 facilitated the agreement ofthe parties, and the purpose of paragraphs 2 and 3 asproposed by the Informal Consultations Group was pre-cisely to indicate the procedure to be followed to permitthe application of the convention to a State whosesuccession occurred before the convention entered intoforce. However, in order to ensure such a result, theconsent of the other States, whether States parties orsignatory States, was still needed.

28. In view of the need for consent, the amendmentproposed by the Informal Consultations Group in variant Bsought to ensure that the convention could be applied, afterits entry into force, to a State which acceded to indepen-dence after the signing of the convention, and whichdeclared its willingness that it should so apply, without theneed for further consent or agreement. The purpose of theproposal was to fill the gap left in paragraphs 2 and 3 asproposed by the Informal Consultations Group.

29. On the assumption that the convention introducedsound legal rules, there was no reason for excluding thoseStates which acceded to independence after the signing ofthe treaty, but before its entry into force, from theapplication of the convention. The automatic applicationproposed, subject to only the willingness of the successorState, was limited in scope and would permit the effectiveapplication of the convention after its entry into force; itwould thus invalidate some of the criticisms concerning itsbelated nature. There was also ample scope for establishing,through agreement by the parties, other forms of retro-active application of the provisions of the convention.

30. Mr. SETTE CAMARA (Brazil) said that he favouredthe retention of article 6 as proposed by the InternationalLaw Commission. Since, in article 2, the concept ofsuccession of States was not restricted to that of lawfulsuccession, the International Law Commission had con-sidered that it would be useful to include in the draft aprovision of the kind set forth in article 6. In its writtencomments on article 6, the United Kingdom Governmenthad suggested that a distinction should be made betweenrights and obligations, and that States should be deemed tobe bound by their obligations, even in the event of unlawfulsuccession. The International Law Commission had takenthe view that such a distinction would be dangerous anddifficult to make (A/CONF.80/4, pp. 22-23). Conse-quently, he favoured the retention of article 6 as drafted bythe International Law Commission.

31. Article 7 as proposed by the Informal ConsultationsGroup took account both of the principle of non-retro-activity and of the need to apply the future Convention tosuccessions of States occurring as a result of the decoloniz-ation process. The text proposed covered every conceivablesituation and would reassure newly independent States. Theexceptions envisaged to the principle of non-retroactivitywere so designed as to require an express declaration ofwillingness on the part of States concerned. For thatreason, he fully supported the text recommended by theInformal Group.

32. Variant B of paragraph 1 might mean that theconvention would be applicable before it entered intoforce. It appeared to make provision for automatic retro-active application, independently of the will of the parties,which would be contrary to article 28 of the ViennaConvention on the Law of Treaties.

33. Mr. MARESCA (Italy) said that he could not butsupport the text proposed by the International LawCommission for article 6, which was a tribute paid togeneral international law and, in particular, to the im-portant principles elaborated by the Commission. He was,however, uncertain as to the law that would be applicableto the effects of a succession of States which did not occurin conformity with international law. Would the successorState apply customary international law, or would it actaccording to principles of its own choosing? He had nosolution to offer, but thought that the possible conse-quences of the lack of rules in such an eventuality shouldbe borne in mind.

34. Turning to article 7, he said that the text proposedby the Informal Consultations Group was a great improve-ment on article 7 as drafted by the International LawCommission. The convention was inherently dangerous,since it settled problems that history had already overcome,and because of that it was necessary to make provision forretroactivity by agreement. Accordingly, he supportedparagraph 2 of the text under consideration. Paragraph 3incorporated the provisions of the Vienna Convention onthe Law of Treaties. Paragraph 1 proposed in variant B hadbeen subjected to the harshest criticism, as constituting aregrettable source of uncertainty. While it was inadvisableto adopt rules which might create difficulties, the period oftime which might elapse between the opening of theconvention for signature and its entry into force shouldnevertheless be a matter of concern. That long period ofuncertainty might well nullify the value of the convention.The legal validity of the convention during that periodshould be taken into account. His delegation consideredthat the new idea incorporated into variant B deservedfurther study.

35. Mr. RYBAKOV (Union of Soviet Socialist Republics)said he supported articles 6 and 7, as drafted by theInternational Law Commission. Nevertheless, his delegationhad no objection to the provisions in variant A, which wereclear and which covered all the cases which might arise.However, it shared the doubts expressed by several del-egations as to the advisability of adopting the provisions invariant B. Those provisions would have no practical value,since the entry into force of the convention would dependon the clarity of its articles and the number of States thatratified it. Thus, if the Conference decided that ratificationof the convention by a small number of States wouldsuffice for it to enter into force, no problem would arise mpractice. However, it should not adopt ambiguous formu-lations such as those in paragraph 1, variant B.

36. Mr. PEREZ CHIRIBOGA (Venezuela) supported thetext for article 6 proposed by the International LaCommission. He would have preferred the Informal Con-


sultations Group to recommend the Committee to retainthe original text of article 7, since he believed that it wouldhave been more practical to treat the principle of non-retroactivity as a general rule, with the possibility ofmaking exceptions to it. It seemed to him to be dangerousto attempt to regulate those exceptions, at the risk ofleaving gaps that were impossible to fill in a convention.However, the Informal Consultations Group had decidedotherwise, and his delegation had joined in the consensuson the question and therefore supported the proposedparagraphs 2, 3 and 4 for article 7. He was surprised thatparagraph 1 in variant B was causing such misgivings andconcern among delegations, since to his mind it in factserved to fill one of those inevitable gaps by makingprovision for the case of a State which emerged intointernational life at a time when the convention had beenopened for signature but had not yet entered into force, inother words, when the international community hadexpressed its views on the succession of States in aconvention which had not yet entered into force but whichcontained rules applicable to that situation. It would not befair if, during that legal vacuum, a successor State did nothave the possibility of availing itself of all the progressiverules contained in the convention. Justice required thatthose rules should be automatically applicable to the casesof succession to which he had referred. The only differencebetween paragraph 1 of variant A and paragraph 1 ofvariant B was the date set for the application of theprinciple of retroactivity. In both cases, objective criteriawere involved. He further stressed that paragraph 1 ofvariant B would apply to a small number of successionsonly and that it constituted a transitional provisionenabling States which entered the international arena forthe first time during the period in question to benefit fromthe development of international law.

37. Mr. DOGAN (Turkey) said he supported the text ofarticle 6 recommended by the Informal ConsultationsGroup and the text of article 7 proposed in the Group'sreport, with a preference for variant B of paragraph 1. Itwas true that no treaty applied until after its entry intoforce. However, there was no rule of international law toprevent sovereign States from agreeing that a conventionshould apply with effect from its signature, but after itsentry into force. There was no valid reason to deprive anewly independent State of an additional option, if itwished the convention to be applied to it after its entryinto force but with effect from its signature. The issueinvolved legal policy rather than a mandatory requirementunder international law in respect of the entry into force ofa convention. His delegation favoured a legal policy whichWould afford the newly independent State an additionaloption of which it could avail itself.

38. Mrs. BEMA KUMI (Ghana) said that for the reasonsadduced by the Italian representative, her delegation wasconcerned by the use of the word "only" in article 6. WhatWould happen if a State emerged into international life byMethods other than those recognized by the internationalimmunity? In regard to article 7, she supported the textProposed in variant A but could not agree to variant B.

39. Mr. ARIFF (Malaysia) said it appeared that allmembers of the Committee could accept the proposedarticle 6. However, the text proposed by the InternationalLaw Commission for article 7 was far removed from thenew version proposed by the Informal ConsultationsGroup, which addressed itself to the problem of theretroactive effect of the convention and the situation inwhich the provisions of the convention would apply on aprovisional basis. He considered that the provisions ofvariant A were perfectly clear and that those under vari-ant B were superfluous and would contribute nothing tothe text of the convention.

40. Mr. RYBAKOV (Union of Soviet Socialist Re-publics), supported by Mr. KASASA-MUTATI (Zaire),observed that the Committee had concluded its consider-ation of articles 6 and 7 and proposed that it should take adecision on them.

41. Mr. YACOUBA (Niger) said that the members of theCommittee had not perhaps all had the time to take a finaldecision on the two articles under consideration and that itmight be better to defer a decision on them until the nextmeeting.

42. After a procedural discussion in which Mr.RYBAKOV (Union of Soviet Socialist Republics), Sir IanSINCLAIR (United Kingdom), Mr. YACOUBA (Niger),Mr. TORNARITIS (Cyprus) and Mr. RANJEVA (Mada-gascar) took part, the CHAIRMAN suggested that thediscussion on articles 6 and 7 should be closed, that adecision on them should be deferred until the next meetingand that separate decisions should be taken on the twoarticles in question at that time.

It was so decided.


[Agenda item 10]

43. Mr. SAHOVIC (Yugoslavia), speaking on a point oforder, noted that the Committee was now in its third weekof work and said that it should complete that work duringthe current week, if necessary, by holding night meetings.He would like to know how the President of the Con-ference envisaged the final stages of the work.

44. The CHAIRMAN informed the Committee that hewould hold consultations with the President of the Con-ference that evening on the matter raised by the represen-tative of Yugoslavia.

45. Mr. RANJEVA (Madagascar) requested the Chairmanto inform those taking part in the consultations of thedesire of several delegations that the timetable should beobserved and that the Conference should end on Friday, 18August.

46. Mr. MUDHO (Kenya) said that, without in any waywishing to hold up the work of the Conference, he couldnot approve of methods of work which would be inef-


ficient. Delegations with few members would have somedifficulty in taking part in all the meetings, particularlynight meetings, which might be scheduled in order tocomplete the work during the current week.

47. The CHAIRMAN said he believed that the Com-mittee, which had the bulk of the work to perform, wouldbe able to complete its task by Friday, 18 August.


51st MEETINGTuesday, 15 August 1978, at 5.05 p.m.


Election of the Rapporteur

1. The CHAIRMAN announced that Mr. Tabibi (Afgha-nistan), who had been elected Rapporteur of the Com-mittee of the Whole at the 1977 session of the Conference,had informed the President of the Conference that he wasunable to attend the resumed session. He invited membersof the Committee to submit nominations for the post ofRapporteur.

2. Mr. JOMARD (Iraq), on behalf of the Asian Group,nominated Mrs. Thakore (India) for the post of Rappor-teur.

Mrs. THAKORE (India) was elected Rapporteur of theCommittee of the Whole by acclamation.



FIRST REPORT OF THE INFORMAL CONSULTATIONS GROUP(A/CONF. 80/C. 1 /L. 5 9)1 (concluded)

3. The CHAIRMAN said that at its 50th meeting theCommittee had closed the discussion on the first report ofthe Informal Consultations Group (A/CONF.80/C.1/L.59),on articles 6 and 7; it therefore remained only to take adecision on the recommendations of the Group concerningarticles 6 and 7.

Article 6 (Cases of succession of States coveredby the present articles)2 and

Article 73 (concluded)

4. Mr. PAPADOPOULOS (Cyprus) observed that article 6naturally stated the presumption that the Conventionwould apply only to the effects of a succession of Statesoccurring in conformity with international law and, inparticular, with the principles of international law em-bodied in the Charter of the United Nations. The delegationof Cyprus, however, would vote for article 6, as drafted bythe International Law Commission, in the belief that itwould serve as a reminder to those who might believe thatthey would enjoy the benefits of the future Convention inunlawful situations. Article 6 would thus serve a usefulpurpose, in so far as it reflected the unequivocal stand ofthe international community in such cases.

5. Although the delegation of Cyprus had supported theinitial text of article 7, it would vote for the text proposedby the Informal Consultations Group and, in particular, forvariant A of paragraph 1, as it believed that the new textwas largely in the interests of many States which haddoubts, among other things, as to whether a notification ofsuccession made under the regime of continuity, after along silence, could produce its effects.

6. The CHAIRMAN said that if there were no objectionshe would take it that the Committee provisionally adoptedthe text of article 6 proposed by the International LawCommission and referred it to the Drafting Committee forconsideration.

It was so agreed.*

7. The CHAIRMAN observed that no delegation hadasked that variant B of paragraph 1 be put to the vote. Ifthere were no objections, he would take it that theCommittee provisionally adopted the text of article 7proposed by the Informal Consultations Group and referredit for consideration to the Drafting Committee, whichwould also be required to propose a title for that article.

It was so agreed.5

8. Mr. MUSEUX (France) said that the attention of theDrafting Committee should be drawn to the phrase "con-tained in a written notification to the Secretary-General ofthe United Nations", which appeared in paragraph 4; for ashe had already pointed out, the Secretary-General of theUnited Nations was not there referred to in his capacity assuch, but in his capacity as depositary of the Convention.In his opinion the words "Secretary-General of the UnitedNations" should be replaced by the word "depositary".

9. Mr. OSMAN (Somalia) said he had joined in theconsensus on article 7 on the understanding that its

1 See 50th meeting, foot-note 1.2 For the list of amendments submitted, see 50th meeting,

foot-note 2.

For the list of amendments submitted, see 50th meetingifoot-note 3.

For resumption of the discussion, see 53rd meeting, paras-34-35.

For resumption of the discussion, see 53rd meeting, paras.36-51.


provisions could not be invoked by a contracting partyagainst another contracting State which had reserved itsposition on certain provisions of the Convention.

AGREED TEXT OF THE AD HOC GROUP ON PEACEFULSETTLEMENT OF DISPUTES (A/CONF.80/C.1/L.60 andCoir.l)

10. The CHAIRMAN reminded the Committee that ithad decided, at its 45th meeting, during the discussion ofthe proposed new article 39 bis, to set up an Ad Hoc Groupon peaceful settlement of disputes,6 and at its 46thmeeting, to defer consideration of the question until the AdHoc Group had completed its work.7

11. Mr. NAKAGAWA (Japan) said that his delegationhad always been in favour of a mandatory procedure forthe settlement of disputes by the International Court ofJustice or by arbitration the decision handed down beingbinding on the parties concerned. With regard to Article Cproposed by the Ad Hoc Group, in the agreed text(A/CONF.80/C.1/L.60 and Corr.l), his delegation wouldhave preferred the "opting-out" to the "opting-in" system.It was, however, prepared to support the solution proposed,in the hope that some day the international communitywould consider itself sufficiently advanced to be able toaccept the ideal system of judicial settlement of disputes.

12. Mr. RANJEVA (Madagascar) said he wished to drawthe Drafting Committee's attention to the last phrase ofarticle A which, by providing for both consultation andnegotiation, might result in a dilatory procedure. In hisdelegation's opinion, the notion of consultation was notvery precise in meaning, and article A was intended to referto diplomatic procedure. It would be better to delete thereference to consultation, which had a legal connotation,and replace it by a reference to diplomatic negotiations.

13. Mr. KASASA-MUTATI (Zaire) said he thought thetext proposed by the Ad Hoc Group had many advantagesover the initial proposals, and as the provisions of articles Ato E met the concern of his delegation it would supportthem.

14. Mr. MARESCA (Italy), expressed his satisfactionwith the text prepared by the Ad Hoc Group, which,although not perfect, was acceptable to his delegation fromevery point of view. He was particularly pleased to note theorder in which the various procedures were presented,which his delegation had been the first to recommend. Withregard to article B, however, he pointed out that while itwas normal to submit a "request" to the Secretary-General°f the United Nations, it would be preferable to speak of"notification" of the other State party or States parties tothe dispute, in other words, to find some formula reflectingthe idea of conciliation. For if the other State party or

See 45th meeting, para. 71.n


States parties to the dispute took the term "request"literally, they might reply in the negative, which would beabsurd. He therefore recommended that the DraftingCommittee should add, after the words "of the UnitedNations and" some words such as "a notification", so thatthe other State party or States parties to the dispute couldnot refuse to submit to the conciliation procedure.

15. Mr. PEREZ CHIRIBOGA (Venezuela) said that, inthe Ad Hoc Group, delegations had adopted a flexibleattitude in order to arrive at a text acceptable to all, so thatthe Group's proposal was the result of bringing thepositions of the various delegations closer together. Hisdelegation was therefore willing to support the proposal;but it wished to stress, with regard to article B, that while ithad accepted the idea of the compulsory nature ofconciliation in a spirit of compromise, it had done so solelywithin the framework of the present Convention andwithout in any way committing the Venezuelan Govern-ment in regard to other modes of settlement of disputesunder other international instruments, in particular thoserelating to the law of the sea. It was on that understandingthat his delegation joined in the consensus on the textagreed by the Ad Hoc Group.

16. Mr. WETLAND (Norway) said that it was not fromlack of interest that his delegation had not spoken earlier inthe dispussion, and that it strongly supported all the effortsby the international community to establish mandatoryprocedures for the peaceful settlement of disputes. Norwayhad three times been a party to disputes before theInternational Court of Justice and was among the Stateswhich had made a declaration recognizing the compulsoryjurisdiction of the Court in accordance with Article 36 ofits Statute. The text prepared by the Ad Hoc Group was avery carefully worded compromise which, even if notcompletely satisfactory to all delegations, should prove tobe workable. He would not go into details, but he did notsee the need for article D. His delegation had no difficultyin accepting the text as a whole, however, although itwould have preferred the Committee to adopt one of theproposals first made by the Netherlands and the UnitedStates. In its view, those more ambitious proposals shouldremain the goal which the international community shouldsome day be able to attain. But his delegation realized thatthe time was not yet ripe for such solutions, and that acommon denominator acceptable to all delegations must befound.

17. To sum up, his delegation was ready to support theagreed text submitted by the Ad Hoc Group, which was astep in the right direction and an improvement on theregimes adopted at previous conferences, when the majorityhad favoured optional protocols.

18. Mr. FLEISCHHAUER (Federal Republic of Ger-many) welcomed the group of articles on the settlement ofdisputes prepared by the Ad Hoc Group, as a useful andnecessary addition to the draft Convention. He regretted,however, that the proposed procedure did not enable theInternational Court of Justice to play its proper part. He


had hoped that the members of the Ad Hoc Group wouldbe able to reach agreement on a procedure providing forcompulsory recourse to the International Court of Justice,if necessary with a provision allowing States to declare thatthey were not bound by that procedure (opting-outsolution). The proposed procedure, which provided, on thecontrary, that a dispute could only be referred to theInternational Court of Justice if the States parties to thedispute had accepted the jurisdiction of the Court (opting-in solution), showed no progress as compared with theprocedure adopted in the protocols to the Vienna Con-ventions on Diplomatic Relations (1961)8 and on ConsularRelations (1963).9 Nevertheless, since it had not beenpossible to agree on more forceful means of settlement ofdisputes, his delegation was willing to accept the agreedtext submitted'by the Ad Hoc Group.

19. Mr. YANGO (Philippines) said he thought the veryfact that the International Law Commission had notproposed an article on the settlement of disputes clearlyshowed that it preferred to leave it to the Conference towork out an appropriate procedure. He therefore welcomedthe procedure proposed by the Ad Hoc Group in the agreedtext. He would have preferred it to place more emphasis onthe role of the International Court of Justice, because thePhilippines had always been in favour of the compulsoryjurisdiction of the Court. But he was prepared to supportthe proposed text, on the understanding that there was nohierarchy for the procedures proposed in the variousarticles and that the consent of the parties must prevail inthe choice of the procedure to be followed.

20. Sir Ian SINCLAIR said he welcomed, but withoutenthusiasm, the text proposed by the Ad Hoc Group, inwhose deliberations his delegation had taken part.

21. With regard to article B, he agreed with the represen-tative of Italy that it was not a request, but simply anotification that should be sent to the other States partiesto disputes.

22. He found article C more difficult to accept, becausehis delegation had always advocated a procedure for thesettlement of disputes based on the compulsory jurisdictionof the International Court of Justice and had accordinglybeen prepared to support the United States proposal(A/CONF.80/C.l/L.38/Rev.l), which had left it open toStates to declare that they would not be bound by theprocedure in question. The procedure proposed in article Ctherefore seemed to his delegation to be inadequate, but itcould accept the set of articles proposed by the Ad HocGroup as a whole.

23. Mr. KAKOOZA (Uganda) said that, while he wasgrateful to the Ad Hoc Group for its efforts, he considered,like the Italian representative, that the procedure proposedin article B was defective. His delegation had alwaysemphasized the importance of the process of consultation

United Nations, Treaty Series, vol. 500, p. 95.1 Ibid., vol. 596, p. 261.

and negotiation, which it considered to be the best meansof settling disputes; and while it recognized that thatprocess should not continue indefinitely, it believed thatbefore abandoning it and submitting the dispute to theproposed conciliation procedure, a State party should firstnotify the other States parties of that intention, so thatthey would not be taken by surprise, but be encouraged torenew their efforts to settle the dispute through diplomaticchannels. If the dispute had not been settled within aperiod of three months from the date on which thenotification had been made and the other States parties tothe dispute persisted in their refusal to submit it to theconciliation procedure provided for, the State which hadmade the notification could submit its request to theSecretary-General of the United Nations. The importanceof the process of consultation and negotiation would thusbe preserved. Subject to that proposal, his delegationsupported the text submitted by the Ad Hoc Group.

24. Mr. OSMAN (Somalia) said he wholeheartedly sup-ported the new procedure for the settlement of disputessubmitted by the Ad Hoc Group, which he found was wellbalanced and sufficiently flexible. He especially com-mended the Ad Hoc Group for having emphasized theimportance of the consent of the parties to the dispute.

25. Mr. GODET (Switzerland) said that his country,wliich stood for the principle of the primacy of law overforce in international relations, could not fail to supportany compulsory procedure for the settlement of disputes.His delegation had therefore been in favour of theprocedure suggested by the United Kingdom, which strucka balance between the ideal and the possible, and regrettedthat the Ad Hoc Group had not been able to accept it. Atthe same time, his delegation recognized that the inter-national community was not yet ready to accept a systemwhich was considered too coercive, and it supported thetext proposed by the Ad Hoc Group as being the minimumthat could be expected at the present stage of internationalrelations.

26. Mr. EUSTATHIADES (Greece) said he agreed withthe representative of Madagascar that the word "con-sultation" in article A should be deleted, since consultationand negotiation were two different things, and recourse toconsultation might unduly protract the procedure forsettlement of disputes. He also considered, like the Italianrepresentative, that article B should refer to a "noti-fication", rather than a '"request", made to the other Stateparty or States parties to the dispute.

27. With regard to drafting, he proposed that in theFrench text of articles A and D the words "entre deuxEtats parties ou plus" should be replaced by the words"entre deux ou plusieurs Etats parties". He also wonderedwhether it would not be better to place article D beforearticle C; for in his view there was a gradation in the meansto be employed, ranging from negotiation, provided for inarticle A, through conciliation, provided for in article B,and decision by common consent of the parties to a disputeto submit it to arbitration or to the International Court ofJustice, as provided in article D, to an undertaking given in


advance by States parties to the Convention to submit theirdisputes regarding interpretation and application of theconvention to the International Court of Justice or toarbitration, which was provided for in article C. He believedthat a general undertaking, given in advance by a Stateparty to a convention to all the other States parties to thatconvention, was more important than a simple ad hocagreement between two or more States relating to aparticular dispute.

28. He would support the text proposed by the Ad HocGroup but, like the representative of Japan, he regrettedthat it constituted no more than a bare minimum. Inparticular, he was surprised to find no mention of the rulesthat would be applied by the conciliation commission.

29. Moreover, since the conclusions of the conciliationcommission would not be binding and, in addition, sincearbitration and judicial settlement were contingent on theprior or ad hoc agreement of the parties to the dispute, theonly compulsory procedure remaining was negotiation.Would that not mean that the convention would leave it tothe stronger to force a solution to the dispute, and that theweaker would have to give way?

30. Mr. PAPADOPOULOS (Cyprus) said he was glad thatthe Ad Hoc Group had succeeded in drafting a text thattook due account of all the trends which had appeared inthe Committee of the Whole. He regretted, however, thatautomatic recourse to the International Court of Justicehad not been provided for, since that would have strength-ened the role of the Court. Nevertheless, his delegationwould support the compromise text of the Ad Hoc Group.

31. Mr. HAMZA (United Arab Emirates) said he had tworeasons for welcoming the agreed text of the Ad HocGroup. In the first place, his delegation had always wishedthe Convention to contain a clause on the settlement ofdisputes. Secondly, as a small State, the United ArabEmirates wished international relations to be stabilized,which would only be possible if there was a mechanism forthe settlement of disputes between States. The text underconsideration was an improvement on the previous text,but liis delegation would have been prepared to go a stepfurther. It would nevertheless support the proposed text,since it reflected the various trends which had emergedduring the discussion. At the most, a reference might bemade in article A to the diplomatic channel, as well as tothe process of consultation and negotiation.

32. Mr. LANG (Austria) said he was glad the Ad HocGroup had been able to reach agreement on a text whichshowed that definite progress had been made. Admittedly,it would have been better to give a more important role tocompulsory arbitration and the compulsory jurisdiction ofthe International Court of Justice; but the internationalcommunity was not ready to accept, internationally, thesame machinery for the settlement of disputes as wasaccepted nationally. It must not be forgotten, however,that significant progress had been made at the regional levelwhere there would probably soon be a further advance.

33. In accordance with that realistic approach, theAustrian delegation could agree to give priority to suchnon-judicial means of settlement as consultation, nego-tiation and conciliation. Even though many delegationswere unable to accept compulsory judicial settlement ofdisputes as a provision of the future convention, it was tobe hoped that when States became involved in a disputethey would consider it in their interests to submit to thatprocedure.

34. Mr. KOROMA (Sierra Leone) said that his countrywas in favour of the text before the Committee, for it hadalways believed that international disputes should be settledby peaceful means. The process of consultation andnegotiation had been referred to in article A because it wasthe classical means of settling disputes. To meet theconcern of those who feared that consultation and nego-tiation would delay the settlement of disputes, it could beexpressly stated that they must be conducted in good faith.Admittedly, good faith was an underlying principle ofinternational law, but if that principle was expressly statedin the case in point, the parties to a dispute would be underan obligation to act in good faith.

35. Mr. MAHUNDA (United Republic of Tanzania) saidthat his delegation welcomed the agreed text of the AdHocGroup, because it was not in favour of the compulsoryjudicial settlement of disputes. Other delegations took adifferent view, and it was only thanks to the spirit ofconciliation which had prevailed in the Group that it hadbeen possible to draft that text.

36. Mr. ROVINE (United States of America) said it waswith reluctance that his delegation would give its support tothe agreed text of the Ad Hoc Group. That text showedsome progress as compared with those of conventionsconcluded in recent years, but it was still not adequate: itdid not suffice to protect the rights established in thefuture Convention. Compared with article 66 of the ViennaConvention of the Law of Treaties1 ° which provided forcompulsory recourse to the International Court of Justicefor the settlement of disputes relating to a peremptorynorm of general international law, it was even a significantretreat. For questions of secondary importance, it had notbeen possible to reach agreement on a provision equivalentto article 66 of the Vienna Convention.

37. During the debate, none of the arguments advancedfor not going further in the procedure for settlement ofdisputes had been convincing. Some speakers had said thatthe international community was not yet ready to go a stepfurther, but they had not given the reasons for that state ofaffairs. He believed that the international communityshould be guided in the right direction. Other represen-tatives feared that States would not abide by the judgmentsof the International Court of Justice, but in his opinionthat was no reason for not going ahead.

Official Records of the United Nations Conference on theLaw of Treaties, Documents of the Conference (United Nationspublication, Sales No. E.70.V.5), p. 298.


38. As the United States delegation had emphasizedduring the discussion on article 39 bis,11 it was importantto include adequate provisions on the settlement ofdisputes in the future Convention, in order to give effect tothe rights deriving from the "clean slate'" principle andleave no room for doubt. In that respect, the work of theCommittee of the Whole was not what it should, or could,have been. It was to be hoped that, in the future, theinternational community would make greater efforts insituations of that kind.

The meeting rose at 6.2.5 p.m.

See 44th meeting, paias. 4-7.

52nd MEETINGTuesday, 15 August 1978, at 9.30p.m.




AGREED TEXT OF THE AD HOC GROUP ON PEACEFULSETTLEMENT OF DISPUTES (A/CONF.80/C.1/L.60 andCon.l) [concluded)

1. Mr. MUDHO (Kenya) said that the agreed text of theAd Hoc Group on Peaceful Settlement of Disputes(A/CONF.80/C.1/L.60 and Corr.l) was a realistic compro-mise which his delegation had little difficulty in accepting,although it had some reservations about article B.

2. He wondered, however, what purpose would be servedby the retention of paragraph 4 of the annex on concili-ation procedure, if read in conjunction with the secondsentence of paragraph 6, which expressly stated that thereport of the Commission would not be binding upon theparties.

3. At an earlier stage, he had been disposed to supportthe proposal of the Ugandan representative1 that duenotice should be given to other parties before a party to adispute had recourse to the conciliation procedure laiddown in article B. On reflection, however, he had becomeconvinced that such an arrangement would merely add tothe delay, which might already amount to some three years,before the Conciliation Commission made its recommen-dations. He would therefore urge the Ugandan represen-tative not to press his proposal.

4. Mr. STUTTERHEIM (Netherlands) said that, in viewof the Netherlands proposal of a new article 39 bis on thesettlement of disputes (A/CONF.80/C.1/L.56), it would bereadily understood that his delegation was not entirelysatisfied with the agreed text of the Ad Hoc Group. Itwould appear that the international community was a longway from accepting true international justice and indeedhad even taken a step back from the position it hadadopted in the Vienna Convention on the Law of Treaties,Nevertheless, in order to advance the work of the Confer-ence, his delegation was prepared to accept the view of themajority and therefore withdrew its proposal.

5. He endorsed the comments of the Italian represen-tative2 on article B of the agreed text.

6. Mr. MAIGA (Mali) said that a number of speakers hadconsidered that, in article A of the Ad Hoc Group's report,the words "consultation" and "negotiation" had beenincongruously yoked together, and had suggested thedeletion of the former. However, in codification conven-tions, reference had to be made both to legal norms and toState practice. It was a matter of experience that manyStates had settled disputes by way of consultation; AfricanStates had provided an edifying example of that practice.Some texts of agreements between States mentionedconsultation, whereas others referred only to negotiation.The two words had virtually the same meaning, except that"negotiation" had diplomatic implications. A reference tonegotiation was desirable for the progressive developmentof international law.

7. He endorsed the comment of the Italian representativeon article B.

8. In his view, article C struck a false note. It wassuperfluous since the parties to a dispute could alwayssubmit it to the International Court of Justice or toarbitration by common consent. Article C had been ac-cepted by delegations on the understanding that it wouldprovide for opting in to the procedure it laid down, but hehad considerable reservations about the present text whichappeared to differ from the original version which had beenread out to the Committee.

9. Some delegations had asked why third world countrieswere reluctant to accept the jurisdiction of the Inter-national Court of Justice. In troubled times like thepresent, when dominant ideologies were endeavouring tostamp out all elements of civilization that did not squarewith their own dogmas, countries were right to have seriousmisgivings about the submission of disputes to the compul-sory jurisdiction of the Court. They had seen how thedecisions of its judges were coloured by the nationalpolicies of their respective countries—the most flagrantexample being the Court's 1966 judgment in the SouthWest Africa case.3 On other occasions, the Court had evenreached the conclusion that both sides in a dispute wereright. The fact was that international law was changing, but

See 51st meeting, para. 23.

Ibid., para. 14.3 South West Africa, Second Phase, Judgment, I.CJ. Reports

1966, p. 6.


the Court still based itself on superannuated concepts thatdid not accord with the ideas of the newly independentStates which accordingly had an absolute right to reject itsjurisdiction. In any legal judgment at regional or inter-national level, religious and political considerations alwaysplayed a part. Third world countries could not acceptjudgments which took no account of their own opinionsand which seemed to imply that such countries did notbelong to the category of civilized nations referred to inarticle 38 of the Statute of the International Court ofJustice.

10. Mr. FARAHAT (Qatar) said that the Ad Hoc grouphad produced a practical text consonant with the rules ofinternational law and its codification. His delegation at-tached particular importance to the peaceful settlement ofdisputes by consent and to strengthening the role of theInternational Court fof Justice which was in accordancewith political realities and the basic tenets of internationallaw.

11. Mr. DOGAN (Turkey) said that, although his del-egation should have preferred an agreed text which pro-vided for the compulsory jurisdiction of the InternationalCourt of Justice, it shared the majority view that recourseto the Court might prove superfluous if negotiations andconsultations were conducted with good will. The textconstituted an advance in the settlement of disputes in thatit set up an obligatory conciliation procedure, while leavingit open to the parties to agree to submit their dispute to theInternational Court of Justice. His delegation would votefor the agreed text.

12. Mr. KRISHNADASAN (Swaziland) said that, al-though the agreed text probably did not satisfy anydelegations completely, it represented the best that couldbe achieved by consensus and his delegation would supportit. In particular, he believed it constituted a clear advanceon the Vienna Convention on the Law of Treaties and othermultilateral conventions. Although no article in the presentconvention enjoyed the status of jus cogens to which article66 of the Vienna Convention applied, nevertheless, aprocedure for the compulsory settlement of disputes hadbeen devised and the possibility of opting in was providedfor in article C instead of in an optional protocol. Thatrepresented progressive development of international law.His delegation was particularly in favour of its being made aniatter of opting in rather than opting out, to which somestigma might be attached. It therefore supported thePresent text of article C, although there was room forimprovement by the Drafting Committee.

13. He fully endorsed the comments of the Malianrepresentative on the attitude of third world countries tothe International Court of Justice. The reason for thatattitude was not merely the crisis of confidence which hadoccurred in 1966; the brutal truth was that third worldcountries had played no part in the formulation ofcustomary international law and for that reason preferredto emphasize treaty law. Even if such countries wereadequately represented in the Court, the judges had

perforce to apply existing international law. Nevertheless,by the form of the declaration it had made under article 36of the Statute of the International Court, Swaziland haddemonstrated its faith that in due course the Court wouldrise above its limitations and contribute to the progressivedevelopment of international law. Many countries whosedelegations advocated the compulsory jurisdiction of theCourt had made declarations so hedged about with reser-vations as to be virtually meaningless.

14. In his view, the heterogeneous international com-munity in which right and wrong were not clearly definedthought more easily in terms of a negotiated settlement inwhich there was neither winner nor loser, and many Statesshowed a marked preference for the way of mediation,conciliation and good offices.

15. Mr. JOMARD (Iraq), on a point of order, proposedthat, since there were no written amendments before theCommittee, it should proceed to a vote on the agreed textsubmitted by the Ad hoc Group.

16. The CHAIRMAN said that, although he had not yetreached the end of his list of speakers, he would suggestthat the list be closed forthwith.

It was so agreed.

17. Mr. OSMAN (Somalia) said there was little point inprolonging discussion of a text which was not controversialand which the majority of speakers had declared wasacceptable to their delegations. The use of the term"consultation and negotiation" in article A was not asubstantive issue.

18. The other problem had been the question of thecompulsory jurisdiction of the International Court ofJustice. That problem had been resolved now that thosedelegations which supported compulsory jurisdiction hadagreed not to press for it, and the text had beenreformulated accordingly.

19. The reasons why some delegations had strong viewsabout the compulsory jurisdiction of the Court had beenadequately explained by the representatives of Mali andSwaziland. To put it bluntly, the International Court ofJustice was an anachronism set up to apply the nineteenthcentury laws of nations which had been evolved by theEuropean and colonialist powers. In a dispute between aformer colonial power and a developing country, the Courtwould apply the classical principles of international law,which did not reflect the needs of third world countries andwhich the latter regarded as neither equitable nor just.International law was developing progressively—a factwhich all the speakers had realized.

20. The CHAIRMAN said that all the views expressed bydelegations would be reflected in the summary records andthe Drafting Committee would take due note of allsuggested amendments. If there were no objection, hewould take it that the Committee approved the agreed textof the Ad Hoc Group and agreed to refer it to the DraftingCommittee.


21. Mr. MUSEUX (France) said that, while he wouldhave no objection to the procedure suggested by theChairman, he considered it essential first of all to be quiteclear as to the exact intent of article B. As the Italianrepresentative had rightly pointed out, that article, whichprovided for a request to be submitted to the UnitedNations Secretary-General and to the other State party orState parties to the dispute, was open to two possibleinterpretations: either, once a request had been submitted,the other State party was bound to agree to have recourseto the conciliation procedure, or it could decline so toagree. In his view, the members of the Ad Hoc Group hadintended to provide for a compulsory conciliation pro-cedure, once such a request had been submitted, and by"compulsory" he understood that it was the conciliationprocedure—as opposed to the decision reached as a result ofthat procedure—that would be compulsory.

22. The CHAIRMAN said that that point would beconsidered by the Drafting Committee, together with allthe other drafting points raised during the discussion.

23. If there were no objection, he would invite theCommittee to approve the agreed text proposed by the AdHoc Group on Peaceful Settlement of Disputes(A/CONF.80/C.l/L.60/Corr.l) and to refer it to theDrafting Committee.

It was so agreed,4

ARTICLE 2 (Use of terms)5

24. The CHAIRMAN said that the 1977 session of theConference had referred article 26 to the resumed sessionfor further consideration. Two amendments to paragraph 1,submitted by France and Switzerland (A/CONF.80/C.l/L.41/Rev.l) and Cuba (A/CONF.80/C.1/L.46), respect-ively were before the Committee.

25. Mr. MUSEUX (France), introducing the amendmentproposed by France and Switzerland (A/CONF.80/C.l/L.41/Rev.l), said that it consisted of two parts, relativeto paragraphs 1 (b) and 1 (f) respectively. The amendmentto paragraph 1 (f) was closely linked to that submitted byFrance and Switzerland to article 33, which had not beenaccepted by the Committee. In the circumstances, hewithdrew the amendment to paragraph 1 (/).

4 For resumption of the discussion, see 57th meeting, paras.1-18.

5 At the 1977 session the following amendments were sub-mitted: France and Switzerland, A/CONF.80/C.1/L.41; CubaA/CONF.80/C.1/L46. Afghanistan also submitted an oral amend-ment (5th meeting, para. 8). At the resumed session France andSwitzerland submitted a revised version of their amendment,A/CONF.80/C.l/L.41/Rev.l.

6 Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties, vol. I. Summary records ofthe plenary meetings and of the meetings of the Committee of theWhole (United Nations publication, Sales No. E.78.V.8), p. 21,1st meeting, paras. 9-11.

26. The amendment to paragraph 1 (b), unlike that toparagraph 1 (/), was concerned purely with a point ofdrafting and was in no way intended to call into questionthe statements made in paragraph 3 of the InternationalLaw Commission's commentary to article 2 (A/CONF.80/4,p. 17). The essence of the amendment was the replacementof the phrase "in the responsibility for the internationalrelations of territories" by the phrase "in the exercise ofcompetence for international relations in respect of aparticular territory". In his delegation's view, that changewould make the drafting more precise, at any rate in theFrench version, and would correspond more closely to apossible situation in a unitary state, where each part mightnot have international relations, in the strict sense of theterm.

27. Mrs. VALDES PEREZ (Cuba), introducing the firstof her delegation's two amendments to article 2(A/CONF.80/C.1/L.46), said she appreciated that the defi-nition of "treaty" given in paragraph 1 (a) was identicalwith that given in the Vienna Convention on the Law ofTreaties, on which the draft convention was modelled, butshe nonetheless considered that it could give rise todifficulty. Certain treaties imposed by the colonial powersfor their own benefit or for that of third States werelacking in one essential element, namely, the consent of theparties. They were thereby rendered invalid and could notbe applied to a successor State. For that reason, herdelegation proposed that, in paragraph 1 (a), the word"validly" be inserted between the words "agreement" and"concluded".

28. The purpose of the second amendment, which relatedto paragraph 1 (b), was to make it clear that a successorState replaced a predecessor State so far as all rights andobligations arising under treaties were concerned.

29. Mr. OSMAN (Somalia) said that his main difficultywith the Franco-Swiss amendment arose from the replace-ment of the term "responsibility" by the word "com-petence", for there was a fundamental difference betweenthose two concepts. The former colonial powers, forexample, had been responsible for the affairs of theircolonies, but had certainly not been competent in thatrespect, from the legal point of view. For that reason, heconsidered that paragraph 1 {b) should stand as drafted.

30. He fully endorsed the Cuban delegation's amendmentto paragraph 1 (a), but was unable to support its amend-ment to paragraph 1 (b) which, in his view, was superflu-ous.

31. Miss WILMHURST (United Kingdom), referring fustto the Franco-Swiss amendment, said that her delegationhad no difficulty with the term "responsibility" which, toEnglish at any rate, had a certain hallowed respectability-The International Law Commission's commentary made itclear that there was no intention to convey any notion otState responsibility, in the sense of State liability(A/CONF.80/4, p. 17). Since it was generally recognizedthat the matter concerned a drafting point, it could perhapsbe remitted to the Drafting Committee for consideration inmore detail.


32. With regard to the Cuban amendment to paragraph 1(a), it seemed to her delegation that the point was alreadymet by article 13, which provided that nothing in theConvention should prejudice the validity of a treaty.

33. The Cuban amendment to paragraph 1 (b) couldperhaps be remitted to the Drafting Committee for con-sideration, together with the Franco-Swiss amendment.

34. Mr. YIMER (Ethiopia), referring, to the Franco-Swissamendment to paragraph 1 (£>), said that his delegationpreferred the text as drafted, since it found the term"competence" somewhat difficult to understand in thatcontext.

35. It was quite unable to accept the Cuban amendmentto paragraph 1 (a) and agreed that the point was alreadycovered by article 13. In any event, it would only lead toconfusion if two major legal instruments—the ViennaConvention on the Law of Treaties and the presentconvention-defined such a basic legal concept of inter-national law as a treaty in two different ways.

36. Mr. MUSEUX (France) said he would again stressthat the Franco-Swiss amendment was concerned primarilywith a question of drafting, more particularly as it affectedthe French version of the article. At the same time, heappreciated that, in the English version, the word "com-petence" was perhaps not an absolutely accurate renderingof the French word "competences". He would thereforehave no objection if the word "responsibility" wereretained in the English version.

37. With regard to the remarks made on the phrase"exercise of competence", in reference to colonial powers,he would point out that the authors of the amendmentwere quite clear that the exercise of competence by a Statein a given area did not imply that it was actually competentin that area.

38. Mr. MASUD (Pakistan) said that, while there ap-peared to be some difficulty with the French version ofparagraph 1 (b), the English version, as proposed by theInternational Law Commission, seemed to have generalsupport and should therefore, in his view, be retained.

39. He was unable to accept either of the two Cubanamendments, since the amendment to paragraph 1 (a) wasalready covered by article 13 and the amendment toparagraph 1 (b) was covered, by paragraph 3 of theInternational Law Commission's commentary which statedthat the term "succession of States" was used "as referringexclusively to the fact of the replacement of one State byanother in the responsibility for the international relations°f territory, leaving aside any connotation of inheritance ofrights or obligations on the occurrence of that event"(A/CONF.80/4, p. 17).

40. Mr. MAIGA (Mali) said that one point must beclearly understood by all, namely, that in considering theterm "succession of States", the International Law Com-niission had drawn a very sharp distinction between, on theone hand, succession of one State to another in the

responsibility for international relations of territory, and onthe other hand, transfer of the rights and obligations arisingunder treaties from the predecessor State to the successorState. On that basis, it had excluded such rights andobligations from its definition of "succession of States", tothe extent that they were provided for under otherprovisions.

41. The Franco-Swiss amendment, however, sought todraw a certain analogy with internal law, by assimilatingStates to individuals and vesting them with legal person-ality; in his view, that could lead to quite unacceptableresults. Bearing in mind the definition of State responsi-bility, as laid down by the International Law Commissionwithin the context of an internationally wrongful act, heconsidered that the term "exercise of competence" couldmean the exercise of certain acts which might ultimatelylead to those rights and obligations which the InternationalLaw Commission had decided to exclude from the defi-nition being introduced into the notion of succession.Moreover, the last part of the definition, reading "for theinternational relations of territory", had been adopted bythe International Law Commission with a view to avoidingthe possibility of disputes arising out of a possible conflictwith the terms of paragraph 1 (f), which laid down adefinition of the term "newly independent State".

42. As to the Cuban amendments, the amendment toparagraph 1 (a) was unnecessary since, in order to be valid,it sufficed if a treaty fulfilled the following three con-ditions: first, it was in written form, secondly, it wasgoverned by international law, and thirdly, it was embodiedin a single instrument or in two or more related instru-ments. With regard to the Cuban amendment to para-graph 1 (b), he would prefer to retain the text as draftedsince, for the reasons he had already explained, a referenceto rights and obligations in the definition could give rise todifficulty.

43. Mr. PAPADOPOULOS (Cyprus) said that the pro-posed amendments to paragraph 1 (b) of article 2 were notacceptable to his delegation; the introduction of theconcept of "competence" lent itself to various interpret-ations, and would create more problems then it wouldsolve. It therefore supported the text proposed by theInternational Law Commission. Furthermore his delegationsupported the view of the representative of the UnitedKingdom concerning the Cuban amendment to paragraph1 (a), that to insert the word "validly" would be superflu-ous.

44. Mr. RANJEVA (Madagascar) said that his delegationhad some difficulty with the notion of responsibility asimplied in subparagraph 1 (b) of article 2, since in publiclaw responsibility was the sanction of the exercise ofcompetence; that view of responsibility did not appear tobe reflected in the International Law Commission's com-mentary and he could envisage a number of legal difficultiesif the text were adopted as it stood. Politically speaking itwas hard to see how any colonial power could be legallyentitled to any such right in international relations, and solong as there was any implication that responsibility might


lie with the colonial power, his delegation could notsupport the text as it stood. The notion of the exercise ofcompetence might be acceptable in spite of all its inherentlegal and political difficulties, provided it did not relate tothe legal person to which responsibility was attributed andprovided it excluded the question of enjoyment of rightsand title to competence.

45. Mr. DUCULESCU (Romania) said that his delegationwould have preferred to see a specific definition ofsuccession of States based on the idea of the continuity ornon-continuity of a treaty, as it had stated at the previoussession. As far as the definition of succession in article 2 ofthe draft was concerned, in the majority of cases, particu-larly with newly independent States, it was not simply aquestion of the replacement of one State by another in theresponsibility for the international relations of territory;there were in fact profound political and legal changesinvolved which affected every area of the life of a Stateincluding its international treaties.

46. The Franco-Swiss amendment (A/CONF.80/C.1/L.41/Rev.l) contained nothing that might help to clarifythe notion of succession of States. Furthermore, the notionof "competence" was closely linked in international law tothe idea of the supremacy of international law over thenational law of sovereign States, which was unacceptable tohis delegation. It did, however, support the Cuban amend-ment to subparagraph 1 (a), since it was clear that onlylawful, validly concluded agreements, and not unlawful orunequal treaties could give rise to a succession of States.

47. Cuba's proposal concerning subparagraph (b) mightusefully be referred to the Drafting Committee.

48. Mr. OSMAN (Somalia) said, with regard to theFranco-Swiss amendment, that he agreed with the represen-tatives of Mali and Madagascar that the connotation of theword "responsibility" in international law was differentfrom that of "competence", and that the notion ofresponsibility should be retained in subparagraph 1 (b) ofthe International Law Commission's draft. Indeed, since thesponsors of the amendment had conceded that the word"responsibility" might be retained in the English version,there seemed to be no need for further discussion on thepoint.

49. As far as the Cuban amendment was concerned, hemaintained his view that insertion of the word "validly"would emphasize that agreements covered by the Conven-tion were validly and legally concluded and would help anyinterpretation which might subsequently be required. Hefully supported the Cuban amendment.

50. Mr. SILVA (Peru) said that although the Franco-Swiss amendment was constructive, his delegation felt thatthe International Law Commission's text was closer to themore acceptable concept of responsibility, and shouldtherefore be retained. As far as the Cuban amendment forthe insertion of the word "validly" was concerned hisdelegation was of the opinion that article 13 adequatelycovered the difficulties envisaged and so it could notsupport that amendment.

51. Mr. PEREZ CfflRIBOGA (Venezuela), referring tothe Franco-Swiss amendment, said that his delegation haddoubts about the use of the word "responsibility" in theEnglish version and the word "competences" in the Frenchversion of texts concerning international relations. Al-though he would not object to the amendment beingreferred to the Drafting Committee, he felt that there was abasic difference between the two expressions and would behappier if the same expression could be used in all texts.His delegation preferred the use of the word "responsi-bility" rather than "competences" since it was alwaysemployed in relation to treaties, and competence had aconnotation of legitimacy which responsibility did not.

52. With regard to the Cuban amendment, his delegationagreed that the insertion of the word "validly" might besuperfluous in view of the terms of article 13. However, itcould certainly do no harm and his delegation would nottherefore object to it.

53. Mr. RYBAKOV (Union of Soviet Socialist Republics)said he shared the views of the representatives of Ethiopia,Pakistan and Mali, and supported the text of article 2 asdrafted by the International Law Commission.

54. Mr. MUDHO (Kenya) said that his delegation appreci-ated the desire of France, Switzerland and Cuba to improvethe International Law Commission's text, but was notconvinced that their proposed amendments filled any gapor materially improved the text. It could not thereforesupport any of them.

55. Mrs. BEMA KUMI (Ghana) said that her delegationwas of the opinion that the International Law Com-mission's text for article 2 should be acepted as it stood.Cuba's concern over the validity of treaties within the scopeof the Convention was fully taken care of by article 13. TheFranco-Swiss amendment was unacceptable because of thediffering interpretations to which the notions of "responsi-bility" and "competence" were open.

56. Mr. SILVA (Peru) requested that a vote be taken onarticle 2 without further debate.

57. Mr. MARESCA (Italy), on a point of order, requestedthat the discussion be suspended and resumed in themorning.

58. Sir Ian SINCLAIR (United Kingdom) on a point oforder, in view of the lateness of the hour, moved that thedebate on article 2 be closed and a vote be taken on thearticle forthwith.

59. Mr. MONCAYO (Argentina) said that he must categ-orically oppose the unusual proposal by the UnitedKingdom representative. To move the closure in the middleof a debate on a fundamental issue was totally unaccept-able. He formally requested that the motion be withdrawn.

60. Mr. AHIPEAUD (Ivory Coast) said he supported therequest made by the representative of Argentina.


61. The CHAIRMAN invited the Committee to vote onthe motion to close the debate.

The motion for the closure was carried by 59 votes to 6,with 6 abstentions.

62. The CHAIRMAN declared the debate on article 2closed. He invited the sponsors of the amendments to statewhether or not they wished to maintain them.

63. Mrs. VALDES PEREZ (Cuba) said that, quite apartfrom the implications of article 13, her delegation's amend-ment related specifically to the definition of "treaty".However, in the interests of reaching a solution, the Cubandelegation withdrew its amendment.

64. Mr. RITTER (Switzerland) said that it had neverbeen the aim of his delegation or of the French delegationto change the substance of article 2, only to improve itswording. The discussion had shown that only draftingchanges were required, and he therefore did not request avote. He did suggest, however, that the Drafting Committeeshould carefully consider the equivalents of the words usedin the various working languages. The France/Swiss amend-ment itself was withdrawn.

65. The CHAIRMAN proposed that the Committeeapprove the International Law Commission's text and referit to the Drafting Committee, which would consider thesuggestions of the representative of Switzerland.

66. Mr. MONCAYO (Argentina) said he claimed the rightto explain his vote before the vote was taken.

67. His delegation considered that the amendment pro-posed by France and Switzerland was timely. The conceptof "replacement of one State by another in the responsi-bility for the international relations of territory", as itappeared in the International Law Commission's draft,could be more closely refined. Responsibility implied anautonomous institution in international law and the use ofthe term in article 2, although referring directly to theinternational relations of a territory, was not satisfactory.The amendment proposed by France and Switzerland,which spoke of the exercise of competence for inter-national relations in respect of a particular territory, wasmore accurate. The fears expressed by some delegationsthat the use of the word "competence" would somehowimply a presumption of validity were unjustified, since theProposed text referred to a de facto situation, the exercise°f competence, without expressing any judgment on thelegality of such competence.

68. That being so, and referring to subparagraph 1 (c) ofarticle 2, which defined "predecessor State" as "a Statewhich has been replaced by another State on the occur-rence of a succession of States" his delegation wished to

emphasize that that concept of "predecessor State" was ofan instrumental character and had a purely technicalsignificance, limited to the purpose of the application ofthe present Convention. In no way did it prejudge thelegality of the competence exercised by the so-calledpredecessor State, nor did it affect the continuity orintangibility of the legal and historical titles of a Statewhich had been deprived de facto of its lawful competence.

69. Mr. KOH (Singapore) said that his delegation con-sidered that the definition of "newly independent State"given in subparagraph 1 (/) of article 2 applied to thesituation of his country after its separation from Malaysiain 1965. It had been a colonial territory until 1963 when itbecame part of the Federation of Malaysia, a merger whichcould be regarded as an experiment that failed. Disre-garding, therefore, the short "experimental period", hisdelegation considered that the concept of "newly indepen-dent State" covered the sort of situation which gave rise toSingapore's attainment of independence as a sovereignState.

70. Mr. OSMAN (Somalia), speaking in explanation ofvote, said that in supporting the International Law Com-mission's text of paragraph 1 (a), his delegation wished toplace on record its understanding that "internationalagreements" as referred to in the Convention were agree-ments validly and legally concluded and could not beconstrued to mean the illegal, unequal treaties signed withcolonial powers and relating to the nineteenth centuryterritorial arrangements affecting Somalia.

71. The CHAIRMAN proposed that the InternationalLaw Commission's text be referred to the Drafting Com-mittee.

72. Mr. PERE (France) said that as there had been anumber of explanations of vote, he would request that avote be taken on article 2. His delegation intended to voteagainst it as it stood. The Franco-Swiss amendment hadbeen a substantial one but had been withdrawn, but itswithdrawal had been the consequence of the vote on article33 of the Convention. The definition of "newly indepen-dent State" as it stood corresponded to the concept in theConvention itself which was not acceptable to his del-egation.

73. The CHAIRMAN invited the Committee to vote ondraft article 2 as it stood.

Draft article 2 was provisionally adopted by 71 votes to5, with I abstention, and referred to the Drafting Com-mittee.

The meeting rose at 12.30 a.m. on 16 August 1978.

126 Summary xecords — Committee of the Whole

53rd MEETINGThursday, 17 August 1978, at 1145 a.m.

Omirman: Mr. RIAD (Egypt)



REPORT OF THE DRAFTING COMMITTEE ON THE TITLESAND TEXTS OF ARTICLES 30 TO 39 ADOPTED BY THEDRAFTING COMMITTEE (A/CONF.80/C.1/4)

1. Mr. YASSEEN (Chairman of the Drafting Committee),introducing the Drafting Committee's first report of theresumed session, said that the document in question(A/CONF.80/C.1/4) contained the titles and texts ofarticles 30 to 39 proposed by the Drafting Committee. Itmade no mention of the proposal for a new article 22 bis(A/CONF.80/C.l/L.28/Rev.l) which had been referred tothe Drafting Committee at the 32nd meeting of theCommittee of the Whole,1 since that proposal had beenwithdrawn at the Committee's 40th meeting.2

2. In its work during the resumed session, the DraftingCommittee had continued its practice of taking intoaccount not only the titles and texts of articles as they hadbeen referred to it by the Committee of the Whole and theamendments thereto which that body had formally trans-mitted to it as drafting suggestions, but also, as far aspossible, suggestions made orally at meetings of theCommittee of the Whole. It had also borne in mind theterminology of existing codification conventions, particu-larly the Vienna Convention on the Law of Treaties, withwhich the instrument that the Conference was preparingwas closely linked. The Committee of the Whole and theplenary Conference might wish to bear in mind, whenconsidering taking action on the basis of the reports of theDrafting Committee;, that, in keeping with the practice ofcodification conferences, the Drafting Committee wouldreview the entire text of the draft convention prior to itsopening for signature, for the purpose of ensuring thegreatest possible consistency in the terminology used in thevarious language versions.

3. Apart from the amendments that had been required bythe change in the status of the articles, that had beenreferred to it, to that of provisions of a draft convention, agood many of the modifications which the Drafting

Committee had made to articles 30 to 39 were theconsequence of changes that had been approved in otherarticles during the first part of the Conference in 1977.Thus, since the phrase "with the object and purpose of thetreaty or would radically change the conditions for itsoperation"—in Spanish "con el objeto y elfin del tratado ocambiaria radicalmente las condiciones de su ejecu-cion"—had been employed for purposes of clarity in theEnglish and Spanish versions respectively of articles 14, 16and 17, the Drafting Committee proposed that it shouldalso be used in: article 30, paragraph 1 (b), and para-graph 3; article 31, paragraphs 3 and 6; article 32, para-graphs 2 and 5; article 33, paragraph 2 (b); article 34,subparagraph (c); article 35, paragraph 3; and article 36,paragraph 2.

4. The Committee had also noted that, in the Englishversion of the articles, the expressions "falling within" and"falling under" and variations thereof had been usedindiscriminately, whereas, as a general rule, throughout theFrench and Spanish versions, one or other of only twoterms had been used systematically. For the sake ofconsistency, therefore, the Committee proposed that theEnglish expression "falling under", corresponding to theFrench expressions, "relevant de" and the Spanish ex-pressions, "al que sea aplicable", should be used wheneverthe reference was to an article or to a paragraph thereof,and that the term "falling within", corresponding to theterms "appurtenant a" and "que corresponda a"', should beused whenever the reference was to a category. Changes tothat effect had been made in article 30, paragraph 2 {a)\article 31, paragraphs 1 and 2; article 32, paragraph 1;article 35, paragraphs 1 and 2; and article 36, paragraph 1,of the English version, and in article 30, paragraph 2,subparagraphs (a) and (b), and article 32, paragraph 4 (a),of the French version.

5. As in the case of article 17 and other articles,3

conformity with the other language versions had beenensured by the replacement, where appropriate, of theFrench expression "a Vegard du traite" by the words "autraiti". That change had been made in article 32, para-graphs 1 and 3—with a consequential amendment toarticle 32; paragraph 4—and in article 36, paragraphs 1and 3. In order to ensure that the same tense was used in alllanguages, the Spanish version of article 30, paragraph 1,subparagraph (a), and paragraph 2, subparagraphs (b)and (c), and of article 34, subparagraph (a), had beenamended by the substitution for the expression "haya(n)convenido" of the expression "convengan".

6. The other changes which the Drafting Committee hadmade concerned only individual articles, and he wouldtherefore comment on them when introducing the pro-vision concerned, beginning with article 30.

1 Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties, vol. I, Summary records ofthe plenary meetings and of the Committee of the Whole, (UnitedNations publication, Sales No. E.78.V.8), p. 225, 32nd meeting,para. 13.


3 Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties.,, {op. cit), p. 23->F35th meeting, paia, 8.

53rd meeting - 1 7 August 1978 127

Article 30 (Effects of a uniting of States in respect oftreaties in force at the date of the succession of States)^

7. Mr. YASSEEN (Chairman of the Drafting Committee)said that the Drafting Committee had decided to align thetext of paragraph 2 (b) with that of paragraph 1 (a) byreplacing the expression "all the parties" by the expression"the other States parties", in all languages. For the sake ofconsistency with the other language versions, the Frenchversion of paragraph 2 had been amended by the replace-ment of the opening word "un" by the word "tout", whilethe Spanish version of paragraph 2 (a) had been amendedby the replacement of the expressions "en relacibn con"and "de notification" by the expressions "respecto de" and"haga una notification" respectively.

8. The CHAIRMAN said that, if there were no objec-tions, he would take it that the Committee agreed to adopton second reading the title and text of article 30 asproposed by the Drafting Committee.

It was so agreed. s

Article 31 (Effects of a uniting of States in respect oftreaties not in force at the date of the succession ofStates)6

9. Mr. YASSEEN (Chairman of the Drafting Committee)said that the Drafting Committee had made no particularchanges in either the title or the text of the article.

10. The CHAIRMAN said that, if there were no objec-tion, he would take it that the Committee agreed to adopton second reading the title and text of article 31 asproposed by the Drafting Committee.

It was so agreed.7

Article 32 (Effects of a uniting of States in respect oftreaties signed by a predecessor State subject to ratifi-cation, acceptance or approval)*

11. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that, in the Spanish version, the words "consujecion a", which had appeared in the title and the firstparagraph of the article, had been replaced, as in thecorresponding provisions of article 18, by the words "are-serva de". The Spanish version had been further modified,for the purpose of conformity with the other languages, bytiie redrafting of the end of the introductory portion of

For earlier discussion of article 30, see 37th meeting, 38thmeeting, paras. 2-70 and 39th meeting, paras. 1-58.

For the adoption of article 30 by the Conference, see 13thPlenary meeting.

For earlier discussion of article 31, see 40th meeting, para. 19.


For earlier discussion of article 32, see 40th meeting, pa-ras. 20-24.

paragraph 4 to read "... respecto de la cual el tratado fuefirmado por uno de los Estados predecesores, a menos:",and by the replacement, in paragraph 4 (a) of the word"este" by the words "el tratado".


It was so agreed.9

Article 33 (Succession of States in cases ofseparation of parts of a State)1 °

13. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the Drafting Committee had made noparticular changes in either the title or the text of thearticle.

14. Mr. PEREZ CHIRIBOGA (Venezuela) said he notedthat the Drafting Committee had retained the differencebetween the wording of article 30, paragraph 1 (a), andarticle 33, paragraph 2 (a), to which his delegation1 J haddrawn attention. Since the Expert Consultant had statedthat he knew of no particular reason for that difference,1 2

his delegation would be grateful if the Chairman of theDrafting Committee would explain why it had not beenremoved.

15. Mr. YASSEEN (Chairman of the Drafting Com-mittee) replied that the Drafting Committee, when studyingthe text of article 33, had considered the point raised bythe representative of Venezuela but had decided to retainthe text proposed by the International Law Commissionbecause it had felt that, since article 33 must be interpretedin the light of the general law of treaties, it would beperfectly clear what States were meant by the phrase "theStates concerned".

16. Mr. PEREZ CHIRIBOGA (Venezuela) said that,while his delegation would not press for the amendment ofarticle 33, it did wish to make it perfectly clear that itwould have preferred to see a uniform wording of theprovisions of articles 30 and 33 which he had mentioned.

17. Mr. FONT BLAZQUEZ (Spain) said that, sincearticle 33 referred to treaties that were already in force, itwould seem logical to speak in paragraph 2 (a) of "theStates parties". His delegation would not, however, pressthe point.

18. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said he must make it clear that article 33 was to be

9 For the adoption of article 32 by the Conference, see 13thplenary meeting.

For earlier discussion of article 33, see 40th meeting, paras.25-58, 41st meeting, 42nd meeting, paras. 1-62, 47th meeting,paras. 32-44, 48th meeting and 49th meeting, paras. 1-15.

1 1 See 47th meeting, para. 38.1 2 Ibid., para. 40.


interpreted in the context of the law of treaties and that itwas that which gave the phrase "the States concerned" itsunambiguous meaning.


It was so agreed.13

Article 34 (Position if a State continues after separationof part of its territory)14

20. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that, for the purpose of conformity witharticle 33, paragraph 2 (a), the Drafting Committee pro-posed that subparagTaph (a) of article 34 should read, in alllanguage versions "the States concerned otherwise agree".The Spanish version had been harmonized with that inother languages by the insertion, in the introductoryportion of the article, of the words "del resto" before thewords "de su territorio".


It was so agreed.15

Article 35 (Participation in treaties not in force at the dateof the succession of States in cases of separation of partsof a State)1 6

22. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that, after due consideration, the DraftingCommittee had decided that it would be preferable, forreasons of clarity, not to replace the text proposed by theInternational Law Commission by the Finnish amendment(A/CONF.80/C.1/L.39) that had been submitted to it bythe Committee as a drafting suggestion.17 The DraftingCommittee had made no particular change to either thetitle or the text proposed by the International LawCommission.

23. The CHAIRMAN said that, if there were no objec-tion, he would take it that the Committee agreed to adopt

1 3 Foi the adoption of article 33 by the Conference, see 13thplenary meeting.

1 4 For earlier discussion of article 34, see 41st meeting, paras.63-64 and 42nd meeting, paras. 63-68.


16

paras. 1-8.For earlier discussion of article 35, see 43rd meeting,

on second reading the title and text of article 35 asproposed by the Drafting Committee.

It was so agreed.'8

Article 36 (Participation in cases of separation of parts of aState in treaties signed by the predecessor State subjectto ratification, acceptance or approval)19

24. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the Drafting Committee proposed that, asin the case of article 32, the title and the first paragraph ofthe Spanish version of the article be amended by thereplacement of the words "con sujecion a" by the words"a reserva de".


It was so agreed.2 °

Article 37 (Notification)'11

26. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the Drafting Committee had preferred thetext proposed by the International Law Commission to theFinnish amendment (A/CONF.80/C.1/L.40) that had beensubmitted to it by the Committee as a drafting suggest-ion.22 In addition, it had considered that the suggestionmade by the representative of Italy23 went beyond itsterms of reference.

27. Some minor changes had been made to the Inter-national Law Commission's text. In paragraph 1 of theEnglish version, the word "must" had been replaced by theword "shall", in keeping with normal legal practice.Various changes had been made in the French and Spanishversions, in order to align them with those of article 21.Thus in the French version, the word "en" had beeninserted before the word "fait" in paragraph 2, while inparagraph 3 (b), the words "aura ete" had been replaced bythe word "est". In the Spanish version, paragraph 4 hadbeen amended to read "... tratado o por otra causa, deinformar a las partes o los Estados contratantes de knotificacion o de toda comunicacibn a ella referente quehaga el Estado sucesor". For reasons of precision andconformity with the texts in other languages, the Spanish

1 8 For the adoption of article 35 by the Conference, see 13thplenary meeting.

For earlier discussion of article 36, see 43rd meeting, paras.5-6.

2 0 For the adoption of article 36 by the Conference, see 13thplenary meeting.

1 For earlier discussion of article 37, see 43rd meeting, para5-25-31.

See 43rd meeting, para. 3.

22

23See 43rd meeting, para. 31.

Ibid., para. 30.

53id meeting - 17 August 1978 129

version had been further amended by the insertion, inparagraph 5, of the word "solo" after the word "destina-da".

28. Mr. MARESCA (Italy) said that his delegation ap-preciated that the suggestion it had made concerningarticle 37 had gone beyond the terms of reference of theDrafting Committee. In those circumstances, it would notrequest any change in the text now proposed by theDrafting Committee, but it did wish to state that itinterpreted paragraph 2 of that text as in no way precludingthe continuation, in cases where the recipient so agreed, ofthe well-established practice of the issuance by diplomaticmissions, without the production of full powers, ofnotifications of the types in question.

29. The CHAIRMAN said that the Committee took noteof the statement by the representative of Italy. If therewere no objection he would assume that the Committeeagreed to adopt, on second reading, the title and text ofarticle 37 as proposed by the Drafting Committee.

It was so agreed.2*

Article 38 (Cases of State responsibility andoutbreak of hostilities)2 s

30. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the Drafting Committee had made noparticular changes in either the title or the text of thearticle.


It was so agreed.2 6

Article 39 (Cases of military occupation)21

32. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that, in the English version of the article, theword "do" had been replaced by the word "shall", in orderbetter to reflect the legislative nature of the provision.

33- The CHAIRMAN said that, if there were no objec-tion, he would take it that the Committee agreed to adoptOn second reading the title and text of article 39 asProposed by the Drafting Committee.



Foi earlier discussion of article 38, see 43rd meeting, paras.57-64


27For earlier discussion of article 39, see 43rd meeting, paras.

J/-64.2 R


REPORT OF THE DRAFTING COMMITTEE ON THE TITLESAND TEXTS OF ARTICLES 6 AND 7 ADOPTED BY THEDRAFTING COMMITTEE (A/CONF.80/C.1/5)

Article 6 (Questions of succession coveredby the present Convention)29

34. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the text of article 6 had been provisionallyadopted by the Committee of the Whole on the recommen-dation of the Informal Consultations Group and referred tothe Drafting Committee. That text had been the originalInternational Law Commission draft and the DraftingCommittee had adopted it without change.

35. The CHAIRMAN said that, if there were no objec-tion, he would take it that the Committee agreed to adopton second reading the title and text of article 6 as proposedby the Drafting Committee.

It was so agreed3 °

Article 7 (Temporal applicationof the present Convention)31

36. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the text of article 7 had been provisionallyadopted by the Committee of the Whole on the recommen-dation of the Informal Consultations Group and referred tothe Drafting Committee.

37. Paragraph 1 was the International Law Commission'stext without change. The Drafting Committee had made anumber of drafting changes in paragraphs 2, 3 and 4. Inparagraph 2, difficulties of interpretation had directlyaffected the wording: the original text did not impose anytime-limit on a declaration by a successor State under thatparagraph although, according to the second sentence, theagreement between two States making declarations ac-cepting the retroactive application of the Convention wouldtake effect "upon the entry into force of the Convention"between them. The Committee had reached the conclusionthat the first sentence was to be interpreted in a literalsense; it had accordingly eliminated the discrepancy byreplacing the words "such States" by the words "theStates" and adding the phrase "making the declarations orupon the making of the declaration of acceptance, which-

2 9 For earlier discussion of article 6 at the resumed session, see50th meeting, paras. 1-42 and 51st meeting, paras. 4-9. For dis-cussion of article 6 by the Committee of the Whole at the 1977session, see Official Records of the United Nations Conference onSuccession of States in Respect of Treaties... (op. cit), pp. 48-57,58-64 and 233; 6th meeting, paras. 17-48, 7th meeting, 8th meeting,paras. 19-66, 9th meeting, paras. 1-17 and 34th meeting, paras. 7-8.

For the adoption of article 6 by the Conference, see 14thplenary meeting.

For earlier discussion of article 7 at the resumed session, see50th meeting, paras. 1-42, and 51st meeting, paras. 4-9. For thediscussion of article 7 by the Committee of the Whole at the 1977session, see Official Records of the United Nations Conference onSuccession of States in Respect of Treaties... {op. cit.), pp. 64-88and 233, 9th meeting, paras. 18-55, 10th meeting, 11th meeting,12th meeting, and 34th meeting, paras. 7-8.


ever is later". The remaining changes to paragraph 2 weredesigned only to clarify the text and bring the wording intoline with that used elsewhere. To make the meaning clearer,the phrase "declare that it may apply" at the beginning ofthe paragraph had been replaced by "make a declaration".To lighten the text and make it legally more correct andprecise, the words at the end of the first sentence, "declaresits willingness to accept the declaration of a successorState", had been replaced by the phrase "make a declar-ation accepting the declaration of the successor State". Atthe end of the paragraph, the words "such succession" hadbeen replaced by "that succession of States" since the term"succession of States" had been defined in article 2 and theword "such" was ambiguous. The word "then" at the endof the paragraph had been deleted as it had been renderedredundant by the other amendments.

38. Paragraph 3 had also raised a problem of inter-pretation. However, that problem was not related to thetextual changes in paragraph 3 which, with one exception,had been designed merely to bring it into line with thepreceding paragraph. The exception was the addition at thebeginning of the second sentence of the words "upon themaking of the declaration of acceptance", with the inten-tion of specifying the date from which the declaration andits acceptance would take legal effect. Other changes tobring the text into line with that of paragraph 3 were thereplacement at the beginning of the paragraph of the word"declare" by the phrase "make a declaration", of thephrase "declares its willingness to accept the declaration"by the phrase "declares its acceptance of the declaration"and of the words "such succession" by the words "thatsuccession of States". The word "then" at the end of theparagraph had been deleted.

39. The most important change in paragraph 4 was thereplacement of the term "deposit", referring to thenotification, by the word "communication", which hadbeen deemed more appropriate. Accordingly, the finalphrase "deposit with him that notification and its terms"had been replaced by "communication to him of thatnotification and its terms". Furthermore, since, as was theinvariable practice in the case of multilateral treatiesconcluded under the auspices of the United Nations, theSecretary-General would be the depositary of the Conven-tion, the phrase "Secretary-General of the United Nations"had been replaced by "the depositary", as suggested by theFrench delegation.

40. At the request of the Committee of the Whole,3 2 theDrafting Committee had provided a title for article 7,namely, "Temporal application of the present Convention".

41. Sir Ian SINCLAIR (United Kingdom) said that thepresent text of paragraph 3 of article 7 restricted thepossibility of making a declaration to the time of signingthe Convention. That made paragraph 3 of limited valuesince the Convention was open for signature for only alimited period. He therefore proposed that the possibilityof bringing about the provisional application of the

32 See 51st meeting, para. 7.

Convention be extended in order to make it possible for aState which became independent after the expiry date forthe signature of the Convention to make a declarationunder paragraph 3 that it would apply the provisions of theConvention provisionally. That could be done by amendingthe opening phrase to read "A successor State may at thetime of signing or of expressing its consent to be bound bythe present Convention ..." and amending the phrase "toany other signatory State" to read "to any other signatoryor contracting State".

42. Mr. SCOTLAND (Guyana) said he supported theUnited Kingdom proposal. He wondered, however, if thereference in that proposal to the time of signing wasnecessary, though he had no objection to its retention if theCommittee found the amendment acceptable. He alsowondered whether paragraphs 2 and 3 took account of thesituation where a State might sign the Convention andsubsequently apply its provisions provisionally, withouthaving made a decision on ratification.

43. Mrs. BOKOR-SZEGO (Hungary) said that if theUnited Kingdom amendment was adopted, there would bea gap in the Convention. The present text offered thepossibility of making a provisional declaration of accept-ance at the time of signing. If the United Kingdomamendment was adopted, the idea of provisional acceptancewould fall. She therefore preferred the text as it stood.

44. Mr. ARIFF (Malaysia) said that, as he understood it,the purpose of paragraph 3 was to cover the situation wherea successor State proposed to apply the Conventionprovisionally as an interim measure, without any intentionof applying it permanently. The mere act of signing gavesuch a State a certain latitude, whereas expression ofconsent to be bound, in accordance with the UnitedKingdom formulation, suggested a definitive acceptance ofthe Convention which might subsequently prove un-desirable.

45. Mr. STUTTERHEIM (Netherlands) said he supportedthe United Kingdom amendment in view of the fact thatthe Convention would be open for signature for only oneyear. The Netherlands Antilles was now preparing forindependence but would not be ready within that period. Itshould be given an opportunity of applying the provisionsof the Convention provisionally under paragraph 3.

46. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the Drafting Committee had given mostcareful thought to article 7 and was of the opinion that, nthe expression "signing the Convention" were retained,paragraph 3, on provisional application, would be nothingmore than a provisional paragraph because after a year orso, it could be a dead letter. The Drafting Committee hadnot wished to examine that matter, however, because suchexamination was beyond its competence.

47. If a successor State expressed its consent to be boundby the Convention, it thereby became a party to it and theConvention could be applied as it stood. What would be tWposition of that successor State if it wished its relation


with other signatory States which had not ratified theConvention to be subject to its provisions? It appearedfrom the present text of the article that such a State couldnot benefit from the provisional application of the Conven-tion.

48. Speaking as the representative of the United ArabEmirates, he said that the Committee of the Whole shouldexamine and clarify the question. It would seem un-desirable to formulate the paragraph in such a way that itoperated only for one year.

49. Mr. MAIGA (Mali), said that, according to theopening sentence of paragraph 2, a successor State mightmake a declaration "at the time of expressing its consent tobe bound by the present Convention or at any timethereafter". The second sentence began with the phrase"Upon the entry into force of the Convention..."; hewould like to ask the Chairman of the Drafting Committeeto explain the scope of the paragraph, which his delegationhad difficulty in interpreting. His misgivings about para-graph 3 had been increased by the United Kingdomamendment. In general terms, it was possible to have aseparate paragraph regulating the provisional application ofthe Convention. However, he had difficulty in supporting aparagraph which laid down that provisional application wasavailable for one year but that it could not be applied inrespect of another signatory State unless the latter hadratified the Convention. The Drafting Committee had doneits best but it was for the Committee of the Whole to stateclearly exactly what its wishes were in the matter.

50. The CHAIRMAN suggested that further discussion ofarticle 7 be deferred and that States with a particularinterest in the article should consult informally amongthemselves.

51. The Drafting Committee had not yet taken a decisionwith regard to the division of the Convention into parts andthe titles of those parts. He suggested that the DraftingCommittee be requested to submit its recommendations tothe Committee of the Whole.


The meeting rose at 1.10p.m.

33

1-15.For resumption of the discussion, see 56th meeting, paias.

54th MEETINGFriday, 18 August 1978, at 11.35 a.m.




SECOND REPORT OF THE INFORMAL CONSULTATIONSGROUP (A/CONF.80/C.1/L.62)1

Articles 12 and 12 bis

Draft resolution concerning article 30

1. Mr. RITTER (Switzerland), Chairman of the InformalConsultations Group, said that the Group's second report(A/CONF.80/C.1/L.62) contained a proposed additionalparagraph 3 to article 12 and a proposed new article 12 bis.Although those two provisions were submitted in the orderin which they should appear in the convention, the Grouphad in fact approved the text of the proposed new article12 bis before considering the proposed paragraph 3 toarticle 12. As stated in paragraph 5 of the report, the Groupwished to emphasize the link between the proposed newarticle 12 6is and article 12.

2. There was one small drafting point: the Spanish-speaking members of the Group had pointed out that, inthe Spanish version of the proposed paragraph 3 ofarticle 12, the words "obligaciones convencionales" werenot a correct rendering of the term "treaty obligations" andshould be replaced by "obligaciones derivadas de tratados".

3. Lastly, the report also contained a proposed draftresolution concerning article 30, for consideration by theCommittee.

4. Mr. MONCAYO (Argentina) said that the InformalConsultations Group had rightly emphasized the linkbetween article 12 of the International Law Commission'sdraft and the proposed new article 12 bis, which establishedthe pre-eminence of the "principles of international lawaffirming the permanent sovereignty of every people andevery State over its natural wealth and resources". Only byestablishing a direct relationship between the two rules,which together formed a coherent whole, would the newprovision acquire its full significance and would the extentof its object and purpose so far as succession of States inrespect of treaties was concerned be completely under-stood.

5. Before analysing the content of the new provision, itwas first necessary to consider the nature of article 12 asproposed by the International Law Commission. There wasno doubt that it presented the Conference with one of itsmost complex problems. Indeed, at the 20th meeting of theCommittee, held on 20 April 1977, the Expert Consultanthad himself pointed out that, from the point of view ofdrafting and purport, article 12 was the most difficult of allthose drafted by the International Law Commission.2 TheItalian representative, for his part, had deemed it to be themost important article in the draft, yet at the same timeone of the most ambiguous and had even referred to it assomething of a nightmare.3 Many other delegations had

1 See 50th meeting, foot-note 1.2 Official Records of the United Nations Conference on Suc-

cession of States in Respect of Treaties, vol. I, Summary records ofthe plenary meetings and the meetings of the Committee of theWhole (United Nations publication, Sales No. E.78.V.8), p. 140,20th meeting, para. 34.

3 Ibid., p. 142, 21st meeting, paias. 14-15.


expressed their concern at a text which embodied suchvague concepts.

6. In the face of an article of such complexity andimportance, it was only right that a conference engaged inthe work of codification should first ask itself whetherarticle 12 codified an international custom, or whether itestablished a new rule for the progressive development ofinternational law. The answer was difficult, and thatdifficulty stemmed from the broad-ranging nature of thearticle itself.

7. The International Law Commission, in its commentaryto article 11 (A/CONF.80/4, pp.37 etseq.), had nothesitated to affirm that a boundary treaty was not affectedby a succession of States. That view was supported by animpressive body of evidence, based on State practice andlegal doctrine, and had been further strengthened andconfirmed by the decision of the United Nations Con-ference on the Law of Treaties to exclude boundary treatiesfrom the rule relating to fundamental change of circum-stances. Article 11 restated the principle laid down in theVienna Convention on the Law of Treaties which guaran-teed the sanctity of treaties that established a boundary orboundary regime. That was only right and necessary.Article 11 embodied a recognized rule, based on acceptedcustom, which had been codified in a convention and whichhad a specific material content.

8. But what was neither right nor necessary was to vestwith the same character of sanctity indiscriminately, all theother territorial regimes covered by article 12, where itspoke of the "use of any territory" and "restrictions uponits use", without further qualification. In his delegation'sview, there was no customary rule, based on practice andrecognized as mandatory, which imposed respect for allobligations and rights arising under a treaty relating to theuse or restrictions upon the use of any territory and whichwas thus so-called embracing in character as to make ofarticle 12 a hermetically-sealed provision allowing for noexception or attenuation whatsoever.

9. The International Law Commission's commentary toarticle 12 (ibid.) only served to confirm his delegation in itsview. Nothing therein suggested that any practice existedwhich extended to all possible uses or restrictions upon theuse of a territory for the benefit of a foreign territory or ofa group of States established by treaty; nor that thepractices described were sufficiently general and constant;nor, again, that they had been uniformly and spontaneouslyagreed. That the International Law Commission was itselfaware of those facts was apparent from the observation inparagraph 35 of its commentary to articles 11 and 12 that:"Some further precedents of one kind or another might beexamined, but it is doubtful whether they would throw anyclearer light on the difficult question of territorial treaties"(ibid., p. 46). The International Law Commission hadfurther noted that, in the case of territorial treaties, thosecovered by article 12, "not infrequently other elementsenter into the picture, such as an allegation of fundamentalchange of circumstances or the allegedly limited com-petence of the predecessor State" (ibid.), elements whichdid not affect boundary treaties.

10. From those facts, therefore, the first conclusion to bedrawn was that treaties covered by article 11 were not to beplaced on the same footing as treaties covered by article 12.There was thus no justification for the absolute rule laiddown in article 12 which sought to regulate in the samemanner as article 11 a different type of situation.Article 11, unlike article 12, translated custom into atreaty. There were, of course, certain territorial regimeswhich did give rise to special situations affecting thesuccessor State. He had in mind, for example, such rights,established by treaty, as rights of passage, rights relating tofree zones and rights relating to freedom of com-munication. The evidence did not however suggest—and hewould again refer to the International Law Commission'scommentary to article 12—that that "category of treatiesshould embrace a very wide range of so-called territorialtreaties" (ibid.).

11. His delegation could see no valid reason for layingdown a general rule on the basis of a few limited cases.Indeed, it would resist a rule that was lacking in precisionand that introduced assumptions unsupported by a soundbody of practice. It was for that reason that it considered itnecessary to draw attention to those cases which did notfall strictly within the terms of such a rule and which, asthe result of an erroneous interpretation arising out of theunduly general nature of its formulation, might otherwisebe deemed so to do. That had been the purpose of theArgentine sub-amendment (A/CONF.80/C.1/L.27) to aMexican amendment (A/CONF.80/C.1/L.19) to article 12in providing that that article should not apply to treatieswhich impeded "the full exercise by the successor State ofits sovereignty over the natural wealth and resources of itsown territory". There was no doubt that treaties relating tothe establishment of military bases in the territory of thesuccessor State, as well as treaties inhibiting the exploi-tation of its natural resources, fell outside the terms ofarticle 12, since they lacked the truly objective territorialnature of localized treaties which the rule embraced. TheUnited Kingdom representative,4 and the Expert Con-sultant^ had taken the view that the Mexican amendmentand the Argentine sub-amendment thereto served no usefulpurpose, since, in their opinion, they bore no relationshipto article 12. But his delegation none the less considered thatthe article must set out clearly what was implicit, so as toleave no room for doubt.

12. The aim of his delegation was to ensure that, betweenthe basic "clean slate" principle, as laid down in articles 14and 15, and the specific exception provided for inarticle 11, nothing of a general and ambiguous nature wasimported which would create uncertainty and open the wayfor important derogations from the general principle. Anysuch uncertainty was in large measure dispelled by theterms of the proposed article 12 bis,

13. Neither article 12 nor any other article in the draftaffected the right of the successor State to permanentsovereignty over its natural wealth and resources. That right

4 Ibid., p. 137, 20th meeting, para. 17.5 Ibid., p. 140, 20th meeting, paras. 36-37.


had been recognized as a principle of international law inmany resolutions of the United Nations General Assembly,including resolutions 1803 (XVII) and 3281 (XXIX). Theyaffirmed the right of each State to exercise full andpermanent sovereignty over its natural wealth and re-sources, which embraced the right to possess, use anddispose of such wealth and resources. They reflected theconvictions of the whole international community; theyanswered a need; and they expressed an opinio juriswhich, supported by subsequent practice, had since gainedthe standing of a positive rule of international law,

14. The restatement in the draft of the principle of thepermanent sovereignty of every State over its naturalwealth and resources made it clear that the "clean slate"principle laid down in articles 14 and 15 must cover alltreaties concluded by the predecessor State which relatedto the exploitation of the natural resources of the successorState. No treaty which compromised the natural wealth ofa successor State could be imposed on that State against itswill. The same basic principles applied as those underlyingthe "clean slate" rule—the right to self-determination andto independence and the need to guarantee that the rule ofres inter alios acta prevailed-but those principles werefurther strengthened by the positive affirmation of theprinciple of the permanent sovereignty of every State overits natural wealth and resources.

15. With the inclusion of the proposed new article 12 bis,which would perfect the International Law Commission'sdraft, the Conference would have gone beyond the confinesof the convention itself and taken a positive step forward inthe promotion of the progressive development of inter-national law.

16. For those reasons, his delegation supported theproposals submitted by the Informal Consultations Groupin its second report.

17. Mr. de OLIVEIRA (Angola) said that his delegationentertained certain doubts about the proposed draft resol-ution concerning article 30. Those doubts arose not fromany objection regarding the competence of the Conferenceto deal with such a matter; but solely from the view, basedon a consideration of the content and purpose of the draftresolution, that it would serve no useful purpose.

18. With regard to article 12, his delegation was unable toagree with the contention that the question of militarybases was entirely alien to the economy of the draft. It wastherefore gratified to note that the Conference had beenable to settle that question in express and unambiguousterms. It took the same view in regard to the provision forsafeguarding the principle of international law relating tothe permanent sovereignty of every people and every State°Ver its natural wealth and resources.

19. The adoption of the provisions proposed by theInformal Consultations Group would make it quite clearthat no undertakings in perpetuity could be given so far asroih'tary bases and the exploitation of the natural wealth^d resources of peoples were concerned. The importance°f those provisions, which derived from the jus cogens

principle of the right of peoples to self-determination, wasself-evident.

20. For those reasons, his delegation wholeheartedlysupported both the proposed addition of a new paragraph 3to article 12 and the proposed new article 12 bis, whichtogether marked a step forward in the progressive devel-opment of international law.

21. Mr. NAKAGAWA (Japan) said that his delegationwould have no difficulty in accepting the proposal relatingto article 12, which was an improvement on the originaltext, and also the proposed draft resolution concerningarticle 30.

22. With regard to the proposed new article 12 bis, whilehis delegation agreed that the basic principle of thepermanent sovereignty of every State over its naturalwealth and resources, as laid down in resolution 1803(XVII) of the United Nations General Assembly, wasgenerally accepted, it considered that there was a lack ofunanimity as to the exact scope of application of thatprinciple. It also had some doubts as to its relevance to thequestion of succession of States in respect of treaties. In thecircumstances, therefore, if a vote were taken on thatproposal, his delegation would abstain.

23. Mr. PEREZ CHIRIBOGA (Venezuela) said that, ashis delegation had made clear in the Informal ConsultationsGroup, it considered that the right place for the proposednew article 12 bis was immediately following article 12, inview of the essential link between the two provisions.

24. His delegation endorsed the views set forth inparagraphs 43-45 of the International Law Commission'scommentary to articles 11 and 12 (A/CONF.80/4,pp. 47-48) and in paragraph 1 of its commentary to article13 {ibid., p. 48). Articles 11 and 12 in particular, and theconvention in general, would be unacceptable in hisdelegation's view if article 13 were not included. Ittherefore considered that the inclusion of the proposed newarticle 12 bis would not be interpreted as in any wayaffecting the International Law Commission's very clearpurpose in placing article 13 at the place which it nowoccupied in the draft.

25. Subject to that understanding, his delegation couldsupport in their entirety the proposals submitted by theInformal Consultations Group.

26. Mrs. BEMAKUMI (Ghana) said that it might bepreferable to speak in the proposed article 12 bis of the"principle", rather than the "principles", of internationallaw concerning sovereignty over natural resources, in orderto emphasize that the reference was to General Assemblyresolution 1803 (XVII).

27. Mr. RYBAKOV (Union of Soviet Socialist Republics)said his delegation believed that there had been a generalunderstanding within the Informal Consultations Groupduring the drafting of the Group's proposals concerningarticles 12 and 12 bis, that no succession of States wouldaffect the demilitarization of certain areas of territory, such


as Spitzbergen and the Aland Islands, the prohibition of theestablishment of military bases on foreign territory, thefreedom of navigation on international rivers and canals andin international straits, or international regimes such as thatwhich applied in Antarctica. That being so, his delegationfully supported the proposals in question.

28. Mr. DOG AN (Turkey) said that his delegation fullysupported the proposed new paragraph 3 of article 12,which was the most important article in the draft con-vention both by reason of its form and by reason of itscontent. Its first and second paragraphs referred not only tolegal questions related to objective situations but also topolitical problems which were particularly evident in peacetreaties. The Turkish delegation attached the highestimportance to the succession by a State to obligationsarising out of peace treaties establishing the demilitarizedstatus of parts of a territory. Demilitarization of the partstransferred to the successor State by the predecessor State,by explicit or implicit agreement, was the condition sinequa non for the conclusion of such treaties, which createdan objective situation in the general interest of the parts ofa region. Whatever change occurred in the exercise ofinternational jurisdiction over those parts and whatevertheir denomination, the successor State was bound by thatsituation.

29. The Turkish delegation fully supported the newparagraph 3 of article 12 and also article 12 bis. Thosechanges alone would enable the draft Convention to enterinto force and, at some future date, to be applied.

30. Mrs. THAKORE (India) said that the additionalparagraph proposed by the Informal Consultations Groupfor article 12 was fully consistent with the fundamentalprinciples of self-determination and sovereignty. It wasabundantly clear that the continuation of treaties providingfor the establishment of foreign military bases on whatsubsequently became the territory of a successor Statewould be incompatible with the independent status of thatState. The proposed paragraph was, therefore, valuable andone to which her delegation could give its full support.

31. It also fully supported the proposed article 12 bis.The concept of permanent sovereignty over natural wealthand resources had been fully recognized and affirmed inresolutions of the United Nations General Assembly andinternational instruments. In the interests of peace and ofharmony in international relations, her delegation urged theCommittee to adopt both proposals, which would con-tribute to the progressive development of international law.

32. Mr. SAHOVIC (Yugoslavia) said that his delegation,which had already stated its position on the establishmentof foreign military bases and the principles of sovereigntyover natural resources during the first part of the session,considered the Informal Consultations Group's proposalsconcerning articles 12 and 12 bis to represent a com-promise, but a compromise that was reasonable in the lightof contemporary international law and the balance offorces within the Conference. Approval of those proposalswas essential if the future convention was to have any

chance of entering into force. While his delegation wouldhave preferred to see the contents of both proposalsincorporated in article 12, it would vote for the provisionsin the form in which they had been put before theCommittee.

33. His delegation recognized that the application ofarticle 30 might give rise to the kind of dispute to whichthe draft resolution proposed by the Informal Con-sultations Group referred, but it was not convinced of theneed for a separate provision relating to their settlement.Since it seemed, however, that a majority of the membersof the Informal Consultations Group and of the Committeeof the Whole felt that such a provision was required, hisdelegation would not oppose the draft resolution.

34. Mr. OKWONGA (Uganda) said that his delegationwas not altogether satisfied with the proposals of theInformal Consultations Group concerning articles 12 and12 bis, but would accept them in a spirit of compromise.Article 12 as currently proposed left his delegation withcertain doubts which acceptance of the Argentine amend-ment to that article would have dispelled.

35. Mr. ZAKI (Sudan) said he agreed with the represen-tative of Argentina that the proposed article 12 bis must beread in conjunction with article 12 as proposed by theInternational Law Commission. The proposed new articledid much to alleviate the concern which had led hisdelegation to favour the deletion of the original text ofarticle 12, or, failing that, the amendment of the text asproposed by the delegations of Mexico and Argentina. Hisdelegation would therefore vote for the proposed newarticle and, since it believed that the general rule laid downin article 12 should not apply either to foreign militarybases or to natural resources within the territory of asuccessor State, for the proposed addition to article 12itself.

36. Mr. GRIGORIEV (Ukrainian Soviet Socialist Re-public) said that the proposals relating to articles 12 and 12bis contained in the report of the Informal ConsultationsGroup showed the seriousness with which the Conferencetook the matter of treaties that established special ter-ritorial regimes. The proposed addition to article 12 was ofgreat importance and answered the requirements of con-temporary international life.

37. There was a logical connexion between that proposaland the proposed new article 12 bis, which referred, inwording akin to that employed in recent United Nationsresolutions, to what were generally recognized principles ofinternational law. The inclusion of those two proposals inthe future Convention would constitute an important steptowards the completion of the process of decolonization,and was supported by his delegation.

38. Mr. KASASA-MUTATI (Zaire) said he was concernedthat the use in the proposed addition to article 12 of theexpression "providing for" seemed to render the paragraphapplicable only to treaties relating to military bases thatwere not in existence at the time of succession. His


delegation believed that no successor State should have totake over any of its predecessor's obligations with respectto foreign military bases, whether existing or planned, andthat that point had been covered by the amendmentproposed by Argentina to the original article 12.

39. It was also concerned that the draft Conventioncontained no definition of the term "people", which wasused for the first time in the proposed new article 12 bis.

40. Mi. MAIGA (Mali) said that his delegation's supportfor the Informal Consultations Group's proposals in re-lation to articles 12 and 12 bis should be seen in the light ofits general belief that it was better to have legal rules which,although imperfect, were likely to be applied, than ruleswhich were perfect but were unlikely to be applied. Hehoped that the Drafting Committee would give somethought to the possibility of amending the proposedaddition to article 12 so that, like the existing paragraphs ofthat article, it referred to both obligations and rights.

41. With regard to the proposed draft resolution con-cerning article 30, he wished to make it clear that theInformal Consultations Group had not reached a consensuson the text of the draft resolution, but had merely agreedto bring its existence to the attention of the Committee ofthe Whole. There had, in fact, been formal expressions ofopposition to the draft resolution within the Group, and hisown delegation remained convinced that the text as it stoodwould add nothing to the future convention. The draftresolution referred only to disputes that arose from auniting of States and did no more than state that it wouldbe "desirable" to settle such disputes through negotiation,whereas his own delegation considered that the procedurefor the settlement of disputes which the Committee of theWhole had already adopted should automatically applywhenever any form of succession resulted in the incom-patibility of treaty regimes.

42. Mr. GILMASSA (Mexico) said that his delegationfully supported the new paragraph 3 of article 12 proposedby the Informal Consultations Group and the emphasis laidon the link between article 12 and the proposed new article12 bis. Clearly the successor State should be given theopportunity not to accept obligations contracted by thepredecessor State, such as those arising out of the estab-lishment of foreign military bases. There should be nolimitation on the permanent sovereignty of every peopleand every State over its natural wealth and resources.Commitments might be given to other countries, and thatwas admissible when they were given for normal purposesof trade, development or co-operation, but not when theywere for the establishment of military bases or when theyinvolved a limitation of the permanent sovereignty ofPeoples over their natural wealth and resources. Militarybases, whether for the benefit of the predecessor State, or°f third States, represented a permanent threat of the use01 force and violence and constituted an element of"itimidation. It was fundamental that restrictions of thatj ^ d of the free use of territory should not be transmitted

the successor State, since they imperilled its stability andthe existence of good neighbourly relations, which were

essential to the maintenance of the basic principles of theself-determination and independence of peoples.

43. As far as the resolution concerning article 30 wasconcerned, his delegation fully supported it since it wasquite clear that the principle to be upheld in a conventionof the kind they were preparing was that, in the event ofincompatible situations resulting from treaties, the suc-cessor State and the other States parties to the treatyshould use their best endeavours to solve the problem bymutual agreement, which in a great many cases would avoidhaving to have recourse to other more complicated forms ofsettlement of disputes.

44. Mr. DUCULESCU (Romania) said that his delegationfully supported the proposal to add a third paragraph toarticle 12, since the establishment of foreign military basescould in no way be considered as an objective situationimposing obligations on the successor State. While the firstparagraph of article 12 covered a wide range of situations,requiring a clear legal and political basis for continuity,there was a new category of international agreementsrelating to disarmament which should be taken intoconsideration, notably those concerning the creation ofinternational nuclear-weapon-free peace and security zoneswhich, unlike military bases, could be considered asrepresenting an objective situation opposable to all States.

45. As far as article 12 bis was concerned, his delegationhad already stressed the need to respect the principles ofinternational law, including that of the permanent sover-eignty of States over their natural wealth and resources, asthe only basis for the succession of States in respect oftreaties.

46. While recognizing the usefulness of negotiation in thecases covered by the draft resolution concerning article 30,he wondered whether it was necessary to have such aprovision in a special Conference resolution.

47. Mrs. VALDES PEREZ (Cuba) said that her del-egation supported the proposal to add a third paragraph,which included the Cuban delegation's proposal concerningmilitary bases, to article 12. The paragraph completed thesense of the article which, in its original form, had beenunacceptable. Her delegation also supported article 12 bisand would vote in favour of both articles at the appropriatetime.


[Agenda item 10]

48. Mr. STUTTERHEIM (Netherlands) said he would liketo ask the Chairman whether it would be possible for thework of the Conference to be so organized that the final actcould be signed on the morning of Wednesday, 23 August.

49. The CHAIRMAN said that he would consult thePresident of the Conference and report to the Committee indue course.



55th MEETINGFriday, 18 August 1978, at 4,20p.m.




SECOND REPORT OF THE INFORMAL CONSULTATIONSGROUP (A/CONF.80/C.1/L.62)1 (concluded)

Articles 12 and 12 bis

Draft resolution concerning article 30

1. Mr. JOMARD (Iraq) said he supported the thirdparagraph that the Informal Consultations Group, in itssecond report (A/CONF.80/C.1/L.62), recommendedshould be added to the text of article 12 proposed by theInternational Law Commission, because the new paragraphmarked a step forward in the progressive development ofinternational law in that it reduced the internationalobligations of newly independent States. He also supportedthe new article 12 bis proposed by the Group, whichconfirmed a rule of law accepted by the internationalcommunity and afforded newly independent countries anopportunity to assure their future.

2. Mr. VREEDZAAM (Suriname) said that, in his view,newly independent countries must be given the possibilityof rejecting any treaty obligation accepted by the prede-cessor State and concerning the establishment of militarybases on the territory to which the succession of Statesrelated, as was provided by the new paragraph 3 of article12 proposed by the Informal Consultations Group. He alsosupported the principle of the permanent sovereignty ofevery people and every State over its natural wealth andresources, set forth in the new article 12 bis. He would,therefore, vote in favour of those two texts, as well as thedraft resolution concerning article 30.

3. Mr. BENDI-FALLAH (Algeria) said that, in a spirit ofconciliation, he would support the contents of the twoprovisions submitted by the Informal Consultations Groupin its second report. He would have preferred the draftsubmitted by the Argentine delegation, because he con-sidered that the two provisions formed a whole and that itwould have been better not to separate them so as not toreduce their force and political significance. He would,however, vote in favour of the text proposed by the Group,because that text removed the ambiguities of article 12 asproposed by the International Law Commission and un-equivocally affirmed the predominance of the principles of

the self-determination of peoples and the independence ofStates.

4. His delegation considered, however, that the referenceto the principles of international law was insufficientlyprecise, and it was in a spirit of conciliation that it agreedto the omission from article 12 bis of a reference to GeneralAssembly resolution 1803 (XVII) concerning the per-manent sovereignty of States and peoples over their naturalwealth and resources. Out of legal purism, the InformalConsultations Group had not referred to that resolution,but it remained clearly understood that a reference to theprinciples of international law constituted, in particular, areference to United Nations resolutions, including GeneralAssembly resolution 1803 (XVII) and the resolutionrelating to the Charter of Economic Rights and Duties ofStates. His delegation welcomed the fact that the problemposed by the establishment of foreign military bases andthe principle of the permanent sovereignty of every peopleand every State over its natural wealth and resources hadbeen taken into consideration. It would, therefore, despitetheir imperfections, support article 12, paragraph 3, andarticle 12 bis in the name of what it considered to be theprogressive development of international law.

5. He shared the concern expressed by the representativesof Angola, Mali and Romania,2 among others, about thedraft resolution relating to article 30. In his opinion thatdraft resolution contributed nothing new and might, rather,reduce the scope of the provisions of the conventionrelating to the settlement of disputes.

6. Mr. RANJEVA (Madagascar) noted that the legeferenda nature of the codification of certain rules meantthat the Conference would inevitably have to take aposition on political issues. He was gratified, therefore, thatthe Informal Consultations Group had reached a com-promise solution on the problems dealt with in articles 12and 12 bis, which were essentially political problems.

7. With respect to article 12, paragraph 3, his delegationconsidered that the expression "military bases" must betaken to mean not only fixed military installations but allinstallations that could be used for military purposes as wellas any ground, sea or air facilities or services. It should benoted that his country had consistently pressed for theIndian Ocean to be made a peace zone.

8. With respect to article 12 bis, his delegation consideredthat the principle of the sovereignty of peoples over theirnatural resources must be understood as comprising theright to exploit natural resources because, if the right ofexploitation was not incontrovertibly acknowledged, theprinciple set forth in article 12 bis would be meaningless.

9. Mr. DIENG (Senegal) congratulated the InformalConsultations Group on having reached a compromisebetween positions of principle that at the outset had beenvery far apart, reflecting as they had divergent nationalinterests. Of course, the compromise appeared to him to be

1 See 50th meeting, foot-note I. See 54th meeting, paras. 17, 41 and 46 respectively.


inadequate, and he would have preferred the Argentineproposal—supported by the non-aligned countries—whichhad preserved the fundamental unity existing between thequestion of natural resources and that of military bases.Nevertheless, out of a desire for conciliation, he wouldagree to article 12, paragraph 3, and article 12 bis, asproposed by the Informal Consultations Group. In article12 bis, however, it would be preferable, in the phrase "theprinciples of international law" to put the word "principle"in the singular, because the phrase "the principles ofinternational law" referred to international law in generaland thus somewhat restricted the principle of the per-manent sovereignty of every people and every State over itsnatural wealth and resources. He also hoped that thatprinciple would be interpreted as comprising the right ofevery State to exploit its natural wealth and resources.

10. In his opinion, the draft resolution concerning article30 served no useful purpose because, when treaty obli-gations or rights were incompatible there was an objectivedispute and the parties must then resort to consultation andnegotiation under the normal procedure for the settlementof disputes provided for by the convention.

11. Mr. ASHTAL (Democratic Yemen) said that heunreservedly supported article 12, paragraph 3, and article12 bis as proposed by the Informal Consultations Group. Inview of the article on the settlement of disputes recentlyadopted by the Committee, he considered that the draftresolution concerning article 30 served no useful purpose,but he would have no difficulty in accepting it if theCommittee deemed it necessary.

12. Mr. AHIPEAUD (Ivory Coast) said that his country,which respected international or regional servitudes im-posed on States, agreed that treaties relating to boundaryregimes and treaties establishing an international regimerestricting the use of a territory, as in the case ofinternational waterways and the right of innocent passagein the territorial sea, should not be affected by a successionof States. It was not its understanding, however, that therules of succession of States did not apply to treatiesproviding for the establishment of foreign military bases,particularly since such bases might have been used to fightagainst the successor State. Far from correcting thetendentious text of article 12 proposed by the InternationalLaw Commission, the new paragraph 3 proposed by theInformal Consultations Group established the rule ofcontinuity for treaties concerning the establishment offoreign military bases; that was unacceptable to his del-a t ion. That rule might be understandable in the case ofJnilitary bases of world interest, but even in that case thetreaty should form the subject of negotiations with thesuccessor State. His delegation therefore reserved its pos-ition with respect to article 12.

^3. With regard to article 12 bis, his delegation saw noEjection to affirming the permanent sovereignty of everyState over its natural wealth and resources, but it wassomewhat apprehensive about the use of the wordPeople".

14. Mr. KOROMA (Siena Leone), referring to article 12bis, said that in the Declaration on permanent sovereigntyover natural resources (General Assembly resolution 1803(XVII)), the General Assembly had mentioned the inalien-able right of all States freely to dispose of their naturalwealth and resources in accordance with their nationalinterests and the need to respect the economic indepen-dence of States and had added that "The exploration,development and disposition of such resources, as well asthe import of the foreign capital required for thesepurposes, should be in conformity with the rules andconditions which the peoples and nations freely consider tobe necessary or desirable with regard to the authorization,restriction or prohibition of such activities... In cases whereauthorization is granted, the capital imported and theearnings on that capital shall be governed by the termsthereof, by the national legislation in force, and byinternational law." Article 12 bis, on the other hand,reserved "the principles of international law affirming thepermanent sovereignty of every people and every State overits natural wealth and resources". That article referred onlyto the principles of international law, whereas the Declar-ation he had mentioned referred to both international andnational law. In an instrument subsequent to the Declar-ation, namely the Charter of Economic Rights and Dutiesof States, it was not stated that the principles of inter-national law should govern economic relations. In thatrespect, article 12 bis marked no progress. Moreover,supposing that there was justification for mentioning theprinciples of international law in article 12 bis, somefurther clarification should be given, because the content ofthose principles was uncertain. Neither the principle ofacquired rights nor that of national treatment clarified thequestion. The Declaration on permanent sovereignty overnatural resources militated against prompt, adequate andeffective compensation. Moreover, the principles of econ-omic self-determination, independence, sovereignty andequality were all principles of international law. Ac-cordingly, although it appreciated the efforts which theInformal Consultations Group had made in formulating thetext of article 12 bis, his delegation considered that thearticle needed to be improved.

15. Mr. ABOU-ALI (Egypt) said that his delegationwould vote for each of the texts contained in the secondreport of the Informal Consultations Group. Article 12,paragraph 3, enunciated a principle that was absolutelyself-evident. Article 12 bis, although drafted in vague terms,was entirely acceptable to his country, which had alwayssupported resolutions affirming the permanent sovereigntyof States over their natural wealth and resources, but, it wasthe view of his delegation that such ambiguity could not beused to derogate from the well-established rules of inter-national law. The draft resolution concerning article 30 wasnot really necessary, for it fell within the framework of thepeaceful settlement of disputes, but his delegation wouldjoin in any consensus on the resolution.

16. Mr. MARESCA (Italy) said he considered that article12, paragraph 3, was a useful complement to the previous


two paragraphs. Each term in the new paragraph had beencarefully weighed and that addition was to be welcomed.

17. His delegation also welcomed the new article 12 bis,for it had always felt that the question covered by thatprovision should be dealt with in a separate article. Withregard to the wording, however, it would have beenpreferable to use expressions that were more in keepingwith legal terminology. It would be better to speak of rules,rather than principles, of international law, for rules wereobligatory in character. Again, the term "people" was notvery satisfactory, since permanent sovereignty over naturalwealth and resources did not lie with a people, as an ethnicentity, but with the successor State, as a legal and politicalentity. In short, article 12 bis constituted a referral to theinternational legal order. It had the advantage of beginningwith a forceful formulation, but it was regrettable that thatformulation appeared again in article 13, a fact that tookaway some of its force.

18. In his opinion, the draft resolution concerning article30 did not duplicate the provisions on the settlement ofdisputes but had a scope of its own; moreover, it related tothe ordinary questions which might arise in the case of auniting of States and not to real disputes.

19. In order to make it quite clear that the process ofconsultation was separate from that of negotiation, theword " o f should be inserted before the word "nego-tiation" in the second preambular paragraph. Consultationwas simply an exchange of views, whereas negotiationimplied the will to reach agreement.

20. Mr. GILCHRIST (Australia) said that article 12, asdrafted by the International Law Commission, had notposed any serious difficulties for his delegation, eventhough it had contained some ambiguities. However, theparagraph 3 proposed by the Informal Consultations Groupdid not present any special difficulties either, and hisdelegation would therefore vote in favour of it.

21. In the Informal Consultations Group, his delegation,out of a desire to facilitate the elaboration of a compromisetext, had not raised any objections to the wording of article12 bis. Nevertheless, it was somewhat disturbed by thereplacement of the words "relating to" by "affirming". Theformer expression showed quite clearly that all the prin-ciples of international law were applicable, whereas the newterm might be interpreted as restricting the application ofthe general principles of international law as far as theprinciple of the permanent sovereignty of every people andevery State over its natural wealth and resources wasconcerned.

22. His country recognized the permanent sovereignty ofevery State over its natural resources but considered that aState was also under an obligation not to prejudice thelegitimate interests of neighbouring States and other Statesdependent on shared natural resources. The principles ofinternational law did not confer on States the right tounrestricted exercise of their permanent sovereignty overtheir natural resources. The principles of international lawbeneficial to neighbouring States should be taken intoaccount. His delegation wondered whether the exception

set forth in article 12 bis was not now so general that itmight prejudice riparian rights or rights of access that wereessential to the successor State or to another party to thetreaty. Although his delegation was somewhat reassured bythe interpretation placed by a number of other delegationson article 12 bis, it would have preferred the Group to use aformula such as "in accordance with international law".Out of respect for arduously negotiated compromise texts,his delegation would lend its support to the provisionscontained in the second report of the Informal Con-sultations Group, on the understanding that the principles,or rather the rules, of international law would continue togovern situations such as those he had mentioned.

23. Mr. OSMAN (Somalia) reminded the Committee that,at the 1977 session, his delegation had stated its views onarticle 123 at some length. It fully supported the newparagraph 3 that was now being proposed.

24. Article 12 bis reaffirmed a principle already em-bodied in United Nations resolutions, namely, the principleof the exercise of permanent sovereignty over naturalresources. Reaffirmation of that general principle of inter-national law was especially justified in a convention onsuccession of-States in respect of treaties. It should benoted that article 12 bis was closely linked to article 12.

25. His delegation regarded the draft resolution con-cerning article 30 as superfluous, in that machinery for thesettlement of disputes already existed. However, it was notopposed to the draft resolution if indeed the authors hadparticular situations in mind.

26. Mr. FLEISCHHAUER (Federal Republic of Ger-many) said his delegation had always considered that article12 was closely linked to article 11. Not only boundarytreaties and treaties on boundary regimes but also treatiesof a territorial character which had been concluded in theinterests of other territories and States should remainunaffected by a succession of States. It would be idle tospeculate whether article 12 fell under the heading of thecodification or of the progressive development of inter-national law. In either event, it was based on the samereasoning as article 11: treaties of a territorial characterwhich concerned other States should follow the territory towhich they related. It was with that consideration in mindthat his delegation had always supported article 12.

27. With regard to the new paragraph 3 which it wasproposed to add to article 12, he observed that the questionof treaties on the establishment of military, naval or airbases was altogether outside the scope of the article andthat the exception for which it made provision should notbe extended. If, however, the Conference wished to add athird paragraph to article 12, his delegation would agree tothe provision.

3 Official Records of the United Nations Conference on Suc-cession of States in Respect of Treaties, vol. I, Summary records ojthe plenary meetings and of the meetings of the Committee of theWhole (United Nations publication, Sales No. E.78.V.W.pp. 134-135, 19th meeting, paras. 54-56.


28. Article 12 bis was the product of a difficult com-promise and was based on principles with an ill-definedcontent. The article was worded imprecisely in terms thatmight give rise to varying interpretations. It would havebeen better to refer simply to international law, as had beensuggested in the Informal Consultations Group. Conse-quently, his delegation would be compelled to abstain ifarticle 12 bis was put to the vote.

29. As to the draft resolution concerning article 30, itshould be emphasized that there was a gap in that article inrespect of incompatible obligations under treaties that werekept in force in accordance with the provisions of thosetreaties in the former States which had united. The draftresolution covered precisely a situation of that kind, whichwas not automatically covered by the provisions on thesettlement of disputes. His delegation therefore favouredthe adoption of the draft resolution.

30. Mr. KAKOOZA (Uganda) said that, to his mind, thedraft resolution under consideration served no usefulpurpose, since an article on the settlement of disputes hadalready been adopted. Admittedly, the term "dispute" wasnot defined in article 2, but the disagreements to which thedraft resolution related would constitute disputes andwould therefore be covered by the article on the settlementof disputes. His delegation could see no justification for thedraft resolution and was therefore unable to support it.

31. Mr. LANG (Austria), referring to the statement madeby his delegation in connexion with article 124 at the 1977session, said his delegation still took the view that article 12should be adopted as drafted by the International LawCommission. However, it appreciated the concern whichhad been expressed regarding the establishment of militarybases and the exploitation of natural resources. For thatreason, it was ready to agree to the texts proposed forarticle 12, paragraph 3, and for article 12 bis. With regardto article 12, paragraph 3, he reminded the Committee thathis country had formally undertaken not to permit theestablishment of foreign military bases on its territory. Asto article 12 bis, he did not think it essential to reaffirm theprinciple of the permanent sovereignty of every people andevery State over its natural wealth and resources, but such areaffirmation was none the less acceptable, for it placedthat principle, or rather those principles, within the generalcontext of international law, so that they were not viewedas isolated political objectives but as interdependent el-ements of international law. He had noted the fact that oneof the authors of the proposal had stated in the InformalConsultations Group that the "clean slate" principle didnot apply to treaty obligations concerning shared naturalresources; the fact that such resources were common to twoor more States meant that they were subject to the rule ofcontinuity. His delegation hoped that article 12, paragraph3> and article 12 bis would be adopted by a large majority.

32. Lastly, he pointed out that his delegation had alreadyhad occasion to commend the initiative taken in submitting

Ibid,, pp. 132-133, 19th meeting, paias. 34-44.

a draft resolution on incompatible treaty regimes and thatit supported that draft.

33. Mr. MUSEUX (France) said that he had preferred theoriginal wording of article 12, despite the element ofimprecision which it had contained. He was afraid that anyaddition to that article would only cause further uncer-tainty about its actual scope instead of improving itswording. His delegation had no fundamental objection tothe inclusion of an express reference to military bases, sinceparagraph 3 was based on the interpretation given by theInternational Law Commission. The concept of "military"bases was not, however, a legal one and the Commission'scommentary could provide only general guidance in thematter. Admittedly, an agreement on the establishment of abase did not in itself represent an obligation attaching to aterritory, but each case still had to be assessed on the basisof its particular characteristics and its true legal nature.

34. With regard to article 12 bis, the wording of whichwas not very felicitous, his delegation was of the opinionthat, if it was necessary to say anything at all—and it wasnot sure that it was—it would have been preferable to referexpressly to conformity with international law. His del-egation would therefore be unable to support that pro-vision. It was, however, true that the principles of inter-national law must be interpreted in conformity withinternational law and that to refer to those principles wastherefore to refer to customary international law. Ininternational law, there was, moreover, no principle whichcould be applied without being limited by the rules of law.Although that was how his delegation interpreted thatprovision, it could not accept it because its working was tooimprecise.

35. Mr. ROVINE (United States of America) said thatarticle 12 was perhaps the one which had caused theInternational Law Commission the greatest difficulties. Thediscussions in the Committee of the Whole had also shownhow complex its provisions were, but the Informal Con-sultations Group had been able to find an acceptablesolution in the form of the paragraph 3 which it wasproposing to add to the text of article 12. As his delegationsaw it, that paragraph was in the nature of a clarificationconcerning military bases.

36. The Informal Consultations Group had, however,been unable to achieve a genuine consensus on article 12bis. Although the idea of adding words such as "inconformity with international law" to that provision hadbeen widely supported, it had unfortunately been decidednot to retain such wording in the text to be submitted tothe Committee. His delegation could therefore not supportthat text. It did, however, interpret the principles referredto in article 12 bis in the light of General Assemblyresolution 1803 (XVII), relating to permanent sovereigntyover natural resources. In view of those considerations, itwould abstain in the vote on article 12 bis. Nevertheless, itappreciated the close link between that provision andarticle 12 and recognized the value of article 12 bis fornewly independent States. It was his delegation's under-standing that the "clean slate" principle stated in that


provision would apply essentially to the consumption or, inother words, the exploitation of natural resources, andwould not affect territorial regimes relating to such mattersas access to the sea, ports and transit rights on rivers.

37. Referring to the draft resolution concerning article30, he said that the main purpose of that text was to drawattention to the problem of the incompatibility of treatyobligations raised by article 30. It was intended merely as astatement of fact, not as an implication that the problemdealt with by the Conference would inevitably give rise todisputes.

38. Sir Ian SINCLAIR (United Kingdom) noted that, atthe 1977 session, his delegation had stated that, in itsopinion, treaties concerning military bases did not comewithin the scope of article 12, which in no way sanctionedthe continuance of such treaties.5 His delegation had nodifficulties with the new paragraph 3 relating to thatquestion, since it should be regarded as embodying theagreed interpretation of article 12, with the object ofdispelling any possible doubts. For that reason, his del-egation considered it important to retain the words "do notapply", which clearly implied that paragraph 3 could not beinterpreted as applying to treaty obligations relating to thedemilitarization of a particular region or to other regimes-such as restrictions on military activities—relating to the useof a particular region.

39. The proposed article 12 bis caused greater difficultiesfor his delegation, which would have to abstain if theprovision was put to the vote because its wording wasambiguous. His delegation had had occasion to express itspoint of view on the principle of the permanent sovereigntyof States over their natural resources in the GeneralAssembly and other bodies. While recognizing the existenceof that principle, it considered that its application wasgoverned by the principles of international law, which, inthe final analysis, ought to be able to resolve any possibleconflict between the principle of permanent sovereigntyand other concepts, such as that of acquired rights. It wasin that sense that his delegation would interpret article 12bis. Account should, moreover, be taken of GeneralAssembly resolution 1803 (XVII), which contained themost recent generally recognized description of the conceptof the permanent sovereignty of States over their naturalresources and of its relationship to international law. Healso noted that the International Law Commission had firstdecided to include article 11 and also article 12, to whicharticle 12 bis was related, in parti of the draft on thegrounds that those restrictions on the "clean slate" prin-ciple should have general application. It had then draftedarticle 33, paragraph 3, providing for the application of the"clean slate" rule in cases of separation of parts of a State.Since the Committee had decided to delete article 33,paragraph 3, the rules contained in part IV of the draftwere now based exclusively on the principle of ipso jurecontinuity. In such circumstances, it appeared that,although articles 11, 12 and 12 bis were, in principle,generally applicable, they must be interpreted and applied

5 Ibid, p. 137, 20th meeting, para. 17.

mainly, if not exclusively, in the light of the provisions ofpart III of the draft, which related to newly independentStates.

40. With regard to the draft resolution concerning article30, he said that he shared the view expressed by therepresentative of the United States.

41. Mr. EUSTATHIADES (Greece) said that it mighthave been thought that the question of military bases didnot come within the scope of an article dealing withterritorial regimes. In fact, however, the problem hadmainly been one of deciding whether or not that questionshould be dealt with in the draft. In his opinion, the newparagraph 3 of article 12 was a welcome provision and hisdelegation would vote in favour of it.

42. His delegation also considered that the InformalConsultations Group had been right to state the principle ofthe permanent sovereignty of States over their naturalresources in a separate article, even though that principlewas related to the questions dealt with in article 12.

43. The CHAIRMAN invited the members of the Com-mittee to vote first on article 12 bis (A/CONF.80/C.1/L.62,para. 3), then on the paragraph 3 which it was proposed toadd to article 12 (A/CONF.80/C.1/L.62, para. 2) and onarticle 12 as a whole and, finally, on the draft resolutionconcerning article 30 (A/CONF.80/C.1/L.62, para. 6).

Article 12 bis was adopted by 74 votes to none, with 12abstentions, and was referred to the Drafting Committee,with the request that it should propose a title for thatarticle.

Article 12, paragraph 3, was adopted by 84 votes tonone, with 1 abstention.

Article 12, as a whole, was adopted by 86 votes to none,with 1 abstention, and was referred to the DraftingCommittee, with the request that it should propose a titlefor that article.

44. The CHAIRMAN observed that, at its 5th plenarymeeting, the Conference had adopted the text of article 11,but had deferred a decision on the title of that article untilit had completed its consideration of article 12.6 Conse-quently, he suggested that the Committee should requestthe Drafting Committee also to propose a title forarticle 11.

It was so decided.7

45. The CHAIRMAN invited the members of the Com-mittee to take a decision on the draft resolution concerningarticle 30.

The draft resolution concerning article 30 was adoptedby 49 votes to 8, with 30 abstentions, and was referred tothe Drafting Committee, with the request that it shouldpropose a title for that text.8

6 Ibid., pp. 9-11, 5th plenary meeting, paras. 9-24.

For resumption of the discussion on articles 11, 12 and 12 bis,see 56th meeting, paias. 37-43.

8 For resumption of the discussion, see 56th meeting, paras-44-45.


PROPOSAL TO INSERT A NEW ARTICLE 39 ter (Miscel-laneous provisions)

46. Mr. MONCAYO (Argentina) withdrew his del-egation's amendment for the addition of a new article 39rer(A/CONF.80/C.l/L.58).


[Agenda item 10]

47. Mr. RANJEVA (Madagascar) said he would like toknow when the Drafting Committee expected to completeits work.

48. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the Drafting Committee would in anyevent have to hold one more meeting, at which it hoped tobe able to complete its work.

Hie meeting rose at 6,15 p.m.

56th MEETING

Monday, 21 August 1978, at 11.55 a.m.





REPORT OF THE DRAFTING COMMITTEE ON THE TITLESAND TEXTS OF ARTICLES 6 AND 7 ADOPTED BY THEDRAFTING COMMITTEE (A/CONF.80/C.1/5) (concluded)*

Article 7 (Temporal application of the present Convention)(concluded)*

!• The CHAIRMAN invited the Committee, before takingUP articles 2, 12 and 12 bis and the resolution concerningarticle 30, to resume its consideration of the title and textof article 7 as adopted by the Drafting Committee(A/CONF.80/C.1/5). At the 53rd meeting of the Com-roittee, further discussion of article?1 had been deferredPending informal consultations among States with a par-ticular interest in the article regarding the oral amendment

Resumed from the 53rd meeting.

See 53id meeting, paras. 50-51.

to paragraph 3 proposed in the course of that meeting2 bythe United Kingdom.

2. Sir Ian SINCLAIR (United Kingdom) said that theperiod during which the Convention would be open forsignature would expire in August 1979. The purpose of hisdelegation's amendment to paragraph 3 had been to coverthe case of a newly independent State coming into beingsubsequent to that date, which might wish to make adeclaration regarding provisional application of the Con-vention. It was a purely technical amendment and hebelieved that, as a result of the consultations mentioned bythe Chairman, those delegations which had previouslyexpressed doubts no longer objected to it.

3. Mrs. BOKOR-SZEGO (Hungary) said her originalhesitation had been caused by inaccurate interpretation ofthe English wording of the amendment. She was nowsatisfied that the amendment would not prevent the entryinto force of the Convention between States which accededto it and those which had signed but not ratified it. Shetherefore supported the amendment.

4. Mr. VREEDZAAM (Suriname) said he wished to beassociated with the amendment proposed by the UnitedKingdom and by the Netherlands, and particularly with thereference made by the Netherlands delegation to the case ofthe Netherlands Antilles.3

5. Mr. YANGO (Philippines) said that in his delegation'sview the title adopted by the Drafting Committee forarticle 7 was a little infelicitous and might cause confusion.The article preserved the recognized and accepted conceptof the non-retroactivity of treaties. It was true that thearticle set out certain exceptions to that principle, but thatshould not be allowed to detract from the fact that theprinciple itself was clearly stated in paragraph 1 and in theoriginal wording of the International Law Commission'stext. In his view, there was nothing against the retention ofthe original title as well, although the words "and ex-ceptions" might be added to cover the whole presentsubstance of the article. In introducing his report onarticle 7, the Chairman of the Drafting Committee hadmade no reference to the considerations which hadprompted the change in title and he would be happy toknow what they had been.

6. Mr. RYBAKOV (Union of Soviet Socialist Republics)said that his delegation was prepared to accept the titleadopted by the Drafting Committee. However, there wasforce in the arguments advanced by the representative ofthe Philippines and if delegations objected to the presenttitle, it might be better, in order to save time, to revert tothe International Law Commission's title.

7. Mr. ROVINE (United States of America) said that theInternational Law Commission's text of article 7 contained

2/&id.,para. 41.3 Ibid., para. 45.


a slight element of retroactivity in that it referred generallyto the "entry into force of these articles" and did notstipulate that the entry into force should be with respect tothe particular States concerned. The original title hadtherefore been inaccurate; in any event it clearly neededchanging in view of the fact that the proposed UnitedKingdom amendment offered a further possibility ofretroactivity. The term "temporal application" was apt andhe recommended that it be retained.

8. Mr. DUCULESCU (Romania) said that his delegationpreferred the Drafting Committee's text of paragraph 3. Italso considered that the present title was a good descriptionof the contents of the article.

9. Mr. NATHAN (Israel) said that the original title of thearticle had been inaccurate, for even the International LawCommission's text had provided for limited retroactivity ofthe Convention in that it referred to its general entry intoforce and had not adopted the specific formulation ofarticle 28 of the Vienna Convention, namely, "the date ofthe entry into force of the treaty with respect to thatparty".

10. Mr. AL-KHASAWNEH (Jordan) said that his del-egation had no strong views about the title of the articlebut since delegations appeared to be divided in theiropinions, it might be useful to ask the Chairman of theDrafting Committee why it had been changed.

11. Mr. YANGO (Philippines) said that, in view of thestatements which had been made by other delegations andin order to save time, his delegation was prepared to acceptthe Drafting Committee's title for article 7.

12. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said it had no longer been possible to retain theoriginal title of article 7 once the paragraphs added to theInternational Law Commission's text had provided for theretroactive application of the Convention.

13. The Drafting Committee had given a great deal ofthought to the choice of a title which would cover all thepossible applications of the Convention in time. Thehallowed expression in French legal language— "applicationdans le temps" covered both retroactivity and non-retro-activity of laws and conventions. It was thus an appropriatetitle in French for article 7 but there was some difficultyabout translating it. However, the English languagemembers of the Drafting Committee, supported by theExpert Consultant, had stated that the phrase "temporalapplication" was similarly employed by English writers onthe subject.

14. The CHAIRMAN said, if there were no objection, hewould take it that the Committee agreed to adopt theproposal by the United Kingdom that the opening part ofparagraph 3 be amended to read:

A successor State may at the time of signing or of expressing itsconsent to be bound by the present Convention make a declarationthat it will apply the provisions of the Convention provisionally inrespect of its own succession of States which has occurred before

the entry into force of the Convention in relation to any othersignatory or contracting State ..."

It was so agreed.

15. The CHAIRMAN said that, if there were noobjection, he would take it that the Committee agreed toadopt on second reading the title and text of article 7, asproposed by the Drafting Committee, as amended by theUnited Kingdom.

It was so agreed.*

REPORT OF THE DRAFTING COMMITTEE ON THE TITLEAND TEXT OF ARTICLE 2 ADOPTED BY THE DRAFTINGCOMMITTEE (A/CONF.80/C.1/6)

Article 2 (Use of terms)s

16. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the Drafting Committee had adopted thetitle and text of article 2 proposed by the InternationalLaw Commission, subject to the following changes. Inparagraph 1 (b) of the French version, the word "du",preceding the word "territoire", had been replaced by"d'un", in line with the other language versions. Inparagraph 1 (h), the phrase "or a notification referred to inarticle 37" had been replaced, in all languages, by "or anyother notification under the present Convention". Thatchange had been made in view of the Committee's decisionto add to the basic text proposed by the International LawCommission provision for notifications other than a noti-fication of succession (article 7 (4) and article C of theprovisions relating to peaceful settlement of disputes). Inparagraph 2 of the French version, the word "prejudicient"had been replaced by "prejugent", and the word "a",preceding the expression "Vemploi de ces expressions", hadbeen deleted. Lastly, as elsewhere throughout the draft, theterm "the present articles" had been replaced by "thepresent Convention".

17. Mr. EUSTATHIADES (Greece) said it seemed to himthat the expression "relations of territory", in paragraph1 (b), must perhaps be a typing error and that the correctexpression should be "relations of a territory". In theFrench version of the same sub-paragraph, it would bebetter to replace the expression "d'un territoire" by"concernantun territoire".

18. Mr. KASASA-MUTATI (Zaire) said his delegationconsidered that, notwithstanding the terms of paragraph 2

14thFor the adoption of article 7 by the Conference, seeplenary meeting.

For earlier discussion of article 2 at the resumed session, see52nd meeting, paras. 24-73. For the discussion of article 2 by theCommittee of the Whole at the 1977 session, see Official Records ojthe United Nations Conference on Succession of .States in Respectof Treaties, vol. I, Summary records of the plenary meetings and o]the meetings of the Committee of the Whole (United Nationspublication, Sales No. E.78.V.8), pp. 22 et seq., 28 et seq. and 40 «seq., 2nd meeting, paras. 6-54, 3rd meeting, paras. 1-70 an5th meeting, paras. 1-58.


of article 2, it would be advisable to include a definition ofthe term "people" since it had been introduced in article 12bis. As his delegation had already had occasion to pointout,6 it was States-not people—that would sign theConvention.

19. Mr. YASSEEN (Chairman of the Drafting Com-mittee), said that that point concerned a question ofsubstance which had not been before the Drafting Com-mittee and on which he was therefore unable to comment.

20. As to the point raised by the Greek representative, inhis view, the term "relations intemationales du territoire"could be used in the French version of paragraph 1 (b).

21. Mr. EUSTATHIADES (Greece) said that he was stillnot entirely satisfied with the French version of paragraph1 (b). The difficulty was that a partial succession of States,which would be covered by paragraph 1 (b), involved thetransfer of a territory that never had had, or would have,international relations, either before or after succession.

22. The CHAIRMAN said he should point out that somedelegations, including the Swiss delegation, took the viewthat a territory could not have international relations unlessit had a federal structure or was some other form ofcomposite State. An amendment to that effect, submittedby the delegations of France and Switzerland (A/CONF.80/C.l/L.41/Rev.l), had not, however, been accepted. Ittherefore seemed to him that the matter was settled, apartfrom the drafting point concerning the English version ofparagraph 1 (b).

23. Mr. MUDHO (Kenya) said that the Informal Con-sultations Group had inserted the word "people" (seeA/CONF.80/C1/L.62) in article 12 bis in order to cater forthe few cases of non-self-governing territories whosepeoples nonetheless had, and should continue to have,permanent sovereignty over their natural wealth and re-sources. Whether or not it had been beyond the com-petence of the Informal Consultations Group to make suchan insertion was, however, for the Committee to decide.

24. The CHAIRMAN said that, since the word "people"had been introduced in article 12 bis, which had alreadybeen adopted by the Committee, there could be noquestion of deleting it, at least at that stage. The onlyquestion was whether or not it should be defined inarticle 2. He would point out, however, that not all theterms used in the Convention, whether of legal purport ornot, had been defined, and "State1" was a case in point. Hispersonal view was that the phrase "every people and everyState", in article 12 bis, should be given its ordinary natural•leaning.

25- Mr. P£REZ CHIRIBOGA (Venezuela) said that,while his delegation understood the desire of the represen-tative of Zaire for precision in the language of theConvention, it considered it would be inappropriate to


include a definition of the word "people" in article 2. Thatarticle, in its view, should be confined to definitions thatwere essential for a full understanding of all the provisionsin the Convention, in other words, to definitions of termsthat were particularly relevent to succession of States.

26. Furthermore, he understood that the phrase "everypeople and every State", which appeared in article 12 bis,was commonly used throughout the United Nations familyof organizations in articles relating to sovereignty overnatural resources. The word "people" also occurred innumerous international instruments and its full force was tobe appreciated from the fact that it appeared in the openingclause of the preamble to the United Nations Charter.

27. Lastly, any attempt to define the word "people"would take days rather than hours. In the circumstances, hewould appeal to the representative of Zaire not to insist onhis suggestion.

28. Miss WILMHURST (United Kingdom), referring tothe point raised by the Greek representative regarding theEnglish version of paragraph 1 (&), said that the DraftingCommittee had adopted the text proposed by the Inter-national Law Commission, and the reason why the Com-mission had proposed that an article, whether definite orindefinite, should be omitted from the phrase "inter-national relations of territory" was clearly stated in itscommentary to article 2, and in particular in paragraph 4thereof (A/CONF.80/4, pp. 17-18). That somewhat vagueterm covered both a particular territory and parts of aterritory and, even though it had presented some problemsof translation, she believed it to be correct.

29. Mr. MAIGA (Mali) said that, in the French version ofparagraph 1 (b), his delegation would prefer the expressionproposed by the International Law Commission, namely,"relations intemationales du territoire" which; in its view;would be more appropriate in the context.

30. Mr. MARESCA (Italy) said that the definitions whichthe Committee was now considering should be viewed notas legal definitions in the dogmatic sense but as practicaltools for the better use and understanding of the Con-vention. There was no point in seeking in each and everycase for a perfection that it was quite impossible to attain.Nonetheless, he continued to think that "relations Inter-nationales d'un territoire'', in the French version, was notthe happiest of phrases and that "concernant un territoire"would be better.

31. Mr. LUKABU-K'HABOUJI (Zaire) said that, althoughhe had not been entirely convinced by the arguments thathad been advanced in support of the non-inclusion of adefinition of the word "people" in article 2, he would notpress his point. He did, however, wish to make it absolutelyclear that his delegation's reason for raising the matter wasthat the future convention concerned relations betweenStates, not between peoples.

32. Mr. MAIGA (Mali) said he still believed that theInternational Law Commission had used the expression "du


territoire" in the French version of article 2, paragraph1 (b), for a definite and valid reason and that thatexpression and its equivalents in the other languages of theConference should be employed in the final text of thearticle.

33. Mr. P£Rfi (France) said that, as he understood it, theDrafting Committee had decided to use the indefinitearticle in the French version of article 2, paragraph 1 (b),because it believed that the intention of the InternationalLaw Commission, as evidenced by the wording the Com-mission had proposed for the English and Spanish versionsof the provision, had been to refer to territory in anindeterminate sense.

34. Mr. MONCAYO (Argentina) said that it was appro-priate to use the indefinite article in the Spanish version ofthe definition, since the future convention was concernedwith cases of succession relating to different proportions ofthe territory of the predecessor State and even to areaswhich had not, strictly speaking, been part of the State.

35. Mr. MAIGA (Mali) said that he would not press forthe amendment of the text proposed by the DraftingCommittee.

36. The CHAIRMAN said that, if there were no objec-tion, he would take it that the Committee agreed to adopton second reading the title and text of article 2 proposedby the Drafting Committee.

It was so agreed1.

REPORT OF THE DRAFTING COMMITTEE ON THE TITLE OFARTICLE 11 AND THE TITLES AND TEXTS OF ARTICLES12 AND 12 bis ADOPTED BY THE DRAFTING COMMITTEE(A/CONF.80/C.1/7)

Article 11 (Boundary regimes)8

37. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that, at the first part of the session, thequestion of the title of article 11 had been left in abeyancepending a decision by the Committee on the amendment toarticles 11 and 12 proposed by Afghanistan (A/CONF.80/C.1/L.24). That amendment having been rejected, theDrafting Committee had seen no need to change the titlethat had been proposed for article 11 by the InternationalLaw Commission.



For the discussion of article 11 by the Committee of theWhole at the 1977 session, see Official Records of the UnitedNations Conference on Succession of States in Respect of Treaties...{op. cit.) pp. 113 etseq., 119 etseq., 129 and 231-232, 17th meet-ing, paras. 10-49, 18th meeting, paras. 5-88, 19th meeting, paias. 1-9and 33rd meeting, paras. 18-27.

on second reading the title of article 11 as proposed by theDrafting Committee.

It was so agreed.9

Article 12 (Other territorial regimes) (continued)

39. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the Drafting Committee had made nochange either in the title of the article or in the text ofparagraphs 1 and 2 thereof. Paragraph 3 had been simplifiedby the replacement of the words "accepted by" by theword "of. Consequent upon that change, the word "and"had been deleted from the second line of the English andFrench versions of the paragraph. In the Spanish version,the words "derivadas de tratados'' had been placed betweencommas, for the sake of clarity, while the words "apli-cardn" and "relativas al" had been replaced by the words"aplican" and "que prevean el" respectively, for the sake ofconformity with the other language versions. The Com-mittee had decided not to replace the word "do" in theEnglish version, at the beginning of the paragraph, by theword "shall", because it had felt that the paragraphaffirmed explicitly what had been stated implicitly inparagraphs 1 and 2 of the article, and that the change mightjeopardize the consensus that had been reached in theInformal Consultations Group.

Mr. MONCAYO (Argentina) said that, in the light of thetitle proposed for article 12, the third paragraph of thearticle must be interpreted as implying that treatiesconcerning the establishment of foreign military bases didnot constitute territorial regimes. His delegation believedthat it was because such treaties and others—which mightinclude treaties relating to natural wealth and re-sources—did not establish territorial regimes, that theprovisions of article 12 would not apply to them.



Article 12 bis (The present Convention and permanentsovereignty over natural wealth and resources) (continued)

42. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that, in the Spanish version, to ensureconformity with the other language versions, the DraftingCommittee had replaced the words "en los que se afirmaby the word "afirman". No other changes had been made

to the text of the article. The Drafting Committee believedthat the title it proposed for the article gave an objectiveand neutral indication of its contents.

9 For the adoption of the title of article 11 by the Conference,see 14th plenary meeting.

1 0 For the adoption of article 12 by the Conference, see Hplenary meeting.


43. The CHAIRMAN said that, if there were no objec-tion, he would take it that the Committee agreed to adopton second reading the title and text of article 12 bis asproposed by the Drafting Committee.

It was so agreed.* 1

REPORT OF THE DRAFTING COMMITTEE ON THE TITLEAND TEXT OF THE RESOLUTION CONCERNING ARTICLE30 ADOPTED BY THE DRAFTING COMMITTEE(A/CONF.80/C.1/8)

44. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that no change had been made in the text thathad been referred to the Drafting Committee by theCommittee of the Whole.

45. The CHAIRMAN said that, if there was no objection,he would take it that the Committee agreed to adopt onsecond reading the title and text of the resolution con-cerning article 30 as proposed by the Drafting Committee.

It was so agreed.12


1 For the adoption of article 12 bis by the Conference, see14th plenary meeting.

12 For the adoption of the resolution concerning article 30 bythe Conference, see 14th plenary meeting.

57th MEETINGTuesday, 22 August 1978, at 9.50 a.m.

Chairman: Mr RIAD (Egypt)


[Agenda item 11] {concluded)

REPORT OF THE DRAFTING COMMITTEE ON THE TITLESAND TEXTS OF ARTICLES A TO E RELATING TOPEACEFUL SETTLEMENT OF DISPUTES ADOPTED BY THEDRAFTING COMMITTEE (A/CONF.80/C.1/9)1

l- The CHAIRMAN invited the Chairman of the DraftingCommittee to introduce his Committee's draft for thent)Cês r e ' a t m g to peaceful settlement of disputesWCONF.80/C.1/9).

For the discussion by the Committee of the Whole of thed text of the Ad Hoc Working Group on Peaceful Settlement

™ disputes (A/CONF.80/C.1/L.60 and Corr.l), see 51st meeting,yaias 10-38 and 52nd meeting, paras. 1-23.

2. Mr. YASSEEN (Chairman of the Drafting Committee)said that the Drafting Committee, being fully aware of theimportance attached to the five articles by members of theAd Hoc Group on Peaceful Settlement of Disputes whichhad prepared the agreed text (A/CONF.80/C.1/L.60 andCorr.l), had decided to retain articles A to E as separatearticles rather than combine them into a single article. Ithad therefore formulated an appropriate title for eacharticle designed to give as succinct an idea of its contents aspossible. The designation of all five articles was provisionaland had been retained to facilitate the work of theCommittee of the Whole. The final numbering would bedecided according to their position after the presentarticle 39.

3. The Drafting Committee had retained the texts of thearticles as submitted by the Committee of the Whole, andhad only made small changes to ensure uniformity ofterminology throughout.

4. In all five articles the word "State", in relation to"parties", had been deleted, the present text referring onlyto "parties". Furthermore the expressions "to the presentConvention" or "to the Convention" had been used asappropriate, particularly with reference to "parties". Theword "parties" had been given a capital letter whenreferring to the "Parties to the Convention", in order tomake a clear distinction between those Parties and "partiesto the dispute".

Article A (Consultation and negotiation)

5. The Drafting Committee had decided to follow thegrammatical structure of the French version of Article A,and to insert the phrase "upon the request of any of them"between the words "shall" and "seek", for greater clarityand precision; the same had been done in the Spanishversion.

6. Mr. PEREZ CHIRIBOGA (Venezuela) said that anumber of Spanish-speaking delegations had found theSpanish version of articles A and B somewhat cumbersomeand possibly open to erroneous interpretation. In order notto delay the work of the Committee of the Whole, hesuggested that an informal meeting with the Chairman ofthe Drafting Committee be held later in order to bring theSpanish version into line with the French.

7. Mr. MONCAYO (Argentina) said he supported thatsuggestion.

It was so agreed.

8. Mr. FISHER (Holy See) said that he wished to statebriefly the Holy See's position as regards the machinery forthe settlement of disputes. Generally speaking, the HolySee shared the view expressed by a famous lawyer that"Legal obligations that exist but cannot be enforced areghosts that are seen in the law but are elusive to the grasp".His delegation had always strongly supported any attemptto introduce some sort of compulsory judicial or arbitralprocedure for the settlement of disputes arising out of the


operation of the present Convention. It could not fail tosee, however, that not all delegations were ready to accept acompulsory judicial procedure at the present stage ofdevelopment of the international community. The com-promise solution reached in the document before theCommittee was not an ideal solution but it had its merits,which lay in its compulsory conciliation procedure and thatprocedure went beyond mere negotiation between theparties to the dispute and was, as such, a small step towardsjudicial third party settlement procedure. For thosereasons, and with the reservation stated, the Holy See wasprepared to give its consent to the proposal before theCommittee.

9. The CHAIRMAN said that, if there were no objection,he would take it that the Committee agreed to adopt thetitle and text of article A as proposed by the DraftingCommittee.

It was so agreed.2

Article B {Conciliation)

10. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the Drafting Committee had consideredthe suggestion made by the representative of Italy con-cerning the last sentence.3 It had reached the conclusionthat the article as originally drafted gave the impressionthat the request needed to initiate the conciliation pro-cedure had to be made not only to the Secretary-General ofthe United Nations but also to the other party or parties tothe dispute. However, the procedure envisaged in thepresent articles was the same as that provided for in othercodification conventions, particularly the Vienna Con-vention on the Law of Treaties, namely, that conciliationwas obligatory on request to the Secretary-General of theUnited Nations. It was not entirely correct to speak of arequest to the other party or parties to the dispute, sincethe latter could not oppose the initiation of the conciliationprocedure. The parties were notified of the request to theSecretary-General for information only. The DraftingCommittee had therefore decided to re-word the lastsentence of article B so as to make it clear that what wasrequired was that the other party or parties to the disputeshould be informed of the request. In the English andSpanish versions, the words "specify" and "indicado" hadbeen used in connexion with the word "Annex" and"Anexo", respectively.

11. Mr. MARESCA (Italy) said he wished to thank theDrafting Committee for taking account of his delegation'ssuggestions.


the title and text of article B as proposed by the DraftingCommittee.

It was so agreed.4

Article C (Judicial settlement and arbitration)

13. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the Drafting Committee had decided todelete the words "party to the present Convention" at thebeginning of the article because it considered it incorrect,since the article provided that the time of signature of theConvention was one of the occasions when notification ofthe declaration regarding submission of the dispute tojudicial settlement or arbitration might be made. Further-more, in the English version, it had replaced the words "setforth" and "such" by the words "referred to" and "that"respectively, for greater precision. The former change hadalso been made in the Spanish version. In the Spanishversion, too, the words "como otra posibilidad" had beenreplaced by "alternativamente", so as to bring it into linewith the other versions. Finally, in the French version, theorder of the words "par la suite, a tout moment" had beeninverted so as to bring it into line with the working ofparagraph 2 of article 7.

14. The CHAIRMAN said that, if there were no objec-tion, he would take it that the Committee agreed to adoptthe title and text of article C as proposed by the DraftingCommittee.

It was so agreed.5

Article D (Settlement by common consent)

15. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the Drafting Committee had decided toreplace the opening words of the article "Without prejudiceto" by the word "Notwithstanding", which more clearlyreflected the relationship between the group of articles andthe preceding articles. A similar change had been made inthe other languages. In all languages, too, the reference tothe International Court of Justice had been placed beforethe reference to arbitration, and in the French version thephrase "deux Etats parties ou plus" had been replaced by"deux ou plusieurs parties a celle-ci".

16. The CHAIRMAN said that if there were no objection,he would take it that the Committee agreed to adopt thetitle and text of article D as proposed by the DraftingCommittee.

It was so agreed.6

2 For the adoption of article A by the Conference, see 14thplenary meeting.

3 See 51st meeting, para. 14.

4 For the adoption of article B by the Conference, see 14"1

plenary meeting.5 Foi the adoption of article C by the Conference, see l4th

plenary meeting.6 For the adoption of article D by the Conference, see 14th

plenary meeting.


Article E {Other provisions in force for the settlementof disputes')

17. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that as the five articles on peaceful settlementof disputes had to be placed in the body of the Convention,his Committee had found it preferable to replace the word"foregoing"—"qui precedent" in the French version-by aspecific reference to the four preceding articles. Further-more, for stylistic reasons, the words "the parties" hadbeen replaced by the word "them" and, in the Frenchversion, the words "ne portent atteinte awe" had beenreplaced by "n'affecte les".

18. The CHAIRMAN said that, if there were no objec-tion, he would take it that the Committee agreed to adoptthe title and text of article E as proposed by the DraftingCommittee.

It was so agreed.7

REPORT OF THE DRAFTING COMMITTEE ON THE TEXT OFTHE ANNEX TO THE CONVENTION RELATING TO THEPEACEFUL SETTLEMENT OF DISPUTES, ADOPTED BY THEDRAFTING COMMITTEE (A/CONF.80/C.l/9/Addl)

19. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the text of the annex to the Convention,as referred to the Drafting Committee, was identical withthat of the annex to the Vienna Convention on the Law ofTreaties, but it should be remembered that application ofthe annex to the present Convention should be mutatismutandis and not to the letter. The attention of somemembers of the Drafting Committee who had not beenconsulted through lack of time was drawn to a small changeagreed upon with the Secretariat, and approved by othermembers of the Drafting Committee, concerning para-graph 3 of the annex, in which the expression "any party tothe treaty" should be replaced by the expression "anyparty to the present Convention". The expression "anyparty to the treaty" was appropriate in the ViennaConvention on the Law of Treaties, particularly bearing inmind the provisions of its articles 65 and 66, but in thepresent Convention the proposed conciliation procedureconcerned only disputes regarding the interpretation orapplication of the Convention, so that the words "anyparty to the present Convention" were more suitable. Forthe sake of clarity, the Drafting Committee had alsodecided to replace the words in paragraph 2 "within sixtydays following the date of the last of their own appoint-ments" by the words "within sixty days following the dateof the appointment of the last of them".

20. Mr. PEREZ CHIRIBOGA (Venezuela) said that, inthe Ad Hoc Group on Peaceful Settlement of Disputes, hisdelegation had raised a point concerning the Spanishversion, namely, that in the Vienna Convention on the Lawof Treaties the annex refened to "la lista de los amigables

componedores", ("conciliateurs" and "conciliators" in theFrench and English versions respectively). After theadoption of the Vienna Convention, some Latin Americancountries had expressed doubts as to whether the ex-pression "amigables componedores" was the exact equiv-alent of "conciliator". Although the Venezuelan delegationitself had no problem over the expression, it had never-theless suggested that the Drafting Committee examine thepoint, and said that it would accept its decision. Seeing thatthe expression had been retained, his delegation wasprepared to accept it if the Conference was satisfied thatthe two expressions were exact equivalents. It had beenpointed out that in some Latin American legal systems an"amigable componedor" had greater powers than a con-ciliator.

21. Mr. YASSEEN (Chairman of the Drafting Com-mittee) replied that the point had not been referred to theDrafting Committee, and therefore had not been con-sidered. On behalf of the Drafting Committee, however, hewould confirm that the expression used in the Spanishversion meant only, and simply, what "conciliateur" and"conciliator" meant in French and English respectively.

22. Mr. MONCAYO (Argentina) said that he shared thedoubts expressed by the representative of Venezuela. In themunicipal law of some Latin American States, particularlycommercial law, the expression "amigable componedor"could indicate some element in the procedure for thesettlement of disputes not strictly concerned with theapplication of the law, but rather with considerations ofequity. If the wording of the Vienna Convention on theLaw of Treaties were adopted, it would have to be on theunderstanding that the term as used in the presentConvention meant "agentes de conciliacion",

23. The CHAIRMAN said that the point would be noted.If there were no objection, he would take it that theCommittee agreed to adopt the text of the annex to theConvention, relating to the peaceful settlement of disputes,as adopted by the Drafting Committee.

It was so agreed.8

REPORT OF THE DRAFTING COMMITTEE ON THE DIVISIONOF THE CONVENTION INTO PARTS AND SECTIONS ANDTITLES THEREOF ADOPTED BY THE DRAFTING COM-MITTEE (A/CONF.80/C.1/10)

24. Mr. YASSEEN (Chairman of the Drafting Com-mittee) said that the Committee of the Whole had asked theDrafting Committee to consider the division of the Con-vention into parts and sections, and the titles of those partsand sections.9 Articles 1 to 39, which had been adopted bythe Conference, largely corresponded both in form and insubstance to articles 1 to 39 of the International LawCommission's draft. The only article of substance added by

For the adoption of article E by the Conference, see 14thPlenary meeting.

For the adoption of the annex by the Conference, see 14thplenary meeting.

9 See 53rd meeting, paia. 51.


the Conference was article 12 bis, and that fell quitenaturally into place in Part One after article 12. TheDrafting Committee had also considered that each of theparts and sections of the basic draft accurately reflected thecontents of its provisions, and had consequently seen noreason either to change the division of the draft asestablished by the International Law Commission or tochange the titles of the parts and sections. The DraftingCommittee had also felt that, because of the importanceand the specific character of the five additional articles onthe peaceful settlement of disputes, it was appropriate tokeep them separate in a part entitled "Settlement ofdisputes" which had been placed after the articles whichcorresponded to the basic proposal. The Committee hadfelt that was only logical, seeing that any dispute wouldnecessarily arise from the application of the article, andthat a dispute must, in the nature of things, come beforeany settlement. In accordance with normal practice, thefinal provisions had been placed by themselves at the veryend of the Convention.

25. The CHAIRMAN said that, if there were no objec-tion, he would take it that the Committee agreed to adoptthe division of the Convention into parts and sections andthe titles thereof, as adopted by the Drafting Committee.


Adoption of the report of the Committee of the Whole(A/CONF.80/C.1/L.61 andAdd.l and 2)

26. The CHAIRMAN invited the Rapporteur to in-troduce the draft report of the Committee of the Whole(A/CONF.80/C.l/L.61/Add.l and 2).

27. Mrs. THAKORE (Rapporteur) said that the draftreport represented the successful culmination of the Com-mittee's collective endeavours on a subject of great legaland political complexity—a success due in no small measureto the prevailing spirit of co-operation and compromise. Itcovered the Committee's consideration of item 11 of theConference agenda (A/CONF.80/7) during the resumedsession of the Conference, and was a continuation of theCommittee's report on the work of the 1977 session(A/CONF.80/16).

28. The report consisted of an introductory chapter andthree other chapters, in addition to an annex. Chapter IIdescribed the proceedings of the Committee, article byarticle, giving first the text of the International LawCommission's draft or the text of the proposed new articleas the case might be, then the text of the amendments ifany, with a brief indication of the manner in which theywere disposed of. The proceedings of the Committee werethen described, making a distinction when necessarybetween the proceedings at the 1977 session and those ofthe resumed session. That was followed by consideration of

For the adoption by the Conference of the division of theConvention into parts and sections and titles thereof, see14th plenary meeting.

the corresponding report of the Drafting Committee, andfinally the Drafting Committee's text of the article asapproved by the Committee of the Whole and rec-ommended for adoption by the Conference.

29. Chapter II also described the different procedurefollowed in the case of article 39 bis and articles 6, 7 and12 as well as the draft resolution concerning article 30which, following initial consideration by the Committee ofthe Whole, had been referred respectively to the Ad HocGroup on the Peaceful Settlement of Disputes, establishedat the resumed session, and the Informal ConsultationsGroup, established at the 1977 session. In all those cases,the Committee of the Whole had taken its decision on thebasis of a report submitted by the Group concerned beforereferring the articles to the Drafting Committee.

30. Chapter III of the report contained the text of theproposals for the preamble and final clauses referred to theDrafting Committee on which, in accordance with adecision taken by the Committee of the Whole at its 21stmeeting,11 the Drafting Committee had submitted itsreport direct to the Plenary. Since those proposals had notbeen discussed in the Committee of the Whole, the reportsof the Drafting Committee thereon did not form part of theformer's draft report.

31. Chapter IV dealt with the parts and sections intowhich the draft articles were divided: at its 53rd meeting,the Committee of the Whole had decided to request theDrafting Committee to examine and report on the questionof that division and on the titles for the parts and sections.

32. The annex contained a check list of documentssubmitted to the Committee of the Whole during theresumed session.

33. 'The report was to be read in conjunction with thecorresponding summary records of the Committee of theWhole. Some blanks would be filled in by the subsequentissue of addenda and the final version of the report wouldbe prepared in New York in consultation with theRapporteur.

34. The CHAIRMAN said that, if there were no objec-tion, he would take it that the Committee of the Wholeagreed to adopt the draft report on its work as contained indocuments A/CONF.80/C.l/L.61/Add.l and 2.

It was so agreed.12

Conclusion of the work of the Committee of the Whole

35. The CHAIRMAN said he congratulated members ofthe Committee on the production of a historic documentand thanked all delegations for their contribution to thesuccess of the Conference. He wished to pay a special

1 ' Official Records of the United Nations Conference onSuccession of States in Respect of Treaties, vol. I, Summary recordsof the plenary meetings and of the meetings of the Committee ofthe Whole (United Nations publication, Sales No. E.78.V.8), p- 151.21st meeting, paras. 94-95.

1 2 Foi the adoption by the Conference of the report of theCommittee of the Whole, see 14th plenary meeting.


tribute to the Austrian delegation as the representatives of a 36. Mr. HERNDL (Austria) thanked the Chairman for hishost country which, through previous law conferences held untiring efforts and expressed his delegation's gratificationin Vienna, had already contributed much to the solution of at his complimentary remarks about Austria and Vienna,many thorny problems. He also wished to commend theefforts of the Chairman and members of the Drafting Q- ^ PUATDUWT J i A *\, * +i, n •** e±u

ti. IT- rrt. • i_ i_ j j. j /-.L. • 37. The CHAIRMAN declared that the Committee of theCommittee, the Vice-Chairman who had acted as Chairman 117ti , , , , , A .. .

r ^ • ? i i+ +• *i. -n c Whole had concluded its work,of the informal consultations group, the Executive Sec-retary, the Expert Consultant and the Secretariat who hadstaffed the Committee. The meeting rose at 10.55.

- /

J.L5 ^ l L

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