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More on the Depositary of International Treaties

  • Shabtai Rosenne

Extract

The purpose of this article is to bring up to date the present writer’s previous article on “The Depositary of International Treaties” published in this Journal, in the light of the deliberations of the United Nations Conference on the Law of Treaties in 1968 and 1969 and the changes there made in the texts. The relevant provisions now appear as Articles 76, 77 and 78 of the so-called Vienna Convention on the Law of Treaties, corresponding to Articles 71, 72 and 73 of the draft articles on the law of treaties of the International Law Commission.

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1 61 A.J.I.L. 923 (1967).

2 The Conference took place in two sessions, the first from March 26 to May 24, 1968, and the second from April 9 to May 23, 1969, the Final Act and the Vienna Convention of the Law of Treaties being signed on that later date. Official Records of the First Session, consisting of summary records of the five plenary meetings and of the 83 meetings of the Committee of the Whole, have been published and are hereafter cited as Official Records I. Official Records of the Second Session, consisting of summary records of meetings 84-105 of the Committee of the Whole, and meetings 6-36 of the Conference, are hereafter cited as Official Records II.

3 For the legislative history of these articles, and the text of the corresponding articles as adopted by the International Law Commission in 1966, see Rosenne, , The Law of Treaties: A Guide to the Legislative History of the Vienna Convention (Leiden: A. W. Sijthoff; Dobbs Ferry, N. Y.: Oceana Publications, 1970).

For pre-conference comments by governments, see Comments on the final draft articles on the law of treaties prepared by the I.L.C. at its 18th session: report of the Secretary General, U.N. General Assembly, 22nd Sess., Annexes, Agenda item 86, Docs. A/6827 & Corr. 1 and Add. 1 and 2 (1967); Comments and amendments to the final draft articles on the law of treaties submitted in 1968 in advance of the Conference in accordance with General Assembly Res. 2287 (XXII) (1968), Doc. A/CONF. 39/6 and Add. 1 and 2. This, and the other conference documents cited herein, will be published later in Official Records III.

For bibliography additional to that appearing in 61 AJ.I.L. 926 (1967), note 6, see Bot, , Nonrecognition and Treaty Relations at 176 (1968); Frowein, , “Some Considerations regarding the Function of Depositary,” 27 Zeitschrift fur ausl. öff. Recht u. Völkerrecht 533 (1967); Holloway, , Modem Trends in Treaty Law (1967), passim; Mosconi, La Formazione dei Trattati (1968), passim. See also A Selected Bibliography on the Law of Treaties submitted by the Secretariat to the U.N. Conference on the Law of Treaties, Doc. A/CONF.39/4, pp. 116 ff. For the latest restatement of the Soviet view, see 4 Kurs mezhdunarodnovo prava at 160 (1968).

To be noted also is the new annual publication of the Secretariat (Doc. ST/LEG/ SER.D/1 and following) entitled: Multilateral Treaties in respect of which the Secretary- General performs Depositary Functions, List of Signatures, Ratifications, Accessions etc., as of Dec. 31 of each calendar year. The final clauses of these treaties are published separately in an Annex to that publication.

For a United States appreciation of the Conference in general, see Richard, D. Kearney and Robert, E. Dalton, “The Treaty on Treaties,” This Journal (July, 1970), p. 495 ; and on the matters discussed in this article, see p. 558.

4 Doc. A/CONF.39/C.1/L.328, par. 3. Rejected at the 78th meeting, par. 63, by 35 votes to 8, with 27 abstentions. Official Records I, p. 468.

5 Docs. A/CONF.39/C.l/L.290/Rev.l (Art. 71) and A/CONF.39/C.1/L.291 (Art. 72). These amendments were withdrawn, 78th meeting, par. 61, ibid.

6 Doc. A/CONF.39/C.1/L.351. Rejected at the 78th meeting, par. 64, by 25 votes to 23, with 28 abstentions. Ibid.

7 Doc. A/CONF.39/C.1/L.364. Adopted at the 78th meeting, par. 67, by 35 votes to 16, with 33 abstentions. Ibid.

8 Doc. A/CONF.39/C.1/L.368. Adopted at the 78th meeting, par. 68, by 29 votes to 28, with 29 abstentions. Ibid.

9 82nd meeting, par. 33. Ibid., p. 485. For further interpretation of the word “party,” see statement of the Chairman of the Drafting Committee at the 24th Plenary Meeting, par. 18, Official Records II, p. 129.

10 78th meeting, par. 55. Official Records I, p. 467.

11 Amendments by Bulgaria, Romania, Sweden, Doc. A/CONF.39/C.1/L.236 and Add. 1, and Finland, Doc. A/CONF.39/C.1/L.248. Adopted at the 78th meeting, par. 63, by 77 votes to none, with 5 abstentions. Official Records I, p. 468.

12 Doc. A/CONF.39/C.1/L.328, pars. 1 and 2. Rejected at the 78th meeting, par. 63, by 39 votes to 9, with 19 abstentions. Official Records I, p. 468. And see Sir Humphrey Waldock, 78th meeting, par. 52, ibid., p. 467.

13 See documents mentioned in note 11 above.

14 480 U.N. Treaty Series 13. Unlike previous practice, the 1963 Moscow Treaty did not use the word “depositary” but employed the novel formula that the three governments “are hereby designated the Depositary Governments.” Identical duties as between themselves and as between each one of them and other states concerned in the treaty were imposed upon each of the Depositary Governments. The depositary clause itself, Art. V, stipulates that “This Treaty shall be deposited in the archives of the Depositary Governments.” Thus not only the depositary functions are distributed between three governments but also the three original texts of a multilateral treaty—a reversion to the system which prevailed before the invention of the institution of depositary. Apparently the classic alternat was employed to designate the original parties in the treaty which was deposited in the three archives. For an official United States view, see “Contemporary Practice of the United States” in 58 A.J.I.L. 165 at 175 (1964). For a Soviet account, see Uliganova, “Depozitarii mnogostoronnevo dogorova,” in 1966 Soviet Yearbook of International Law 335.

In the informal discussions which took place between the two sessions of the Vienna Conference the possibility of employing this form of depositary for the Convention on the Law of Treaties was bruited but it never crystallized in a formal text submitted to the Conference. The proposal of Ghana and India, note 59 below, was based on a different concept.

15 U.N. General Assembly, 22nd Sess., Annexes, Agenda item 86, Report of the Sixth Committee (Doc. A/6913) (1967), par. 71.

16 Doc. A/CONF.39/6, note 3 above. The I.A.E.A. had also drawn attention to the desirability of taking account of the novel practice of providing for several depositaries instead of the traditional one depositary. Doc./6827/Add.1, note 3 above.

17 77th meeting, par. 2. Official Records I, p. 457.

18 77th meeting, par. 9. Ibid., p. 458. At no stage of the preparatory work had the permissibility of this practice been questioned.

19 77th meeting, par. 13. Ibid.

20 77th meeting, par. 25. Ibid., p. 460.

21 77th meeting, par. 29. Ibid.

22 77th meeting, par. 53. Ibid., p. 462.

23 77th meeting, par. 39. Ibid., p. 461.

24 77th meeting, par. 41. Ibid.

25 77th meeting, par. 51. Ibid., p. 462.

26 78th meeting, par. 44. Ibid., p. 466.

27 78th meeting, par. 49. Ibid., p. 467.

28 78th meeting, par. 53. Ibid.

29 82nd meeting, par. 32. Ibid., p. 485. And note the statement of the Delegation of Poland at the 24th Plenary Meeting referring to “the modern practice of designating more than one State as depositary.” Official Records II, p. 131.

30 Doc. A/CONF.39/C.1/L.372. Adopted by 40 votes to 10, with 32 abstentions. 78th meeting, par. 63. Official Records I, p. 468.

31 Doc. A/6827/Add.1, note 3 above. For the earlier decision of the I.L.C. on this point, see 61 A.J.I.L. 927 (1967).

32 Doc. A/CONF.39/C.1/L.369.

33 77th meeting, par. 16. Official Records I, p. 459. The amendment was adopted by 46 votes to 12, with 28 abstentions. 78th meeting, par. 66. Ibid., p. 468.

34 77th meeting, par. 19. Ibid., p. 459. The amendment was adopted by 71 votes to none, with 13 abstentions, at the 78th meeting, cited in previous note.

35 Doc. A/CONF.39/C.1/L.249. Adopted by 64 votes to two, with 18 abstentions. 78th meeting, par. 68. Ibid., p. 468.

36 Doc. A/CONF.39/C.1/L.249. Adopted without opposition after the vote mentioned in the previous footnote. Ibid.

37 82nd meeting, pars. 49, 54. Ibid., pp. 486, 487.

38 77th meeting, par. 17. Ibid., p. 456. Adopted by 45 votes to 4, with 32 abstentions. 78th meeting, par. 66. Ibid., p. 468.

39 82nd meeting, par. 47. Ibid., p. 486.

40 82nd meeting, par. 51. Ibid.

41 82nd meeting, par. 52. Ibid.

42 Summarized, with appropriate references, in Resolutions of the General Assembly concerning the Law of Treaties: Memorandum prepared by the Secretariat, pars. 125-143. 2 I.L.C. Yearbook 1 at 28 (1963). For the full text of the Regulations regarding the registration of treaties, see 2 ibid. 194 (1962).

43 Observations on Art. 29 as adopted in 1962, contained in a note verbale of April 26, 1963, originally circulated in Doc. A/CN.4/175 (mimeographed only). See 2 I.L.C. Yearbook 295 (1966). For the view of the Special Rapporteur, see Fourth Report on the Law of Treaties, Art. 29, par. 8, 2 I.L.C. Yearbook 3 at 64 (1965), Doc. A/CN.4/177/Add.1. For an earlier suggestion by Czechoslovakia to this effect (apparently overlooked by the Special Rapporteur and in the Secretariat compilations), see statement of Mr. Pĕchota at the 739th meeting of the Sixth Committee, U.N. General Assembly, 17th Sess., Sixth Committee 24 (1962).

44 815th meeting, pars. 38-60. 1 I.L.C. Yearbook 278-280 (1965). Sir Humphrey had never been enthusiastic over this suggestion, and he advised the Conference, as he had earlier advised the Commission, that the function of registration might cause difficulties in view of the strict rules on the subject where the depositary was an international organization. 78th meeting, par. 59, Official Records I, p. 467. On the other hand, Mr. Bevans stated that the U.N. Secretariat had informally indicated its preference that the registration of a treaty be effected by the depositary. 77th meeting, par. 20, ibid., p. 459. Possibly the regulations on the matter by the General Assembly (note 42 above) will require re-examination, on this and on other points, in the light of the Vienna Conference. If that is so, the Secretary General will undoubtedly in due course bring the matter before the General Assembly. See, further on this, the Report of the Sixth Committee (Doc. A7746) in U.N. General Assembly, 24th Sess., Official Records, Annexes, Agenda items 86 and 94 (b) (1969), par. 13.

45 Doc. A/CONF.39/7. Before the Second Session of the Conference, this also attracted the approval of the International Bank for Reconstruction and Development, Doc. A/CONF.39/7/Add.2.

46 The amendment to Art. 72 was adopted by 59 votes to none, with 22 abstentions. 78th meeting, par. 66, Official Records I, p. 468. For the parallel amendment to Art. 75 by the United States and Uruguay, see Doc. A/CONF.39/C.1/L.376. It was adopted by 61 votes to none, with 25 abstentions. 79th meeting, pars. 4-20, Official Records I, pp. 470-471. Art. 80 in its final form is couched in absolute terms and does not purport to be a stipulation binding only the parties to the present convention. In this respect it differs from the International Law Commission’s text.

47 Doc. ST/LEG/7. At the 939th meeting of the I.L.C. the Secretary had announced that a revised edition of this publication would be issued in time for the Conference, 1 I.L.C. Yearbook 252 (1967). Similarly, at the 982nd meeting of the Sixth Committee on Oct. 26, 1967, the same was stated by the Chairman on behalf of the Secretariat, U.N. General Assembly, 22nd Sess., Official Records, Sixth Committee 137 (1967). Regrettably the Secretariat was unable to execute that program. In 1970 the I.L.C. formally asked the Secretary General to prepare a new edition of this document. Report of the I.L.C. on the Work of Its 22nd Session, Ch. V, par. 9, U.N. General Assembly, 25th Sess., Supp. 10 (Doc. A/8010) (1970).

48 877th meeting, par. 22, Official Records I, p. 459. This amendment was adopted by 55 votes to 1, with 29 abstentions, 78th meeting, par. 66, ibid., p. 468.

49 77th meeting, par. 34. Ibid., p. 461.

50 78th meeting, par. 46. Ibid., p. 466.

51 78th meeting, par. 58. Ibid., p. 467.

52 Doc. A/CONF.39/C.1/L.186, adopted without objection at the 26th meeting, and further revised at the 72nd meeting. This was based on an earlier proposal by a former Special Rapporteur, Sir Gerald Fitzmaurice, in his first report, 2 I.L.C. Yearbook 113 (1956), Art. 30 (Doc. A/CN.3/101). The I.L.C. itself had been somewhat reluctant to deal with this aspect of the law, despite the urgings of Sir Humphrey Waldock, for instance at the 654th meeting, 2 I.L.C. Yearbook 97 (1962). He was wont to refer to the final clauses as “some kind of esoteric mystery.” 850th meeting, par. 81, 2 I.L.C. Yearbook (Part II) 46 (1966).

53 Doc. A/CONF.39/C.1/L.265. Discussed at the 44th meeting of the Committee of the Whole, Official Records I, p. 246. Adopted by 53 votes to three, with 35 abstentions.

54 Doc. A/6827/Add.1. Note 3 above. A similar suggestion was made by the Council of Europe, Doc. A/CONF.39/7, note 3 above.

55 Amendments by Japan, Doc. A/CONF.39/C.1/L.269, and by Spain, Doc. A/CONF. 39/C.1/L.288, adopted by 30 votes to 23, with 35 abstentions.

56 78th meeting, par. 15, Official Records I, p. 464.

57 88th meeting, par. 43, 1 I.L.C. Yearbook 48 (1951).

58 Art. 32, par. 2, as adopted by the Commission in 1963 and as revised in January, 1966. The proposal to substitute “knowledge” for “notice” was made by the Drafting Committee in its Revised Draft Articles, Doc. A/CN.4/L.117, 2 I.L.C. Yearbook 112 (1966). No explanation appears on the record, but it is believed that the object was to align the English text with the French and Spanish texts, which used the words “connaissance” and “conocimiento” respectively, and to avoid the technical implications which, as the work progressed, became attached to the word “notice.” Having regard to this history, it is believed that the change made at the Vienna Conference may be more than a “minor clarifying change,” as is suggested by the authors of the article cited in note 3 above, Kearney and Dalton, at 532.

59 In the course of the discussion of the final clauses a proposal was advanced by Ghana and India for a depositary clause based upon a distinction between an initial depositary and a final depositary, as part of a plan to overcome the political problem which the Conference faced arising out of the so-called principle of universality governing participation in general multilateral treaties, both as a matter for one of the substantive clauses and as one for an appropriate final clause in this convention itself, Doc. A/CONF.39/C.1/L.394. This was rejected at the 104th meeting of the Committee of the Whole on a roll-call by 48 votes to 32, with 25 abstentions; and although proposals relating to the principle of universality were reintroduced in the plenary stage, both as a matter of substance and as regards the final clauses, no further attempt was made to institute a multipartite depositary for this convention.

60 In a paper entitled “Standard Final Clauses” (Doc. A/CONF.39/L.1) submitted to the Conference by the Secretary General, pursuant to a resolution adopted by the Conference on May 24, 1968, it was stated that, since the matter of notifications and other depositary functions were fully dealt with in Arts. 71 and 72 of the draft articles, it did not seem necessary to cover them also in the final clauses, but perhaps a simple provision could be included to the effect that the depositary should perform the functions laid down in the convention, in particular in Arts. 71 and 72. In the original text of a proposal for the final clauses by Brazil (Doc. A/CONF.39/C.1/386) it was suggested to include an article to the effect that the “Secretary-General of the United Nations shall perform the functions laid down in the Convention, in particular in articles 71 and 72,” but in a subsequent revision (Doc. A/CONF.39/C.1/L.386/ Rev.1), in which the United Kingdom joined as a co-sponsor, this was dropped. Introducing the revised text at the 100th meeting of the Committee of the Whole, the representative of Brazil confirmed that these aspects were governed by the relevant articles of the convention. Later in the same meeting, the representative of the United Kingdom explained that the co-sponsors had decided against including a provision along the lines tentatively suggested by the Secretariat in order to preclude the possible argument that, because Arts. 71 and 72 were expressly mentioned in the depositary clause, some other provisions of the convention were not applicable to the convention itself. He also recalled that Art. 74 (now Art. 79) imposed tasks on the depositary, Official Records II, pp. 311, 314. No opposition to this view was expressed.

61 77th meeting, par. 26, Official Records I, p. 460.

62 78th meeting, par. 56, ibid., p. 467.

63 82nd meeting, par. 53, ibid., p. 486.

64 83rd meeting, par. 55, ibid., p. 492. Statement by Mr. Stavropoulos. See also the statement by the Canadian representative at the 24th Plenary Meeting, par. 23, Official Records II, p. 131.

* The views expressed herein are personal to the writer.

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