1 J . Brierly, The Law of Nations 136 (4th ed., 1949); A. Keith, The Theory of State Succession with Special Reference to English and Colonial Law 19-20 (1907); D. P. O'Connell, The Law of State Succession 32, 33 (1956); Hershey, “The Succession of States,” 5 A.J.I.L. 285, 291-292 (1911); Lester “State Succession to Treaties in the Commonwealth,” 12 Int. and Comp. Law Q. 475, 477 (1963). Cf.O'Connell, “Independence and Succession to Treaties,” 38 Brit. Yr. Bk. Int. Law 84, 85 (1963). The term “ ‘personal’ treaties” is used here to mean treaties other than those dealing with real or territorial rights. Treaties dealing with territorial rights, such as boundary treaties and treaties imposing servitudes on territory, are often called “dispositive” or “localized” treaties. These writers recognized that an exception to the clean-slate doctrine for so-called dispositive or localized treaties existed. See, e.g.,Brierly, cited above, at 137. On the other hand, Lord McNair has written that dispositive treaties “create, or transfer, or recognize the existence of, certain permanent rights, which thereupon acquire or retain an existence and validity independent of the treaties which created or transferred them.… “ McNair, The Law of Treaties 256 (1961) (emphasis McNair's). Because of the problems created by executory rights and duties often embodied in boundary treaties, it would appear to be better to divorce the question of succession to territory from the problems of succession to treaties. Cf.Lester, cited above, at 503.

2 1 D.P. O'Connell, International Law 427 (1965); McNair, note 1 above, at 601; Lester, note 1 above, at 476, 479-480.

3 O ‘Connell, ‘ ‘ Independence and Succession to Treaties,'’ note 1 above, at 85; O'Higgins, “Irish Extradition Law and Practice,” 34 Brit. Tr. Bk. Int. Law 274, 299 (1958). Cf.R. deMuralt, The Problem of State Succession with Regard to Treaties 140-141 (1954).

4 2 D. P. O'Connell, State Succession in Municipal Law and International Law 114, 134 (1967). “Continuity” is used here to mean succession in the sense of continuing treaties which had been applied to the territory of the new state by the former governing Power without any interruption in their effect and, in theory, by the application of a rule of customary international law providing for their continued effect. It is assumed throughout this comment that succession, whether it be optional or otherwise, can take place only with respect to a treaty which had applied to the territory of a new state prior to its independence.

5 Ibid,at 116-117. Most noticeable among the states which adopted a selective policy were Tanzania (then Tanganyika) and Uganda. For texts of their respective statements concerning their policies with regard to treaties, see United Nations, Materials on Succession of States 177-180 (Doc. ST/LEG/SEB.B/14 (1967)). See also note 13 below.

6 See, e.g.,2 D. P. 0'Connell, State Succession, note 4 above, at 114; United Nations, note 5 above, at 216-217, 218, 224, 233. 0'Connell indicates that the United States generally does not consider an old treaty in force with a new state in the absence of a devolution agreement or some other notification by the new state that it desires to continue the treaty in force. O'Connell, “Independence and Succession to Treaties,” note 1 above, at 125. See also Bevans, “Ghana and United States-United Kingdom Agreements,” 59 A.J.I.L. 93, 96-97 (1965).

7 1nternational Law Association, Committee on the Succession of New States to the Treaties and Certain Other Obligations of Their Predecessors, “Interim Report of the Committee to the Buenos Aires Conference” (1968) (Mimeographed). The rule of succession to treaties for newly independent states is contained in draft resolution 1 and reads as follows: “

• 1 . Unless the treaty otherwise provides, a State on attaining independence may invoke and may have invoked against it a treaty which was internationally in force with respect to the entity or territory corresponding with it prior to independence if:

• a. The newly independent State has been notified or otherwise knows that the treaty has been internationally in force with respect to the entity or territory corresponding with it prior to independence, and

• b. (i) The newly independent State and the other party or parties have expressly agreed to be bound by the terms of the treaty; or

• (ii) the newly independent State and the other party or parties have applied the terms of the treaty inter Be;or

• (iii) in the case of a bilateral treaty, neither the newly independent State nor the other party has declared, within a reasonable time after the attaining of independence, that the treaty is regarded as no longer in force between them, or

• (iv) in the case of a multilateral treaty, the newly independent State has not declared, within a reasonable time after the attaining of independence, that the treaty is not in force with respect to it .”

The text of this resolution was adopted by the International Law Association at its Fifty-Third Conference in Buenos Aires in September, 1968. See U.N. International Law Commission, Second Report on Succession in Respect of Treaties 8 (Sir Humphrey “Waldock, Special Bapporteur), U.N. Doc. A/CN.4/214 (1969). At the same time the International Law Association adopted all but one of the Committee's other draft resolutions on state succession. Ibid.The texts of the resolutions adopted are set forth in the Second Report on Succession in Respect of Treaties. Hid.at 8-10.

8 Parliamentary Debates: Dail Eireann, Off. Rep. Vol. 48, cols. 2058-2059 (1933), quoted by O'Higgins, note 3 above, at 297. The statement also mentioned that the Irish practice had been to continue commercial and administrative treaties of the United Kingdom in force until new agreements could be concluded. McNair also quotes the statement and says “This statement of opinion is believed to be substantially correct.” McNair, note 1 above, at 641. This is not the only indication of the existence of a rule of optional succession. For example, Indonesia is reported to have told the United Kingdom in 1961 that the only old U.K.-Netherlands treaties which were still in force were those that either the Indonesian or United Kingdom Government had expressly desired to keep in force with the agreement of the other. United Nations, note 5 above, at 186.

9 O'Higgins, note 3 above, at 299, 306-311. Three states had no opinion on the matter, five states seemed to believe that the treaties were not applicable to the Irish Republic, three states thought that the treaties remained in force vis-à-visthe Irish Republic, one state had denounced the treaty with regard to Ireland, and two states, Switzerland and The Netherlands, felt that the continued application of the treaties was dependent on a declaration by Ireland. Ibid,at 299.

10 Statement from appropriate Swiss authorities contained in letter from Swiss Vice Consul, Dublin, June 27, 1957 (translation), quoted by O'Higgins, note 3 above, at 311.

11 Reply of the appropriate Dutch authorities in letter from the Netherlands Minister, Dublin, July 16, 1958, quoted by O'Higgins, note 3 above, at 310.

12 International Law Association, note 7 above, at draft resolution 1.

13 See declarations of Tanzania and Uganda in United Nations, note 5 above, at 177-180. Both declarations provide that the terms of applicable bilateral treaties would be applied on the basis of reciprocity for a stated interim period. Both countries expressed the hope that during that period agreement could be reached with the states concerned on the continuance or modification of such treaties. As to the status of the treaties after the interim period, the language of the declarations differed somewhat. Tanzania's declaration provided that the Government, at the end of the interim period, would “regard such of these treaties which could not by the application of the rules of customary international law be regarded as otherwise surviving, as having terminated.” Uganda's declaration provided that at the end of the interim period the Government would “regard such treaties, unless they must by the application of the rules of customary international law be regarded as otherwise surviving, as having terminated.” While the phrasing differs, the practical effect of each declaration would seem to be the same, namely, that treaties to which the country succeeds under international law would continue to apply. Tanzania has interpreted the provision in its declaration to mean that all personal treaties lapsed after the interim period, while boundary and communications treaties (regarded as real treaties) have continued by virtue of succession. 2 D. P. O'Connell, State Succession, note 4 above, at 116. A more significant difference between the two declarations arises in connection with multilateral treaties. Uganda's declaration purports to apply equally to multilateral treaties, while Tanzania's declaration specifically excludes multilateral treaties from the provisions applicable to bilateral treaties. Both declarations do say that the terms of multilateral treaties would be applied on the basis of reciprocity during the interim period and, also, that during that period the governments would seek to notify the depositary of the steps they wished to take with regard to each multilateral treaty. The steps mentioned are “confirmation of termination, confirmation of succession or accession.'’ Thus, during the interim period, there seems to be little practical difference between the declarations. In the case of Tanzania's declaration, however, it appears that multilateral treaties are excluded from the effect of the statement that treaties will be regarded as having terminated if they “could not by the application of the rules of customary international law be regarded as otherwise surviving… . “ After the interim period, therefore, any implication that treaties surviving under customary international law would not be regarded by Tanzania as having terminated, does not appear to apply to multilateral treaties. Another difference is in the length of the interim period. Tanzania's declaration provided for an interim period of two years, while in Uganda's ease the period was only a little over a year (Oct. 9, 1962, to Dec. 31, 1963). Uganda's declaration did make reference, however, to “any subsequent extension of the period which may be notified in like manner.” In fact Uganda did extend the period for another year, but not until after the original period had expired. See ibid.at 120. For a discussion of some of the practice under these declarations, see ibid,at 116-119. For an interesting discussion of some of the treaties involved in the case of Tanzania and some of the attitudes of a new state towards succession, see Verbit, “State Succesion in the New Nations,” 1966 Proceedings, American Society of International Law 119.

14 The I.L.A. Committee's draft resolution 1 provides that, although a new state may opt out of a treaty, it is prevented from doing so if it has already applied the treaty. See note 7 above. The language of the draft at par. 1(b) (ii) is in terms of application by “the newly independent State and the other party or parties … inter se … .”Thus, insofar as the old state might have an option, it too would be precluded from exercising it after applying the terms of a treaty. In the case of multilateral treaties, the draft, at par. 1(b) (iv), provides for an option only on the part of the newly independent state.

15 See declarations of Tanzania and Uganda, United Nations, note 5 above, at 177- 180.

16 The I.L.A. Committee's draft, note 7 above, at par. 1(b) (iv), gives only the newly independent state the option not to be bound by multilateral treaties. This seems unfair. Although it may seem awkward to have some parties to a multilateral treaty not bound at all by the treaty to certain other parties, such a solution seems better than forcing parties into a treaty relationship with a state in respect of which they did not freely undertake to be bound. Of course, where the multilateral treaty permits accession by the newly independent state whose succession was objected to by one of the parties, it should be possible for the confirmation of succession to be treated as an accession with respect to the objecting state. Admittedly the mechanics of this solution may present a problem, somewhat similar to the problem with reservations, that will have to be worked out. But it seems better to have this problem, than to force an objecting state into a treaty relationship that it has not undertaken and wishes to avoid.

17 Cf.Verbit, note 13 above, at 121-122.