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ASEAN and Its Problematic Treaty-Making Practice: Can International Organizations Conclude Treaties “on Behalf of” Their Member States?

Published online by Cambridge University Press:  18 March 2014

CHEN Zhida
CHEN Zhida*
Affiliation:
Supreme Court of Singapore, Singaporeczhida@gmail.com
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Abstract

The Association of Southeast Asian Nations (ASEAN) has, on various occasions, concluded treaties on behalf of its Member States. This raises some interesting questions: is ASEAN entitled to enter into treaties on behalf of its Member States; and if so, what should be the status of ASEAN and its Member States vis-à-vis the other party to the treaty? The issue is not one of whether the ASEAN Member States have consented to such a practice—it must be assumed that they have. Instead, the real issue is whether such treaty-making practice can and should be valid under international law, even if the Member States have consented for ASEAN to conclude these treaties on their behalf. This paper will argue that, under international law, ASEAN is entitled to conclude treaties on behalf of its Member States.

Type
Articles
Information
Asian Journal of International Law , Volume 4 , Issue 2 , July 2014 , pp. 391 - 419
Copyright
Copyright © Asian Journal of International Law 2014 

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Footnotes

*

Justices’ Law Clerk, Supreme Court of Singapore. I am grateful to Dr Santiago Villalpando for his invaluable comments on an earlier draft of this paper. All errors, however, remain mine. The views expressed in this paper are entirely the author's own and do not reflect those of the Supreme Court of Singapore.

References

1. ASEAN Declaration (Bangkok Declaration), 8 August 1967, online: ASEAN 〈http://www.asean.org/news/item/the-asean-declaration-bangkok-declaration〉.

2. SEVERINO, Rodolfo, “Asia Policy Lecture: What ASEAN is and What it Stands for”, The Research Institute for Asia and the Pacific, University of Sydney, Australia (22 October 1998)Google Scholar, online: ASEAN 〈http://www.asean.org/resources/2012-02-10-08-47-56/speeches-statements-of-the-former-secretaries-general-of-asean/item/asia-policy-lecture-what-asean-is-and-what-it-stands-for-by-rodolfo-c-severino-secretary-general-of-asean-at-the-research-institute-for-asia-and-the-pacific-university-of-sydney-australia-22-october-1998〉.

3. Singapore Parliamentary Debates, vol. 84 at col. 1181 (28 February 2008).

4. See, for example, BURTON, John, “Spotlight: ASEAN—SE Asia's ‘Talking Shop’ Turns 40” Financial Times (3 August 2007)Google Scholar, online: Financial Times 〈http://www.ft.com/cms/s/0/2f87b7c8-41d1-11dc-8328-0000779fd2ac.html#axzz2QNGg6oGT〉.

5. Art. 3 of the Charter of the Association of Southeast Asian Nations, 20 November 2007, online: ASEAN 〈http://www.asean.org/archive/publications/ASEAN-Charter.pdf〉 [ASEAN Charter].

6. Ibid., art. 41(7).

7. Ibid., art. 5(2).

8. See notes 83−91 and accompanying text.

9. See notes 32−44 and accompanying text.

10. See notes 36 and 43 and accompanying text.

11. Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, 21 March 1986, UN Doc. A/CONF.129/15 (not yet in force) [VCLTIO].

12. Ibid., art.2 (1)(j).

13. Hung, LIN Chun, “ASEAN Charter: Deeper Regional Integration under International Law” (2010) 9 Chinese Journal of International Law 821 at 826 Google Scholar: “Such a legal status will enable ASEAN to enter treaties with non-ASEAN countries as an entity after signing the ASEAN Charter. If so, it is worth reviewing whether ASEAN itself acts as a treaty party or whether the ten separate members act as separate treaty parties vis-à-vis non-ASEAN members.”

14. ASEAN Charter, supra note 5, art. 41(7).

15. Rules of Procedure for Conclusion of International Agreements by ASEAN, 16 November 2011, online: National University of Singapore, Centre for International Law 〈http://cil.nus.edu.sg/wp/wp-content/uploads/2012/12/Compilation-OI-ASEAN.pdf〉 [Rules of Procedure for Conclusion of International Agreements by ASEAN].

16. Ibid., rule 2. See also ibid., rule 8(5). It is noteworthy that there is no delegation of treaty-making power to the Secretary-General even in cases of treaties concluded on behalf of ASEAN (as an international organization). Rather, ad hoc authorization by the ASEAN Foreign Ministers Meeting or the Committee of Permanent Representatives to ASEAN is required. This suggests that it is unlikely that ASEAN, through the Secretary-General, would have the general power to conclude treaties on behalf of its Member States.

17. Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, 12 December 2005, online: ASEAN 〈http://www.asean.org/news/item/kuala-lumpur-declaration-on-the-establishment-of-the-asean-charter-kuala-lumpur-12-december-2005〉.

18. Para. 3 of the Terms of Reference of the Eminent Persons Group (EPG) on the ASEAN Charter, online: ASEAN 〈http://www.asean.org/archive/ACP-TOR.pdf〉.

19. Ibid., at para. 4.

20. The Eminent Persons Group on the ASEAN Charter, “Report of the Eminent Persons Group on the ASEAN Charter” (December 2006), online: ASEAN 〈http://www.asean.org/archive/19247.pdf〉 at para. 37 [Report of the Eminent Persons Group on the ASEAN Charter].

21. GONZALEZ-MANALO, Rosario, “Drafting ASEAN's Tomorrow: The Eminent Persons Group and the ASEAN Charter” in Tommy KOH et al., eds., Making of the ASEAN Charter (Singapore: World Scientific Publishing Co., 2009), 37 at 44Google Scholar: “A second and more important example has been the watering down of the vision for the Secretary-General and Secretariat. The EPG viewed this office as having wide decision-making and representative powers, which included encoding the competence to … conduct discussions and negotiations on behalf of the ASEAN and other states and international organizations. Such competences were not encoded in the final Charter.”

22. See notes 32−44 and accompanying text.

23. ASEAN Charter, supra note 5, art. 11(2). Art. 3 of the Agreement on the Establishment of the ASEAN Secretariat, 24 February 1976, online: ASEAN 〈http://www.asean.org/news/item/asean-secretariat-basic-documents-agreement-on-the-establishment-of-the-asean-secretariat-bali-24-february-1976-2〉; Art. 2 of the Protocol Amending the Agreement on the Establishment of the ASEAN Secretariat, 22 July 1992, online: ASEAN 〈http://www.asean.org/news/item/asean-secretariat-basic-documents-protocol-amending-the-agreement-on-the-establishment-of-the-asean-secretariat-manila-philippines-22-july-1992-2〉 [Protocol Amending the Agreement on the Establishment of the ASEAN Secretariat].

24. Protocol Amending the Agreement on The Establishment of the ASEAN Secretariat, ibid., art. 2.

25. Report of the Eminent Persons Group on the ASEAN Charter, supra note 20 at para. 37.

26. VCLTIO, supra note 11, art. 2(1)(j).

27. Draft Articles on the Law of Treaties Between States and International Organizations or Between International Organizations with Commentaries, Yearbook of the International Law Commission, 1982, vol. II (Part Two) at 21.

28. CHESTERMAN, Simon, “Does ASEAN Exist? The Association of Southeast Asian Nations as an International Legal Person” (2008) 12 Singapore Year Book of International Law 199−211 Google Scholar.

29. VCLTIO, supra note 11, art. 1.

30. See, for example, Framework Agreement on Comprehensive Economic Co-Operation Between ASEAN and the People's Republic of China, 4 November 2002 (ASEAN as referring to the Member Sstates); Memorandum of Understanding Between ASEAN and the Government of the People's Republic of China on Cooperation in the Field of Non-Traditional Security Issues, 18 November 2009 (ASEAN as referring to the international organization); Agreement of Co-operation Between ASEAN and the United Nations Educational, Scientific and Cultural Organisation, 12 September 1998 (ASEAN as referring to the ASEAN Secretariat).

31. For the use of ASEAN to refer to Member States prior to the ASEAN Charter, see, for example, Framework Agreement on Comprehensive Economic Co-operation Between ASEAN and the People's Republic of China, 4 November 2002; Framework Agreement on Comprehensive Economic Cooperation Between the Republic of India and the Association of Southeast Asian Nations, 8 October 2003. For use of ASEAN to refer to Member States after the ASEAN Charter, see, for example, Agreement on Dispute Settlement Mechanism under the Framework Agreement on Comprehensive Economic Cooperation Between the ASEAN and the Republic of India, 13 August 2009.

32. See, for example, Memorandum of Understanding Between the ASEAN Secretariat and the Secretariat of the United Nations Economic and Social Commission for Asia and the Pacific, 2 January 2002; Cooperation Agreement Between the ASEAN Secretariat and the International Labour Office, 20 March 2007; Memorandum of Understanding Between the ASEAN Secretariat and the Secretariat of the Shanghai Cooperation Organisation, 21 April 2005; Memorandum of Understanding Between the ASEAN Secretariat and the Secretariat General of the Cooperation Council for the Arab States of the Gulf, 30 June 2009.

33. See, for example, Memorandum of Understanding Between the ASEAN Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 14 January 2007; Memorandum of Understanding Between the ASEAN Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 2 November 2002.

34. See, for example, Memorandum of Understanding Between the ASEAN Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 14 January 2007; Memorandum of Understanding Between the ASEAN Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 2 November 2002 (emphasis added).

35. See, for example, Memorandum of Understanding Between the ASEAN Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 14 January 2007; Memorandum of Understanding Between the ASEAN Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 2 November 2002 (emphasis added).

36. See, for example, Memorandum of Understanding Between the ASEAN Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 14 January 2007; Memorandum of Understanding Between the ASEAN Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 2 November 2002 (emphasis added).

37. See, for example, Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Transport Cooperation, 27 November 2004; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cultural Cooperation, 3 August 2005; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the World Organisation for Animal Health (OIE) on Technical Cooperation, 3 June 2008; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cooperation in the Field of Non-Traditional Security Issues, 10 January 2004; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cooperation in the Field of Non-Traditional Security Issues, 18 November 2009; Memorandum of Understanding Between the ASEAN and the Government of the People's Republic of China on Strengthening Sanitary and Phytosanitary Cooperation, 20 November 2007.

38. Nonetheless, there are some that would explicitly state that the Member States of ASEAN are “duly represented by its Secretary General of the ASEAN Secretariat”: see Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the World Organisation for Animal Health (OIE) on Technical Cooperation, 3 June 2008.

39. Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cooperation in the Field of Non-Traditional Security Issues, 18 November 2009, arts. 2(1)(a) and 2(2)(a) (emphasis added).

40. Ibid., art. 3(1)(a).

41. See, for example, Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cooperation in the Field of Non-Traditional Security Issues, 10 January 2004; Memorandum of Understanding Between the ASEAN and the Government of the People's Republic of China on Strengthening Sanitary and Phytosanitary Cooperation, 20 November 2007.

42. See, for example, Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the World Organisation for Animal Health (OIE) on Technical Cooperation, supra note 37, ss. 4 and 7.

43. See, for example, Memorandum of Understanding Between the ASEAN and the Government of the People's Republic of China on Strengthening Sanitary and Phytosanitary Cooperation, 20 November 2007; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Transport Cooperation, 27 November 2004.

44. See, for example, Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cultural Cooperation, 3 August 2005; Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Transport Cooperation, 27 November 2004.

45. See notes 36 and 43 and accompanying text.

46. See notes 106−9 and accompanying text.

47. See notes 106−9 and accompanying text.

48. See, for example, Free Trade Agreement Between the Caribbean Community (Caricom), Acting on Behalf of the Governments of Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St. Kitts and Nevis, Saint Lucia, St. Vincent and the Grenadines, Suriname and Trinidad and Tobago and the Government of the Republic of Costa Rica, March 2004, online: Caricom 〈http://www.caricom.org/jsp/secretariat/legal_instruments/agreement_caricom_costarica.pdf〉; Agreement Between the Belgo-Luxembourg Economic Union and the Government of the People's Republic of China Concerning the Reciprocal Promotion and the Protection of Investments, 4 June 1984, 1938 U.N.T.S. 305; Agreement Between the Belgo-Luxembourg Economic Union and the Government of the Hungarian People's Republic Concerning the Reciprocal Promotion and the Protection of Investments, 14 May 1986, 1938 U.N.T.S. 343; Agreement Between the Belgo-Luxembourg Economic Union and the Government of the Socialist Republic of Romania Concerning the Reciprocal Promotion, Protection and Guaranteeing of Investments, 8 May 1978, 1946 U.N.T.S. 203; Agreement Between the Belgo-Luxembourg Economic Union and the People's Republic of Bulgaria Concerning the Reciprocal Promotion and the Protection of Investments, 25 October 1988, 1946 U.N.T.S. 253; Agreement Between the Belgo-Luxembourg Economic Union and the Democratic Socialist Republic of Sri Lanka for the Promotion and Protection of Investment, 5 April 1982, 1946 U.N.T.S. 222; Agreement Between the Belgo-Luxemburg Economic Union and the Great Socialist People's Libyan Arab Jamahiriya on the Reciprocal Promotion and Protection of Investment, 15 February 2004, 2008 U.N.T.S. 14; Agreement Between the Belgo-Luxemburg Economic Union and the Republic of Malta Concerning the Reciprocal Encouragement and Protection of Investment, 5 March 1987, 1979 U.N.T.S. 315. See also WESSEL, Ramses A., “The EU as a Party to International Agreements: Shared Competences, Mixed Responsibilities” in Alan DASHWOOD and Marc MARESCEAU, eds., Law and Practice of EU External Relations: Salient Features of a Changing Landscape (Cambridge: Cambridge University Press, 2008), 145 at 159Google Scholar: “It is indeed striking that all agreements are concluded by the ‘European Union’ only; the Member States are not mentioned as parties. This clearly deviates from earlier arrangements in which the EU was merely used to coordinate the external policies of the Member States.”

49. SEVERINO, Rodolfo, “Introduction” in Rodolfo SEVERINO, ed., Framing the ASEAN Charter: An ISEAS Perspective (Singapore: ISEAS Publications, 2005), 3 at 6Google Scholar: ASEAN lacks “juridical personality or legal standing under international law”; Severino, supra note 2: “It is not and was not meant to be a supranational entity acting independently of its members.”

50. REUTER, Paul, Sixth Report on the Question of Treaties Concluded Between States and International Organizations or Between Two or More International Organizations, Yearbook of the International Law Commission, 1977, vol. II (Part One) at 123Google Scholar: “For a long time, in traditional international law and in its extension in the legal theory of the socialist countries, international organizations were treated as a means of collective action by States rather than as subjects of law; it was therefore easy to consider both that they represented member States and that they committed those States by the agreements they concluded.”

51. ASEAN Charter, supra note 5, art. 3.

52. TAN, Eugene K.B., “The ASEAN Charter as ‘Legs to go Places’: Ideational Norms and Pragmatic Legalism in Community Building in Southeast Asia” (2008) 12 Singapore Year Book of International Law 171 at 179 Google Scholar.

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54. For a discussion on “third State”, see generally FITZMAURICE, Malgosia, “Third Parties and the Law of Treaties” (2002) 6 Max Planck Yearbook of United Nations Law at 37−107 CrossRefGoogle Scholar.

55. VCLTIO, supra note 11, art. 34.

56. Ibid., art. 2(1)(h).

57. Ibid., art. 2(1)(g).

58. Ibid., art. 36(1).

59. Ibid., art. 35.

60. See also BRÖLMANN, Catherine, “International Organizations and Treaties: Contractual Freedom and Institutional Constraint” in Jan KLABBERS and Åsa WALLENDAHL, eds., Research Handbook on International Organizations (Cheltenham/Northampton, MA: Edward Elgar Publishing, 2011), 285 at 295−296 Google Scholar; CHINKIN, Christine, Third Parties in International Law (Oxford: Clarendon Press/New York: Oxford University Press, 1993) at 91 and 94Google Scholar.

61. See also REUTER, Paul, Second Report on the Question of Treaties Concluded Between States and International Organizations or Between Two or More International Organizations, Yearbook of the International Law Commission, 1973, vol. II at 92Google Scholar.

62. Chinkin, , supra note 60 at 40 Google Scholar: “Treaties, like any other form of agreement, characteristically incorporate both rights and duties as part of an interlocking bargain … treaty rights are likely to have obligations attached, and vice versa.”

63. Arts. 2(1)(h) and 2(1)(g) of the VCLTIO define a “third State” as “a State … not party to the treaty” and a “party” as “a State … which has consented to be bound by the treaty and for which the treaty is in force”, respectively.

64. 25th Meeting of the Committee of the Whole (A/CONF.129/C.1/SR.25, 10 March 1986) in the Official Records of the United Nations Conference on the Law of Treaties Between States and International Organizations or Between International Organizations (Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole), vol. I at 174 [25th Meeting of the Committee of the Whole].

65. This position is shared by the delegations of some of the states participating in the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations; See, for example, 20th Meeting of the Committee of the Whole (A/CONF.129/C.1/SR.20, 5 March 1986) in the Official Records of the United Nations Conference on the Law of Treaties Between States and International Organizations or Between International Organizations (Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole), vol. I at 146 (Greece), 148 (Federal Republic of Germany) [20th Meeting of the Committee of the Whole]. See also Rosalyn HIGGINS, “Final Report of the Legal Consequences for Member States of the Non-Fulfilment by International Organizations of their Obligations Towards Third Parties” (1995) 66-I Annuaire de l'Institut de Droit International 251: “Professor Dupuy concluded that states members were not to be considered parties to treaties concluded by the organization; but that these treaties had legal consequences for them … The legal personality of an organization does not result in members being ‘third parties’ to such agreements; agreements entered into by an international organization are opposable to states members. They may not act in a manner to thwart the execution of such treaties.”

66. Reuter, , supra note 61 Google Scholar.

67. Vienna Convention on the Laws of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) [VCLT].

68. See generally REUTER, Paul, First Report on the Questions of Treaties Between States and International Organizations or Between Two or More International Organizations, Yearbook of International Law Commission, 1972, vol. II at 177−178Google Scholar.

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70. Ibid. (emphasis added).

71. Ibid. (emphasis added).

72. Reuter, , supra note 68 at 182 Google Scholar.

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74. WALDOCK, Sir Humphrey, Third Report on the Law of Treaties, Yearbook of the International Law Commission, 1964, vol. II at 16−17Google Scholar.

75. Ibid., at 16.

76. Ibid., at 17.

77. Ibid. (emphasis added). See also WALDOCK, Sir Humphrey, Fourth Report on the Law of Treaties, Yearbook of the International Law Commission, 1965, vol. II at 22Google Scholar: “some members of the Commission at the sixteenth session noted that, although instances occurred of one State's being authorized by another to conclude a treaty on its behalf, they are infrequent … Other members considered that the practice, if not extensive, has a certain importance with regard to economic unions. These members also felt that the expanding diplomatic and commercial activities of States and the variety of their associations with one another may lead to an increase in cases of this type.”

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80. Ibid.

81. Ibid. (“The Special Rapporteur believes that, if on a limited scale and in particular connexions, the phenomenon of agency does exist in international law and does, in principle, belong to the general law of treaties.”)

82. Ibid.

83. Reuter, , supra note 68 at 182−184 Google Scholar.

84. Reuter, , supra note 61 at 92 Google Scholar.

85. Ibid.

86. Ibid.

87. An example would be the European Union and its Member States. See also Wessel, , supra note 48, 145 at 175−176 Google Scholar and 180 (the role of the EU Member States in agreements concluded by EU).

88. Reuter, , supra note 61 at 92 Google Scholar.

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92. Ibid., at 67 (emphasis in original).

93. REUTER, Paul, Sixth Report on the Question of Treaties Concluded Between States and International Organizations or Between Two or More International Organizations, Yearbook of the International Law Commission, 1977, vol. II (Part One) at 125−126 Google Scholar.

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96. Ibid., at 129−30.

97. Reuter, , supra note 93 at 130 Google Scholar.

98. Ibid.

99. Ibid.

100. Ibid.

101. Ibid.

102. Ibid.

103. Ibid., at 130−1.

104. Ibid., at 131−2.

105. Report of the International Law Commission on the Work of Its Thirtieth Session, supra note 94 at 134; Reuter, , supra note 90 at 69 Google Scholar; Report of the International Law Commission on the Work of Its Thirty-Fourth Session, supra note 94 at 43.

106. See, for example, Reuter, , supra note 93 at 133 Google Scholar; Reuter, , supra note 90 at 67 Google Scholar.

107. Reuter, , supra note 90 at 68 Google Scholar.

108. Ibid.

109. Ibid., at 67−8.

110. Ibid., at 68.

111. REUTER, Paul, Sixth Report on the Question of Treaties Concluded Between States and International Organizations or Between Two or More International Organizations, Yearbook of the International Law Commission, 1977, vol. II (Part One) at 125–126 Google Scholar; Report of the International Law Commission on the Work of Its Thirtieth Session, Yearbook of the International Law Commission, 1978, vol. II (Part Two) at 134; Reuter, , supra note 90 at 69 Google Scholar; Report of the International Law Commission on the Work of Its Thirty-Fourth Session, Yearbook of the International Law Commission, 1982, vol. II (Part Two) at 43.

112. Report of the International Law Commission on the Work of Its Thirty-Fourth Session, supra note 94 at 43. For other versions, see supra note 94.

113. Ibid.

114. Ibid., at 43−6.

115. Ibid., at 46 (emphasis added).

116. Ibid.

117. Ibid., at 46−7.

118. Ibid., at 47.

119. Ibid., at 46.

120. 28th Meeting of the Committee of the Whole (A/CONF.129/C.1/SR.28, 13 March 1986) in the Official Records of the United Nations Conference on the Law of Treaties Between States and International Organizations or Between International Organizations (Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole), vol. I at 194−5.

121. 20th Meeting of the Committee of the Whole, supra note 65, vol. I at 146.

122. Ibid. (Amendments proposed by Switzerland and the Netherlands).

123. Mr Paul Reuter was called in as an “Expert Consultant” at the 25th Meeting of the Committee of the Whole on 10 March 1986: see 25th Meeting of the Committee of the Whole, supra note 64, vol. I at 173−4.

124. 19th Meeting of the Committee of the Whole (A/CONF.129/C.1/SR.19, 5 March 1986) in the Official Records of the United Nations Conference on the Law of Treaties Between States and International Organizations or Between International Organizations (Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole) [19th Meeting of the Committee of the Whole], vol. I at 140−1.

125. See, for example, ibid., vol. I at 142 (International Labour Organization), 144 (United Nations Educational, Scientific and Cultural Organization), 145 (Cameroon); 20th Meeting of the Committee of the Whole, supra note 65, vol. I at 147 (Argentina), 152 (United States of America); 25th Meeting of the Committee of the Whole, supra note 64, vol. I at 176 (Brazil and Yugoslavia), 177 (Morocco).

126. See, for example, 20th Meeting of the Committee of the Whole, ibid., vol. I at 147; see 25th Meeting of the Committee of the Whole, ibid., vol. I at 175−6.

127. 20th Meeting of the Committee of the Whole, ibid., vol. I at 148: “if the article was deleted, the States members of an international organization would become third States and articles 35 and 36 would be applicable.” Contrast 20th Meeting of the Committee of the Whole, vol. I at 150: “if the articles were deleted, that would mean that certain particularly difficult questions would be left unregulated by the present draft convention.”

128. 25th Meeting of the Committee of the Whole, supra note 64, vol. I at 174.

129. Report of the Committee of the Whole (A/CONF.129/13, 20 March 1986) in the Official Records of the United Nations Conference on the Law of Treaties Between States and International Organizations or Between International Organizations (Documents of the Conference), vol. II at 71−2 (amendments to Draft Article 36 bis) and 77−8 (amendments to Draft Article 73).

130. Fitzmaurice, , supra note 54 at 65−66 Google Scholar.

131. VCLTIO, supra note 11.

132. As of 13 April 2013, the thirty states which have ratified are: Argentina, Australia, Austria, Belarus, Belgium, Bulgaria, Columbia, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Gabon, Germany, Greece, Hungary, Italy, Liberia, Liechtenstein, Malta, Mexico, the Netherlands, Republic of Moldova, Senegal, Slovakia, Spain, Sweden, Switzerland, the United Kingdom of Great Britain and Northern Ireland, and Uruguay.

133. Supra note 125.

134. Supra note 20 and accompanying text.

135. See also Chinkin, , supra note 60 at 93−94 Google Scholar.

136. Supra notes 86 and 88 and accompanying text.

137. Summary Records of the Sixteenth Session, 732nd Meeting, UN Doc. A/CN.4/167, 27 May 1964, Yearbook of the International Law Commission 1964, vol. I at 57.

138. Summary Records of the Sixteenth Session, 733rd Meeting, A/CN.4/167, 28 May 1964, Yearbook of the International Law Commission 1964, vol. I at 60.

139. Ibid.

140. Reuter, , supra note 68 at 183 Google Scholar.

141. Chinkin, , supra note 60 at 115 Google Scholar.

142. BROWNLIE, Ian, Principles of Public International Law (Oxford: Clarendon Press/New York: Oxford University Press, 1998) at 690 Google Scholar.

143. Art. 5(c)(ii), “The Legal Consequences for Member States of the Non-Fulfillment by International Organizations of Their Obligations Toward Third Parties” (1996) 66-II Annuaire de L'Institut de Droit International 445; Draft Articles on the Responsibility of International Organizations, with Commentaries, Report of the International Law Commission on the Work of its Sixty-First Session, UN Doc. A/64/10 (2009).

144. See, for example, SAROOSHI, Dan, “Some Preliminary Remarks on the Conferral by States of Powers on International Organizations” (2003) 4 New York University Jean Monnet Working Paper 1 Google Scholar; SAROOSHI, Dan, “Conferrals by State of Powers on International Organizations: The Case of Agency” (2004) British Yearbook of International Law 291 CrossRefGoogle Scholar.

145. Sarooshi, “Conferrals by State of Powers on International Organizations: The Case of Agency”, supra note 144 at 299−301 and 301−4.

146. Ibid., at 320.

147. Ibid., at 321.

148. Ibid., at 321−4. See also Chinkin, supra note 60 at 116.

149. Sarooshi, , “Conferrals by State of Powers on International Organizations: The Case of Agency”, supra note 144 at 321 Google Scholar.

150. Chinkin, , supra note 60 at 115 Google Scholar.

151. Ibid.

152. Ibid.

153. Supra note 137, vol. I at 59.

154. Supra note 138, vol. I at 63.

155. Waldock, , supra note 77 at 23 Google Scholar.

156. VCLTIO, supra note 11, arts. 34 and 35.

157. Ibid., arts. 2(1)(h) and 34.

158. Chinkin, , supra note 60 at 65 Google Scholar (emphasis added).

159. SERENI, A.P., “Agency in International Law” (1940) 34 American Journal of International Law 638 at 655 Google Scholar (emphasis added).

160. Chinkin, , supra note 60 at 66 Google Scholar. See also Report of the International Law Commission on the Work of Its Thirty-Fourth Session, supra note 94 at 47.

161. See, for example, 19th Meeting of the Committee of the Whole, supra note 124, vol. I at 142 (International Labour Organization), 144 (United Nations Educational, Scientific and Cultural Organization), 145 (Cameroon); 20th Meeting of the Committee of the Whole, supra note 65, vol. I at 147 (Argentina), 152 (United States of America); 25th Meeting of the Committee of the Whole, supra note 64, vol. I at 176 (Brazil and Yugoslavia), 177 (Morocco).

162. Reparation Advisory Opinion, supra note 73. The Reparation Advisory Opinion was decided in 1949, and the VCLTIO was codified in 1986.

163. See, for example, 19th Meeting of the Committee of the Whole, supra note 124, vol. I at 142 (International Labour Organization), 144 (United Nations Educational, Scientific and Cultural Organization), and 145 (Cameroon); 20th Meeting of the Committee of the Whole, supra note 65, vol. I at 147 (Argentina) and 152 (United States of America); see 25th Meeting of the Committee of the Whole, supra note 64, vol. I at 176 (Brazil and Yugoslavia) and 177 (Morocco).

164. Supra note 48. See also supra notes 33 and 37 for examples of treaties concluded by ASEAN on behalf of its Member States.

165. LEAL-ARCAS, Rafael, “The European Community and Mixed Agreements” (2001) European Foreign Affairs Review 483 at 484 Google Scholar: “EC Treaty practice has become increasingly dominated by mixed agreements”; STEINBERGER, Eva, “The WTO Treaty as a Mixed Agreement: Problem with the EC's and the EC Member States’ Membership of the WTO” (2006) 17 European Journal of International Law 837 at 838 Google Scholar: “Since the establishment of the European Communities the EC has created a wide range of external relations with non-member states through bilateral and multilateral agreements. A large number of these agreements have been concluded jointly by the EC and its Member States and form the group of so-called Mixed Agreements.”

166. VCLT, supra note 67, art. 26.

167. Art. 34(1) of the Statute of the International Court of Justice.

168. See, for example, art. III(1) of the Memorandum of Understanding Between the ASEAN Secretariat and the Ministry of Agriculture of the People's Republic of China on Agricultural Cooperation, 2 November 2002 (“The Participants agree that the executing agencies for the implementation of this Memorandum of Understanding are the ASEAN Secretariat for the ASEAN Member Countries …”); art. 3(1) of the Memorandum of Understanding Between the Governments of the Member Countries of the ASEAN and the Government of the People's Republic of China on Cooperation in the Field of Non-Traditional Security Issues, 10 January 2004 (“The Parties agree that the implementing agencies for this Memorandum of Understanding are the ASEAN Secretariat in coordination with the relevant national agencies of the ASEAN Member Countries …”). Contrast art. 3(1)(a) of the Memorandum of Understanding Between ASEAN and the Government of the People's Republic of China on Cooperation in the Field of Non-Traditional Security Issues, 18 November 2009 (“The Parties agree that the implementing agencies for this Memorandum of Understanding are the relevant national agencies of the ASEAN Member States …”).

169. See, for example, VCLT, supra note 67, art. 73: “The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States”; and VCLTIO, supra note 11, art. 74(1): “The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty between one or more States and one or more international organizations from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States”; Chapter VI (Effects of Armed Conflicts on Treaties), Report of the International Law Commission on the Work of Its Sixty-Third Session, Yearbook of the International Law Commission, 2011, vol. II (Part Two).

170. See, for example, VCLTIO, supra note 11, art. 74(3).