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Published online by Cambridge University Press: 13 January 2010
The Conference on the Law of Treaties held at Vienna in 1968 and 1969, like the other important United Nations conferences on the codification of international law (Geneva Conferences on the Law of the Sea of 1958 and 1960, Vienna Conference on Diplomatic Intercourse and Immunities of 1961 and Vienna Conference on Consular Relations of 1963), formulated and adopted a Convention on the basis of a draft which was the collective work of the International Law Commission (ILC) of the United Nations, carried out under the guidance of a Special Rapporteur.
We have thus been witnessing since 1958 the interesting process of the reduction into treaty law of a substantial part of the customary international law of peace; if this period is compared with the centuries that went before, the transformation of unwritten rules into written law which has thus taken place appears remarkably fast. This codification of public international law has of course served to clarify pre-existing rules but it has at the same time made it possible to bring these rules up to date so as to meet better the new requirements of the community of States—the society which is governed by that law and which has undergone significant changes in the last few decades.
Extract from a lecture given by the author on 12 October 1971, to the Société genevoise de droit et de législation on “La Conférence des Nations Unies sur le droit des traités (Vienne, 1968/1969): participation suisse”. The views expressed in this article (and in the lecture on which it is based) are exclusively the author's own and do not necessarily reflect those of the United Nations Secretariat, of which he is a member.
2 The conference was held in two sessions, the first from 26 March to 24 May 1968 and the second from 9 April to 22 May 1969. Its proceedings have been recorded in three volumes published under the title “United Nations Conference on the Law of Treaties. Official Records.” The first (document A/CONF. 39/11, United Nations publication, Sales No.: E. 68.V.7) and second (document A/CONF. 39/11/Add. 1, Sales No.: E.70. V.6) contain the summary records of the plenary meetings and of the meetings of the Committee of the Whole held during the first and second sessions of the Conference respectively; the third volume (A/CONF. 39/11/Add.2, Sales No.: E.70.V.5) contains the documents of the Conference.
3 United Nations Conference on the Law of the Sea. Geneva, 24 February-27 April 1958. Official Records, volumes I to VIIGoogle Scholar (documents A/CONF. 13/37 to 43, United Nations publication, Sales No.: 58.V.4, Vol. I to VII). Volume II (Plenary meetings) (document A/CONF. 13/38) contains (pp. 132–143) the four 1958 Geneva Conventions on the Law of the Sea.
4 United Nations Conference on Diplomatic Intercourse and Immunities. Vienna, 2 March–14 April 1961. Official Records, Vol. I Google Scholar (A/CONF. 20/14—United Nations publication, Sales No.: 61.X.21) and Vol. II (A/CONF. 20/14/Add.l, Sales No.: 62.X.1); the second volume contains (pp. 82–88) the Vienna Convention on Diplomatic Relations.
5 United Nations Conference on Consular Relations. Vienna, 4 March–22 April 1963. Official Records, Vol. I Google Scholar (A/CONF. 25/16–United Nations publication, Sales No.: 63.X.2) and Vol. II (A/CONF; 25/16/Add.1, Sales No.: 64.X.1); the second volume contains (pp. 175–189) the Vienna Convention on Consular Relations.
6 For the topic of the Law of Treaties, the Special Rapporteur was Sir Humphrey Waldock, Chichele Professor of Public International Law, Oxford University, member of the ILC since 1961. In accordance with a now well-established tradition, he assisted the Vienna Conference as Expert Consultant.
7 The “Diplomatic Conference for the Establishment of International Conventions for the Protection of War Victims”, held in Geneva from 21 April to 12 August 1949, was, of course, convened by the Swiss Federal Council, depositary and custodian of the Geneva Conventions.
8 The parts of the lecture which followed here and which have been omitted from the present extract, dealt with the remarkable achievements of the United Nations in the codification of international law, with the procedure followed in that connection and in particular the working methods of the ILC, and with the work of the Vienna Conference on the Law of Treaties.
9 See, with respect to Switzerland's concern to participate in all the stages of the process of codification of international law by the United Nations, United Nations Conference on the Law of Treaties. Official Records, First session, third meeting of the Committee of the Whole, paragraph 45, p. 18 Google Scholar, and fifty-sixth meeting of the Committee of the Whole, paragraph 25, p. 323. It is interesting to note that the ILC, when it adopted on first reading, in 1971, its draft on relations between States and international organizations, stated in its report for that year: “Bearing in mind the position of Switzerland as the host State in relation to the Office of the United Nations at Geneva and to a number of Specialized Agencies, as well as the wish expressed by the Government of that country”, the Commission deemed it useful to transmit the draft not only to Governments of States members of the United Nations, but also to the Government of Switzerland. (See paragraph 28 of the Report of the ILC on the work of its twenty-third session—document A/8410, to be reproduced in Volume II of the Yearbook of the International Law Commission for 1971).Google Scholar
10 See in American Journal of International Law (AJIL), Vol. 64 (1970), pp. 495–561 Google Scholar, the article “The Treaty on Treaties”, by Kearney, Richard D. and Dalton, Robert E.; Kearney, Ambassador R. D. has been a member of the ILC since 1967 Google Scholar.
11 On this occasion, Mr. Rudolf L. Bindschedler, legal adviser, Swiss Federal Political Department, and deputy leader of the Swiss delegation at the Vienna Conference.
12 See United Nations Conference on the Law of Treaties, Official Records, 100th meeting of the Committee of the Whole, paragraph 26, p. 312.Google Scholar
13 The Vienna Convention on the Law of Treaties of 1969 was signed by 47 States, a dozen of which have so far ratified it.
14 By 31 December 1971, the ratifications and accessions to the Geneva Conventions on the Law of the Sea of 1948 numbered 42 for the Convention on the Territorial Sea and Contiguous Zone, 49 for the Convention on the High Seas, 33 for the Convention on Fishing and Conservation of the Living Resources of the High Seas and 49 for the Convention on the Continental Shelf. At that same date, the number was 102 for the 1961 Vienna Convention on Diplomatic Relations and 47 for the 1963 Vienna Convention on Consular Relations. As for the Convention on Special Missions, adopted by the General Assembly at its 1969 session, it has so far been signed by 14 countries. See, in this connection: United Nations, Multilateral Treaties in respect of which the Secretary-General performs Depositary Functions—List of Signatures, Ratifications, Accessions, etc., as at 31 December 1971 (document ST/LEG/SER. D/5—United Nations publication, Sales No.: E.70.V.7).
15 Contained in paragraph 3 of Article 60 of the Convention, mentioned below.
16 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 47.
17 By 77 votes to 6, with 11 abstentions. The text of the paragraph was, however, amended by the deletion of the word “expressly” which appeared in the preamble of the 1961 Convention on Diplomatic Relations and in that of the 1963 Convention on Consular Relations. Mr. M. K. Yasseen (Iraq), Chairman of the Drafting Committee, pointed out that the questions which arose were settled by the articles of the Convention on the Law of Treaties either directly (i.e., expressly) or “indirectly, in other words implicitly”. See op. cit. (note 12), thirty-first plenary meeting, paragraph 68, p. 174.
18 Ibid., thirty-first plenary meeting, paragraphs 20 and 21, p. 170.
19 See the text of the Hague Convention of 1970 (Convention No. IV) in the General Collection of the Laws and Customs of War, on land, on sea, under sea and in the air according to the Treaties elaborated by the International Conferences since 1856. Brussels (1943), p. 251.Google Scholar
English version taken from The Hague Conventions and Declarations of 1899 and 1907 (published by the Division of International Law of the Carnegie Endowment for International Peace), edited by Scott, James Brown, New York, 1915, pp. 101–102.Google Scholar
The French original reads: “… restent sous la sauvegarde et sous l'empire des principes du Droit des gens, tels qu'ils résultent des usages établis entre nations
civilisées (see Recueil général des lois et coutumes de la guerre terrestre, maritime, sous-marine et aérienne, d'après les actes élaborés par les Conférences internationales depuis 1856. Bruxelles (1943), p. 250). The meaning could perhaps be better rendered less literally as follows: “… shall continue to be protected, and to be governed, by the principles of international law, as reflected in the established custom of civilized nations …”
20 For the text of the Convention, see op. cit. (note 2), Documents of the Conference, Vienna Convention on the Law of Treaties, pp. 289–301 Google Scholar. For a full account of the various stages of the legislative history of each article, see the book by MrRosenne, S. (member of the ILC from 1962 to 1971), The Law of Treaties—a guide to the legislative history of the Vienna Convention, 1970 Google Scholar.
21 The experts representing certain States even proposed that each delegation should have as many votes as delegates. But the diplomats present at the 1896 Conference objected to any form of vote, on the grounds that it would be contrary to the sovereignty of States.
22 On all these questions, see Dunn, F. S., The practice and procedure of international conferences (1929), pp. 91–151, especially pp. 95–97, 105, 112–115, 129–130 and 148–151 Google Scholar; see also Hill, N. L., The public international conference (1969), pp. 188–189 Google Scholar.
23 It was easier in this case to adopt parliamentary rules of procedure because the representatives at the Bern Conference of 1874 were senior officials of their countries' postal administrations and not diplomats or statesmen as at Berlin in 1878 and 1884–1885.
24 The proceedings of these Conferences record, for example, the adoption of a wish (vœu) “unanimously, saving two negative votes” by named States “and the abstention” of another, an ingenious device which paid lip-service to the unanimity rule just as it was about to be discarded.
The same idea is to be found even in the Final Act of the 1899 Conference: “… the last five wishes were voted unanimously, saving some abstentions” (see Ministère des Affaires étrangères, La Haye, 1899, Conférence Internationale de la Paix, La Haye, 18 mai-29 juillet 1899 (Acte final), Vol. I, p. 222).Google Scholar
25 Op. cit. (note 3), Vol. II (A/CONF. 13/38), rules of procedure, pp. xxxi–xxxvi (see rule 35). A similar rule was included in the rules of procedure of the other United Nations conferences.
26 Professor Ago, Roberto, of Rome University, member of the International Law Commission since 1957 Google Scholar (President of the ILC in 1965), re-elected in 1971 by the General Assembly for a fourth five-year term (1972–1976).
27 Op. cit. (note 12), eighth plenary meeting, para. 76, p. 18.
28 Ibid., paragraph 77, p. 18
29 Ibid., ninth plenary meeting, paragraphs 27 and 28, p. 21.
30 This occurred, in particular at the 1963 Vienna Conference on Consular Relations, where in the Commission proceedings (in which decisions are taken by a simple majority) changes were introduced into the ILC text although they had the support of only a small minority of the 92 States represented at the Conference. Thus, an amendment to article 49 (article 50 in the final text of the Convention), on customs exemptions granted to consuls, was adopted by 25 votes to 19, with 21 abstentions, and an amendment to the article relating to the exemption from personal services and contributions was adopted by 26 votes to 11, with 25 abstentions. See Official Records of the Conference (op. cit., note 5 above), Vol. II Google Scholar, Report of Commission II, paragraphs 179 and 186, at p. 137.
31 The Sections concerning article 12 (Consent to be bound by a treaty expressed by signature), article 18 (Obligation not to defeat the object and purpose of a treaty prior to its entry into force) and article 20 (Acceptance of and objection to reservations) which followed in the original lecture (see note 8), and those dealing with article 1 (Scope of the present Convention) and article 66 (Procedures for judicial settlement, arbitration and conciliation) have not been included in this article because they are of minor interest to readers of the International Review of the Red Cross.
32 Op. cit. (note 12), twentieth plenary meeting, paragraphs 30 and 31, p. 103.
33 Lord McNair (then Sir Arnold McNair), author of one of the most important works on the subject ( The Law of Treaties, Oxford, Clarendon Press, 1961).Google Scholar
34 Op. cit. (note 9), fifty-sixth meeting of the Committee of the Whole, paragraph 26, pp. 323–324.
35 Ibid., sixty-first meeting of the Committee of the Whole, paragraph 12, page 354.
36 Ibid., paragraph 83.
37 Op. cit. (note 12), twenty-first plenary meeting, paragraph 21, p. 112. The concept that the rules contained in the principal humanitarian Conventions on the laws of war (Hague Convention No. IV of 1907 and annexed Regulations, Geneva Conventions, etc.) form part of the general international law and are even of a peremptory character was already widely recognized at the time of the Second World War (see Daniel, J., Le problème du châtiment des crimes de guerre d'après les enseignements de la deuxième guerre mondiale, thèse, Paris, 1946, pp. 75–76, p. 111, etc.).Google Scholar
38 Op. cit. (note 12), twenty-first plenary meeting, paragraph 21, p. 112.Google Scholar
39 Ibid., paragraph 22, p. 112.
