¹ The text of Art. 18 reads as follows:

“Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No sueh treaty or international engagement shall be binding until so registered.”

² May 1, 1952.

³ U.N. Doc. A/64/Add.1, Resolution 97 (I).

⁴ League of Nations Treaty Series, Vol. I, p. 9. See Hudson, “ The Registration and Publication of Treaties,” this Journal, Vol. 19 (1925), pp. 273 – 292, at p. 276.

⁵ United Nations Conference on International Organization (hereinafter cited as U.N.C.I.O.), Documents, Vol. 13, Commission IV, p. 705. See also verbatim minutes of eleventh meeting of Committee IV/2, U.N.C.I.O. Docs., Vol. 87.

⁶ The word “instrument” has been used in this study as a useful term to denote every written type of treaty or international agreement, but without regard as to whether in any particular case such an “instrument” is a “treaty” or “international agreement” within the meaning of Art. 102 of the Charter.

⁷ See, for a partial list of such denominations, Hudson, loc. cit., p. 277. Moreover, it may be doubted whether an inquiry into the practice of the Organization of American States would be of any assistance in the present connection, since the Lima Eesolution of Dec. 23, 1938, under the terms of which the registration proceeds, only refers to the term “treaty.” See Hudson, this Joubnal, Vol. 38 (1944), p. 98.

⁸ It is interesting to note that the Report of Sub-Committee No. 5 of the First Committee of the Assembly of the League of Nations (1921), reads in part: “According to Article 18 the duty of registration applied not only to treaties properly so-called, but to all “international engagements,” that is to say, to all agreements which give rise to international legal obligations. The phrase is of an entirely general nature, and, as it appears in the Covenant, makes it impossible to except any international agreements on the ground either of their nature, or their form, or their importance, or of their duration, or of the capacity of the authorities which have legitimately concluded them.” League of Nations Records, 2nd Assembly, Meetings of Committees, E & F, p. 167.

⁹ See p. 61 infra.

¹⁰ It may be confidently assumed that the “Declaration of Principles,” known as the Atlantic Charter, issued by the Prime Minister of the United Kingdom and the President of the United States on Aug. 14, 1941, was an “international engagement.” The Atlantic Charter was included as a “related Document” to the “Declaration by United Nations, done at Washington on January 1, 1942” which was registered with the League of Nations by the United Kingdom, League of Nations Treaty Series, Vol. CCIV, p. 381. It may be remarked that the Atlantic Charter is one of the most unlegalistic instruments ever registered, and is not couched in language of legal obligation. However, the fact that the instrument records an agreement sufficient to regard it as an “international engagement,” is undeniable.

¹¹ U.N.C.I.O. Docs., Vol. 13, Commission IV, p. 627. A fortiori the presumption is raised that such instruments can neither be regarded as forming part of the genus “treaty.”

¹² See Mervyn Jones, “ International Agreements other than Interstate Treaties—Modern Developments,” in British Tear Book of International Law, Vol. 21 (1944), pp. 111 –122. He discusses not the designation of agreements, but the parties thereto.

¹³ General Assembly, 2nd Sess., Official Records, Sixth Committee, pp. 116–117. See also, Verbatim Minutes of Third Meeting of Committee IV/2, U.N.C.I.O. Does., Vol. 86. It is thought that a postal services agreement, such as that concluded between the United Kingdom (on behalf of Mauritius) and Portugal (on behalf of Mozambique), and signed by the respective postmasters general of the two colonies, U. N. Treaty Series (hereinafter cited as U.N.T.S.), Vol. 5, p. 263, is of the type contemplated in this statement. Per contra, see Fawcett, “ Treaty Relations of British Overseas Territories,” British Year Book of International Law, Vol. 26 (1949), p. 105, footnote 2; but see The International Law Quarterly, Vol. 3 (1950), pp. 449–452.

¹⁴ General Assembly, 2nd Bess., Official Records, Sixth Committee, p. 117. See also, Mann, “The Law Governing State Contracts,” British Year Book of International Law, Vol. 21 (1944), pp. 11– 33.

¹⁵ The term “unilateral declaration” would have been preferable on account of its greater precision, since the use of the word “engagement” may give rise to the possibilities of confusion. It may be mentioned that the Draft Convention on the Law of Treaties (hereinafter cited and referred to as the Harvard Draft), prepared by the Research in International Law, Harvard Law School, Cambridge, Mass., 1935 (this Journal, Supp., Vol. 29 (1935), p. 653), uses the term “unipartite declaration.” However, “unipartite” would appear to be a terminological misuse.

¹⁶ U.N.C.I.O. Docs., Vol. 13, Commission IV, p. 705.

¹⁷ To this effect see note by Secretariat, U.N.T.S., Vol. 1, p. xvi. It would seem clear in this respect that the functions of the Secretariat are not purely ministerial, and that they must extend to a legal determination of what constitutes a “treaty” or “international agreement.” See Schachter, “The Development of International Law through the Legal Opinions of the United Nations Secretariat,” British Year Book of International Law, Vol. 25 (1948), pp. 91–132, at p. 128. In this connection the attitude adopted by the first Secretary General of the League may be contrasted. See Parry, “Some Recent Developments in the making of Multi-Partite Treaties,” Transactions of the Grotius Society, Vol. 36 (1951), pp. 149 –189, at p. 163.

¹⁸ It may be noted that some such instruments are entitled: “Declaration of Acceptance of the Obligations Contained in the Charter of the United Nations”; e.g., the Declaration made by Burma and registered ex officio by the Secretariat, U.N.T.S., Vol. 15, p. 3. See also Comment to the Harvard Draft, loc. cit., p. 691, where the nature of declarations made by new Members to the League of Nations at the time of their admission is discussed.

¹⁹ The representative of the United Kingdom agreed with the Secretariat’s view of such declarations, but the representative of Poland did not. General Assembly, 2nd Sess., Official Reeords, Sixth Committee, pp. 120–122. It may also be noted that Kelsen, in his Law of the United Nations (1950), at p. 705, footnote 7, characterizes them as “international undertakings,” citing U.N. Doc. A/380, and rightly remarks that neither Art. 102 of the Charter nor the Registration Regulations refer to “international undertakings.” It may be mentioned, however, that the original text of U.N. Doc. A/380, was in French, and that the declarations were referred to in that language “comme constituant des engagements internationaux.”

²⁰ See the Eastern Greenland Case, P. C. I. J., Series A/B, No. 53, p. 69 et seq., where the Permanent Court of International Justice held as binding upon the Norwegian Government an oral declaration made by M. Ihlen, the Norwegian Foreign Minister, to the Danish Foreign Minister to the effect that the plans of the Danish Government respecting Danish sovereignty over Eastern Greenland would meet with no difficulties on the part of Norway. See, for comment on this case, Garner in this Journal, Vol. 27 (1933), pp. 493–497, where he cites some precedents. See also Comment to the Harvard Draft, loo. cit., p. 728 et seq.

²¹ This statement is of course conditioned by the implication contained in the very nature of registration; namely, that in the case of an oral agreement, some kind of permanent authentication is essential. It is thought, however, that this need not neeessarily be in writing, and could even take the form of a disk recording the agreement.

²² E.g., Art. IX of the United Nations Relief and Rehabilitation Administration Agreement, this Journal, Supp., Vol. 38 (1944), p. 33; Art. VII of the Protocol amending the Agreements, Conventions and Protocols on Narcotic Drugs, concluded at The Hague on Jan. 23, 1912; at Geneva on Feb. 11, 1925, and Feb. 19, 1925, and July 13, 1931; at Bangkok on Nov. 27, 1931; and at Geneva on June 26, 1936, U.N.T.S., Vol. 12, p. 179.

²³ Rousseau in his Principes généraux du droit international public (1944), at p. 143, gives the following definition “En droit international on doit appeler traité tout accord conclu entre sujets du droit des gens, c’est-à-dire entre membres de la communauté Internationale. C’est là la définition du traité au sense large.” (Italics added.)

²⁴ McNair, Law of Treaties (1938), at p. 3. See also Rousseau, op. cit., at p. 149, to the same effect.

²⁵ Ibid., at p. 154: “Aucune raison de nécessité ne régissant la terminologie de ces divers instruments conventionnels, il est facile de voir que tous peuvent être également et indifféremment utilisés pour la réalisation d’une opération juridique déterminée, des aetes de mêne nature matérielle pouvant ainsi être mis en forme à l’aide de procédés techniques variables.”

²⁶ Oppenheim’s International Law (7th ed. (1948) by Lauterpacht), at p. 793, footnote 2; and see the authorities therein cited. It has not been thought pertinent for the purposes of this study either to enter into a discussion of the juridical quality of “law making treaties” as the term is used by Lauterpacht, or to enquire into the legal significance of Hudson’s “international legislation.”

²⁷ League of Nations Doc. C.196.M.70, 1927, p. 112; this Journal, Spec. Supp., Vol. 20 (1926), p. 215. See also to the same effect Art. 4 of the Harvard Draft and Comment thereon, loe. cit., p. 710 et seq. Art. 4 reads: “The international juridical effect of a treaty is not dependent upon the name given to the instrument.”

²⁸ U.N. Doc. A/138.

²⁹ U.N. Doc. A/C.6/56.

³⁰ Oppenheim, op. cit., p. 808.

³¹ Op. cit., p. 48.

³² U.N. Doc. A/CN.4/23. The report as a whole constituted somewhat of a departure from the traditional thinking on the law of treaties, and incorporated certain controversial aspects of treaty practice which had been developed under the auspices of the United Nations. This fact did not escape the attention of the other members of the Commission. Yepes stated that it set out “the principles of the English school of International Law,” which he was not sure the Commission ought to accept, U.N. Doc. A/CN.4/SR.50, p. 9; and Amado was unable to refrain from the comment that Brierly in his book, The Law of Nations (4th. ed., 1949), “had outlined a doctrine diametrically opposed to the one on which his present draft was based,” U.N. Doc. A/CN.4/SR.49, p. 25.

³³ This term is used here advisedly and for want of a better word, although Brierly indicated in his report that it was “not intended to supply an independent definition.” U.N. Doc. A/CN.4/23, p. 8.

³⁴ U.N. Doc. A/CN.4/SR.50, p. 4.

³⁵ Ibid., p. 7, and A/CN.4/SR.52, p. 3. It may be noted that Hudson was not among the authorities responsible for this particular Harvard Draft Convention.

³⁶ U.N. Doc. A/CN.4/SR.52, p. 6.

³⁷ Ibid., p. 4.

³⁸ Ibid., p. 7.

³⁹ U.N. Doc. A/CN.4/23, p. 17. Indeed such registration and that of an exchange of letters, never provided any difficulty under the League practice either. For an unusual example, see Exchange of Letters between the Netherlands and the International Court of Justice recording an Agreement relating to privileges and immunities of the International Court of Justice, the Registrar, etc., U.N.T.S., Vol. 8, p. 61. It is thought that this is the only example at the time of writing of an international agreement which has been concluded between a state an an organ of the United Nations, referred to in the Charter. It may be observed that the conclusion of such agreements was envisaged in the original draft Registration Regulations submitted by the Secretary General. See U.N. Doc. A/138, p. 1, footnote (d).

⁴⁰ Thus Art. 1 (b) states with reference to the use in the draft convention of the term “treaty”: “The term ‘treaty’ does not include an agreement effected by exchange notes.” Loc. cit., p. 698.

⁴¹ Ibid.

⁴² U.N. Doc. A/CN.4/SB.50, pp. 13–14.

⁴³ Ibid., pp. 14–15.

⁴⁴ See U.N. Doc. A/CN.4/SB.51, p. 7.

⁴⁵ Ibid., p. 11.

⁴⁶ Ibid., p. 13.

⁴⁷ U.N. Doc. A/CN.4/43. It may be noted that since the time of writing, Brierly has resigned from membership in the Commission, and although he presented a “Third Report on the Law of Treaties” (U.N. Doc. A/CN.4/54), it was not discussed. Professor Lauterpacht was subsequently elected special Rapporteur and requested to present a report to the Commission at its fifth session in 1953.

⁴⁸ See, generally, Verdross, “Forbidden Treaties in International Law,” this Journal, Vol. 31 (1937), pp. 571–577. See also League of Nations Records, 2nd Assembly, Minutes of the First Committee, p. 77, and U.N. Docs. A/C.6/125 and A/C.6/131.

⁴⁹ Par. 2 of Art. 2 of the Charter reads as follows: “All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.”

⁵⁰ U.N. Doc. A/CN.4/SR.88, p. 26. It may be observed that the Charter does not authorize the Secretary General to request an advisory opinion of the Court, and that even if the General Assembly adopted a convention on the law of treaties containing the provision set forth in the second paragraph of Tepes’ proposed article, this would not constitute sufficient authorization.

⁵¹ It was suggested by the representative of Venezuela in Committee IV/2 at San Francisco that the Secretary General might be authorized to “suspend” registration pending such a determination. U.N.C.I.O. Docs., Vol. 86, p. 15.

⁵² See the statement of the Permanent Court of International Justice in The Wimbledon, P.C.I.J., Series A, No. 1, p. 25, and also the Harvard Draft, loo. cit., pp. 705–710. Scelle puts it inversely: “Dans la pratique des relations internationales … c’est cette possibilité de se gouverner librement, de prendre soi-même des décisions, notamment en matière de relations et de tractations Internationales, ou d’un mot en matière de treatymaking power, qui caractéise ce qu’on appelle un Etat, et un Etat souverain.” Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion, Pleadings, Oral Arguments, Documents, p. 67.

⁵³ U.N. Doe. A/CN.4/L.28, p. 3.

⁵⁴ U.N. Doe. A/CN.4/SR.98, p. 24.

⁵⁵ Thus, the International Court of Justice has expressly observed that the Charter provides for the conclusion of agreements between the United Nations and its Members, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C. J. Reports, 1949, pp. 174, 178–179. Examples of such international agreements may be cited from the U. N. Treaty Series. Similarly, it may be observed that as a matter of practice the various Specialized Agencies, acting under their constitutional provisions, have entered into agreements with states. Furthermore, international agreements have been concluded not only between the United Nations and a Specialized Agency, but also between two Specialized Agencies. A particularly interesting example of the former type, considering its subject-matter, may be said to be the “Memorandum of Understanding concerning the procedure to be followed for the deposit and registration with the United Nations of International Labour Conventions and certain other instruments adopted by the International Labour Conference,” which was signed at Lake Success on Feb. 17, 1949. See U.N.T.S., Vol. 26, p. 323.

⁵⁶ Art. 10, which provides that “the Secretariat shall file and record treaties and international agreements, other than those subject to registration under article 1 of these regulations, if they fall in the following categories: (a) Treaties or international agreements entered into by the United Nations or by one or more of the Specialized Agencies.” Such ex post facto assumption, however, may be misleading.

⁵⁷ See Parry, “ The Treaty-Making Power of the United Nations,” British Tear Book of International Law, Vol. 26 (1949), pp. 108–149, who maintains that the international legal personality of the United Nations “is not the source of the Treaty-making Power of the Organization” (p. 147), and distinguishes between the express powers of the United Nations as provided in the Charter, and its inherent treaty-making powers.

⁵⁸ The word “entity” is used to include all types of governmental international organizations. See the examples cited by Dr. Kerno, former Assistant Secretary General of the United Nations, Proceedings, American Society of International Law, 1951, p. 148.

⁵⁹ See Art. 1 (c) of Brierly’s draft convention, p. 59, supra. Nevertheless, despite this total lack of capacity, it may not be denied that the effect of such an agreement may be to create enforceable rights for such an entity. Advisory Opinion on the Jurisdiction of the Courts of Danzig, P.C.I.J., Series B, No. 15, p. 17.

⁶⁰ See p. 53, supra, and Rosenne, “Recognition of States by the United Nations.” British Year Book of International Law, Vol. 26 (1949), p. 444, and also Eagleton, “The Handling of Treaties by the Secretariat of the United Nations,” Proceedings, American Society of International Law, 1951, pp. 139–147, at p. 141.

⁶¹ See Brierly’s report where he stated: “It is clear that the inherent treaty-making capacity of international organizations, which thus exists, is confined to capacity to make treaties compatible with the letter and spirit of their several constitutions.” U.N. Doc. A/CN.4/23, p. 21.

⁶² Provided one party is a Member State, such an instrument is prima facie registrable even if communicated to the Secretariat by a non-member state (Art. 1, par. 3, of the Registration Regulations; p. 50, supra). In the circumstance where the treaty-making capacity is not questioned, registration may be said to proceed in the normal way. E.g., Cultural Agreement between Austria and Prance, signed at Vienna March 15, 1947, and communicated to the Secretariat by the liaison officer of Austria with the United Nations, U.N.T.S., Vol. 12, p. 109. With regard to registration by non-member states, see U.N.C.I.O. Docs., Vol. 13, Commission IV, p. 706; and General Assembly, Official Records, 1st Sess., Pt. II, Sixth Committee, p. 190, footnote 3.

⁶³ It may be thought that a factor to be considered in making such a determination is whether the entity can enter into an international agreement with a state which is not a party to its constituent instrument. But this again might be an ex post facto determination.

⁶⁴ The word “parties” is used here loosely with full realization that, strictly speaking, no state can be a party to an instrument until it has entered into force (except where it enters into force in respect of each state separately, such as the Convention on the Privileges and Immunities of the United Nations), and even then only party to the agreement contained in the instrument.

⁶⁵ The common method of authenticating or identifying the written record of an agreement by means of signature, or signature ne varietur is to be distinguished here. It is thought that, provided an instrument is certified, or authenticated in some manner, the particular method used—whether by signature or otherwise—is immaterial for purposes of registration. It may be noted that conventions concluded by the General Assembly are authenticated by means of their “adoption” or “approval.” See the article adopted by the International Law Commission on the “Establishment of the Text of Treaties,” U.N. Doc. A/CN.4/L.28.

⁶⁶ Loc. cit., p. 733. See, to the same effect, the Brierly Report, op. tit., p. 13, and Hyde, International Law, Chiefly as Interpreted and Applied by the United States, Vol. II (2nd rev. ed., 1947), p. 1429.

⁶⁷ Some recently concluded agreements have been merely initialed by the negotiators. E.g., the U. S. U. K. Memorandum of Agreement relating to the Economic Fusion of the American and British Zones of Occupation in Germany, 1946, U.N.T.S., Vol. 7, p. 163, and the Memorandum of Agreement relating to the Production and Marketing of Wheat, Washington (1942), ibid., Vol. 8, p. 237.

⁶⁸ Exchange of notes approving the memorandum of understanding of May 20, 1943, relating to the purchase by the U. S. Government of the exportable surplus of certain Dominican food products. Ibid., Vol. 21, p. 277.

⁶⁹ Exchange of notes between U. K. Chancellor of the Exchequer and the Canadian Minister of Finance, ibid., Vol. 20, p. 22.

⁷⁰ Exchange of notes between U. S. Ambassador to Venezuela and Venezuelan Minister of Foreign Affairs, ibid., Vol. 21, p. 228.

⁷¹ Ibid., p. 237.

⁷² Executive Agreement Series 362.

⁷³ See Art. 2, par. 1, of the Regulations, which reads as follows: “When a treaty or international agreement has been registered with the Secretariat, a certified statement regarding any subsequent action which effects a change in the parties thereto, or the terms, scope or application thereof, shall also be registered with the Secretariat.”

⁷⁴ U.N.T.S., Vol. 9, p. 408.

⁷⁵ Ibid., Vol. 42, p. 3. Art. 10 reads as follows:

⁷⁶ 1. Each Allied or Associated Power will notify Roumania, within a period of six months from the coming into force of the present Treaty, which of its pre-war bilateral treaties with Roumania it desires to keep in force or revive. Any provisions not in conformity with the present Treaty shall, however, be deleted from the above-mentioned treaties.

“2. All such treaties so notified shall be registered with the Secretariat of the United Nations in accordance with Article 102 of the Charter of the United Nations.

“3. All such treaties not so notified shall be regarded as abrogated.”

⁷⁶ U.N.T.S., Vol. 48, p. 10. See, for examples of similar notes, ibid., Vol. 26, pp. 103, 109, 115, 119, and Vol. 29, p. 101.

⁷⁷ See Art. 1 of the Registration Regulations, p. 50, supra. The treaties between the U.S.S.E. and Finland were registered as having been deemed to have re-entered into force on the date of the notification by the U.S.S.E. pursuant to Art. 12 of the Peace Treaty with Finland. U.N.T.S., Vol. 48, p. 203.

⁷⁸ See Parry, “The Treaty-Making Power of the United Nations,” loc. cit., where their nature is analyzed in detail.

⁷⁹ Ibid., p. 139.

⁸⁰ See Wolfe, this Journal, Vol. 42 (1948), p. 368 et seq.

⁸¹ See Parry, “The Legal Nature of the Trusteeship Agreements,” British Tear Book of International Law, Vol. 27 (1950), pp. 164–185. All the Trusteeship Agreements so far concluded have been registered ex officio by the Secretariat, ibid., p. 180. See also Schachter, loc. eit., pp. 129–131.

⁸² These cannot be denied. Thus, the provisions of the convention involve for each acceding state certain obligations vis-à-vis the representatives of all other Member States, irrespective of whether all the other Member States have in fact acceded. Moreover, although Member States undertake only obligations in acceding, nevertheless each state may be said to have an interest that every other state assume the totality of such obligations. Every Member State benefits both directly and indirectly whenever another Member accedes. However, the convention may be said never to have entered into force between the Member States which have acceded thereto. See Written Statement of the Government of the United Kingdom, Reservations, Genocide Convention, I.C.J. Distr. 51/10, par. 25 (3).

³³ See First Report of the Sub-Committee on Privileges and Immunities, General Assembly, 1st Sess., Pt. I, Official Eecords, Sixth Committee, Annex 3, par. 5. Further, the International Court of Justice has said of the convention that it “creates rights and duties between each of the signatories and the Organization.” Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports, 1949, p. 179. Here the word “signatories” must be understood to mean acceding states.

* Director, Division for the Development and Codification of International Law, United Nations Secretariat. This note was prepared in collaboration with Mr. Hsuan-Tsui Liu, Legal Counselor, Legal Department, United Nations Secretariat.